Since Jason chose not to answer the question I will.
I did answer the question. The Constitution establishes the Supreme Court. If you knew anything about the history of law, or had ever heard ofThe Spirit of the Laws, or ever actually studied the way that western law came up, you would know that the founders understood the role of the judiciary to be to interpret laws. When they established the Supreme Court, they established a body to interpret law.
Then why does the Constitution not say as such? Show me in Article III where the Judiciary is given the power of judicial review.
Where does the Constitution give explicit power to the judiciary to do anything? Have you read Article III? Have you ever bothered to read the Constitution you vow can't be interpreted -- even though it is? It merely sets up the Supreme Court and doesn't delegate any powers to it. So by your amazing reasoning, the Supreme Court should exist but not do anything.
At any rate, it doesn't matter. The Supreme Court does interpret law, the same it's been doing since its first case in 1793. The Supreme Court does interpret the Constitution. The Supreme Court does decide whether laws are unconstitutional. The Supreme Court does make the document a living, breathing one.
It provides in Article III another mechanism for SCOTUS to interpret the law.
Text of Constitution that specifically authorizes interpretation of laws please?
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
appellate adj having power to review decisions of lower courts
jurisdiction n the power, right, or authority to interpret and apply the law : the limits or territory within which authority may be exercised (emphasis mine)
I'm not a constitutional lawyer or anything like that, but it seems pretty damn clear to me that SCOTUS has the authority to interpret the law.
Where does the Constitution give explicit power to the judiciary to do anything? Have you read Article III? Have you ever bothered to read the Constitution you vow can't be interpreted -- even though it is? It merely sets up the Supreme Court and doesn't delegate any powers to it. So by your amazing reasoning, the Supreme Court should exist but not do anything.
At any rate, it doesn't matter. The Supreme Court does interpret law, the same it's been doing since its first case in 1793. The Supreme Court does interpret the Constitution. The Supreme Court does decide whether laws are unconstitutional. The Supreme Court does make the document a living, breathing one.
There is a big difference between interpreting the constitutionality of a law and ruling on a case based on the law.
Wait... I'm seeing a communctionation breakdown here.
Yes, the Judicial must be able to interpret (understand) the law in order to apply it when a case comes before it. My problem is when the court takes an existing law and interprets it in such a way as it was not intended to be used or creates new government powers where none previously existed.
(Associate Justice)Story first confronted the argument that Federal Judicial power came from the states, and therefore that the Supreme Court had no right to overrule a state's interpretation of the treaty without its consent. Story found that it was clear from history and the preamble of the Constitution that the Federal power was given directly by the people and not by the States. Story then found that Article III, Sec. 2, Cl. 2, stating that "in all other cases before mentioned the Supreme Court shall have appellate jurisdiction" showed a textual commitment to allow Supreme Court review of state decisions. If the Supreme Court could not review decisions from the highest State court, the State courts would be excluded from ever hearing a case in any way involving a Federal question, because the Supreme Court would be deprived of appellate jurisdiction in those cases. Thus, because it was established that the States had the power to rule on Federal issues it must be true that the Supreme Court can review the decision or the Supreme Court would not have appellate jurisdiction in "all other cases." Furthermore, the Supremacy Clause declares that the Federal interpretation will trump the States interpretation.
Story then quickly rejected concerns over State Judicial sovereignty. The Supreme court could already review state executive and legislative decisions and this case was no different. Story then confronted the arguments that State Judges were bound to uphold the Constitution just as Federal judges were, and so denying state interpretations presumed that the State Judges would less than faithfully interpret the Constitution. Story countered that even if State Judges were not biased, the issue was not bias but uniformity in Federal law. Furthermore, the legislative power to remove a case to Federal court would be inadequate for maintaining this uniformity. Finally, Story applied these principles of Judicial review to the decisions below and found that the state court's decision was in error.
Rym's Cherokee Portion will become angry if you were Old Hickory's friend.
Does Rym cry if you throw a piece of trash on the ground in front of him?
The Constitution does not need to specifically grant a right to privacy because the right already exists. The Constitution can only remove that right, not grant it.
My problem is when the court takes an existing law and interprets it in such a way as it was not intended to be used or creates new government powers where none previously existed.
I do not see 'finding' and protecting the rights of the people as activism or an indication of a "living" Constitution. I do consider "finding" government powers that do not exist to be judicial activism and indicative of a "living" Constitution. The Constitution is a limit on government not a granter of rights to the people.
So you have no problem at all with the Court discovering unenumerated rights, such as the right to privacy?
I will agree that SCOTUS has the power to judge laws to be constitutional or not but I will qualify that by stating that it did not have that power until the Marshall Court made it so.
