Replies to This Discussion

Permalink Reply by Native Son on February 23, 2013 at 4:52pm

The answer to your first question, in the United