I will also reiterate that my problem with a "living" Constitution is that because the Constitution is a limit on government and not a document that grants rights to the governed treating it as a "living" document is dangerous in that accepted practices and rules can be changed on a whim resulting in the government usurping power from the people. The Amendment process exists for making changes to the Constitution and was designed not to be an easy process.
So you have no problem at all with the Court discovering unenumerated rights, such as the right to privacy?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In what way does this delegate more power to the government? It seems like the Constitution is enumerating basic human rights to me....
The Amendment process exists for delegating more power to the government.
Except when it, you know, specifically protects the rights of the people from the Government...
I fixed that in the above post when I realized my wording was wrong.
OK, then let's look at how you backpedaled now.
The Amendment process exists for making changes to the Constitution and was designed not to be an easy process.
Ah, there we go. So the Constitution has a built-in mechanism for update itself. Regardless of whether it's easy, that still makes it a living, breathing document.
The Amendment process exists for delegating more power to the government.
Except when it, you know, specifically protects the rights of the people from the Government...
I fixed that in the above post when I realized my wording was wrong.
OK, then let's look at how you backpedaled now.
The Amendment process exists for making changes to the Constitution and was designed not to be an easy process.
Ah, there we go. So the Constitution has a built-in mechanism for update itself. Regardless of whether it's easy, that still makes it a living, breathing document.
No, more like a Frankenstein monster where you keep taking on new parts as opposed to replacing existing parts.
I'm obviously pro-choice. I obviously believe that the courts have the power of judicial review. However, I think that Roe v. Wade was wrong because they used the fourteenth amendment as the foundation. They should have used the tenth amendment, not the fourteenth.
So you have no problem at all with the Court discovering unenumerated rights, such as the right to privacy?
No.
SoRoe v. Wadeis fine with you?
If by Roe v. Wade you mean abortions should be legal only up and until the fetus is viable outside of the female body or in cases where the mother's life is in jeopardy than yes, I agree they should be legal. I don't know if I agree that it is a "right to privacy" issue but I do agree that up and until the fetus could survive outside of the human body (yes I know even full-term babies require a lot of care outside of the womb) abortion should be legal. However, the father should also have some rights as the fetus is partially his as well.
If we had the technology to remove a fetus and grow it in an artificial womb would abortion be the big issue that it is?
I'm obviously pro-choice. I obviously believe that the courts have the power of judicial review. However, I think that Roe v. Wade was wrong because they used the fourteenth amendment as the foundation. They should have used the tenth amendment, not the fourteenth.
Why?
So you have no problem at all with the Court discovering unenumerated rights, such as the right to privacy?
No.
SoRoe v. Wadeis fine with you?
If by Roe v. Wade you mean abortions should be legal only up and until the fetus is viable outside of the female body or in cases where the mother's life is in jeopardy than yes, I agree they should be legal. I don't know if I agree that it is a "right to privacy" issue . . .
Why do you think it's not a right to privacy issue?
Oops. I meant 9th amendment instead of 10th. The district court that decided on Roe v. Wade said that the right to abortion was one of those that is retained by the people. A 14th amendment argument says that the laws that banned abortion violated due process and a right to privacy, which they might have. However, a 14th amendment argument means that it is ok to have a state law banning abortion that does not violate due process or privacy rights. A 9th amendment interpretation would make abortion a right retained by the people, and so no law that takes away that right would be constitutional.
I also think we should use the 9th amendment to get rid of the DMCA and such, as it infringes upon other rights held by the people, such as first sale.
No, more like a Frankenstein monster where you keep taking on new parts as opposed to replacing existing parts.
So the three-fifths clause was never replaced then? Good day to be a white property owner.
No. It was effectively removed by the Fourteenth Amendment, which is the way to do it. If it had been removed via the judiciary I would have had a serious problem with it.
Why do I not see abortion as a right to privacy issue? It might just be a sign of the times but I don't see any reason why it should not be legal in the first place. Until the fetus is able to function (with adequate medical care) outside of the mother's body it is effectively a parasite. Albeit a benign and often wanted parasite but still a parasite.
No. It was effectively removed by the Fourteenth Amendment, which is the way to do it. If it had been removed via the judiciary I would have had a serious problem with it.
That's not what you've been saying, though. Your assertion has been that the Constitution has to stay the way the original founders wanted, and that it's not living and breathing. But you admit it's been changed -- parts replaced, new parts added. So it was the legislative branch instead of SCOTUS; it makes no difference. The fact is the Constitution is changed. It is living and breathing.
No. It was effectively removed by the Fourteenth Amendment, which is the way to do it. If it had been removed via the judiciary I would have had a serious problem with it.
Steve, I think the thing you don't understand about judicial review is that it doesn't change the constitution, it changes laws.
Let's say the 14th amendment was put through as a law, instead of an amendment. The courts would have judicially reviewed it and declared it unconstitutional, kicking its ass to the curb. Without judicial review, congress could make laws that contradict the constitution, and the executive branch could enforce those laws, and nobody would be able to stop them. Judicial review guarantees that the long and difficult amendment process is the only way to actually change the constitution, and prevents congress, or anyone else, from skirting around it. Not once has there ever been a change to the constitution from judicial review. They simply check to see whether or not laws that have been passed contradict the constitution, and if they do, they kick those laws out.
However, a 14th amendment argument means that it is ok to have a state law banning abortion that does not violate due process or privacy rights. A 9th amendment interpretation would make abortion a right retained by the people, and so no law that takes away that right would be constitutional.
I understand what you mean by that, but just try to think of a state law banning abortion that would not violate the 14th amendment due process or the right to privacy under the 14th amendment.
I understand what you mean by that, but just try to think of a state law banning abortion that would not violate the 14th amendment due process or the right to privacy under the 14th amendment.
Ok, let me try in non-legal speak (because I obviously have no legal speak skills).
Any doctor who performs any of the following procedures (list of abortion procedures) shall lose all medical licenses, and go to prison, etc.
We make it illegal for doctors to perform all sorts of other procedures, like lobotomies and such, so I don't think a law preventing them from performing abortions would be unconstitutional in terms of right to privacy. If you do think that right to privacy would make such a law unconstitutional, then I ask why a law that bans lobotomies in a similar fashion is not also unconstitutional? If you used the 9th amendment you could prevent the banning of abortions, but allow the banning of lobotomies and other terrible procedures.
Why do I not see abortion as a right to privacy issue? It might just be a sign of the times but I don't see any reason why it should not be legal in the first place. Until the fetus is able to function (with adequate medical care) outside of the mother's body it is effectively a parasite. Albeit a benign and often wanted parasite but still a parasite.
Funny, Justice Blackmun thought that the whole case was about the right of privacy:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
I understand what you mean by that, but just try to think of a state law banning abortion that would not violate the 14th amendment due process or the right to privacy under the 14th amendment.
Ok, let me try in non-legal speak (because I obviously have no legal speak skills).
Any doctor who performs any of the following procedures (list of abortion procedures) shall lose all medical licenses, and go to prison, etc.
We make it illegal for doctors to perform all sorts of other procedures, like lobotomies and such, so I don't think a law preventing them from performing abortions would be unconstitutional in terms of right to privacy. If you do think that right to privacy would make such a law unconstitutional, then I ask why a law that bans lobotomies in a similar fashion is not also unconstitutional? If you used the 9th amendment you could prevent the banning of abortions, but allow the banning of lobotomies and other terrible procedures.
The construction of the statute does not prevent the Court from enquiring into its effect. Why do you think such laws don't exist now? As written, it's obvious that your statute is intended to produce an unconstitutional result, and so it would be found unconstitutional.
Also, such a law was part of the Texas criminal code that the Court found unconstitutional in Roe.
Article 1191. Abortion
If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By "abortion" is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.
Art. 1192. Furnishing the means
Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall.
Why is a law that bans lobotomies not unconstitutional? It's hard to imagine why anyone would WANT a lobotomy, so it's hard to imagine why a ban would violate anyone's right of privacy. Let's say someone did want a lobotomy. The Court would probably find that the state's interest in protecting its citizens from risk of harm would outweigh the individual citizen's right to have a lobotomy.
Why do I not see abortion as a right to privacy issue? It might just be a sign of the times but I don't see any reason why it should not be legal in the first place. Until the fetus is able to function (with adequate medical care) outside of the mother's body it is effectively a parasite. Albeit a benign and often wanted parasite but still a parasite.
Funny, Justice Blackmun thought that the whole case was about the right of privacy:
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.
I don't see it a right to privacy issue. I see it more as a personal choice.
The political and social climate was different in 1973. Back then it was very likely seen as an issue of privacy due in part to the stigma associated with the operation. Today? Meh, if you don't want to be a parent I see no reason to force you to be one.
Scott: If judicial review is used strictly to give laws a thumbs up or thumbs down I'm cool with that. My concern is when the court interprets a law in such a way as to grant more power to the government or take away the rights of the governed instead of simply affirming it or throwing it out. Example: Dred Scott v. Sandford case of 1856. Upon entering a state where slavery is illegal he should have been immediately removed from the shackles of slavery if he so chose.
The court is well within its rights to judge a law unconstitutional on the basis of the outcome of the law (banning abortion operations but not abortion specifically). This came up during the civil rights struggle where southern towns would close public pools rather than integrate them. It was found that even though on the surface the law was applied equally to all more whites had access to private swimming pools than blacks did. Thus it was found that many of these laws and closings were designed to harm blacks while they could (on the surface) be said to apply equally to all.
I have no problem with the judiciary striking down such laws that are designed to hurt one class of people while professing to treat everyone equally.
My concern is when the court interprets a law in such a way as to grant more power to the government or take away the rights of the governed instead of simply affirming it or throwing it out.
They aren't adding or taking away any powers to anyone. They are simply confirming what powers people do have, when they are mistaken. Quite often a state will try to do something it does not have the power to do. The judges will look at the law, and tell the state they were wrong. Likewise, Sometimes someone will complain that the state is doing something beyond its power, the judges will read the law and say "oh, the state does have the power to do that". All judges do is read the law and tell people when they are acting in contradiction to it. Judicial review is just part of that. It is just when they tell the legislative branch they have acted in contradiction to the law.
Comments
At any rate, it doesn't matter. The Supreme Court does interpret law, the same it's been doing since its first case in 1793. The Supreme Court does interpret the Constitution. The Supreme Court does decide whether laws are unconstitutional. The Supreme Court does make the document a living, breathing one.
Wait... I'm seeing a communctionation breakdown here.
Yes, the Judicial must be able to interpret (understand) the law in order to apply it when a case comes before it. My problem is when the court takes an existing law and interprets it in such a way as it was not intended to be used or creates new government powers where none previously existed.
I will also reiterate that my problem with a "living" Constitution is that because the Constitution is a limit on government and not a document that grants rights to the governed treating it as a "living" document is dangerous in that accepted practices and rules can be changed on a whim resulting in the government usurping power from the people. The Amendment process exists for making changes to the Constitution and was designed not to be an easy process. No.
In what way does this delegate more power to the government? It seems like the Constitution is enumerating basic human rights to me....
If we had the technology to remove a fetus and grow it in an artificial womb would abortion be the big issue that it is?
I also think we should use the 9th amendment to get rid of the DMCA and such, as it infringes upon other rights held by the people, such as first sale.
Why do I not see abortion as a right to privacy issue? It might just be a sign of the times but I don't see any reason why it should not be legal in the first place. Until the fetus is able to function (with adequate medical care) outside of the mother's body it is effectively a parasite. Albeit a benign and often wanted parasite but still a parasite.
Let's say the 14th amendment was put through as a law, instead of an amendment. The courts would have judicially reviewed it and declared it unconstitutional, kicking its ass to the curb. Without judicial review, congress could make laws that contradict the constitution, and the executive branch could enforce those laws, and nobody would be able to stop them. Judicial review guarantees that the long and difficult amendment process is the only way to actually change the constitution, and prevents congress, or anyone else, from skirting around it. Not once has there ever been a change to the constitution from judicial review. They simply check to see whether or not laws that have been passed contradict the constitution, and if they do, they kick those laws out.
Any doctor who performs any of the following procedures (list of abortion procedures) shall lose all medical licenses, and go to prison, etc.
We make it illegal for doctors to perform all sorts of other procedures, like lobotomies and such, so I don't think a law preventing them from performing abortions would be unconstitutional in terms of right to privacy. If you do think that right to privacy would make such a law unconstitutional, then I ask why a law that bans lobotomies in a similar fashion is not also unconstitutional? If you used the 9th amendment you could prevent the banning of abortions, but allow the banning of lobotomies and other terrible procedures.
Also, such a law was part of the Texas criminal code that the Court found unconstitutional in Roe. Why is a law that bans lobotomies not unconstitutional? It's hard to imagine why anyone would WANT a lobotomy, so it's hard to imagine why a ban would violate anyone's right of privacy. Let's say someone did want a lobotomy. The Court would probably find that the state's interest in protecting its citizens from risk of harm would outweigh the individual citizen's right to have a lobotomy.
The political and social climate was different in 1973. Back then it was very likely seen as an issue of privacy due in part to the stigma associated with the operation. Today? Meh, if you don't want to be a parent I see no reason to force you to be one.
Scott: If judicial review is used strictly to give laws a thumbs up or thumbs down I'm cool with that. My concern is when the court interprets a law in such a way as to grant more power to the government or take away the rights of the governed instead of simply affirming it or throwing it out. Example: Dred Scott v. Sandford case of 1856. Upon entering a state where slavery is illegal he should have been immediately removed from the shackles of slavery if he so chose.
The court is well within its rights to judge a law unconstitutional on the basis of the outcome of the law (banning abortion operations but not abortion specifically). This came up during the civil rights struggle where southern towns would close public pools rather than integrate them. It was found that even though on the surface the law was applied equally to all more whites had access to private swimming pools than blacks did. Thus it was found that many of these laws and closings were designed to harm blacks while they could (on the surface) be said to apply equally to all.
I have no problem with the judiciary striking down such laws that are designed to hurt one class of people while professing to treat everyone equally.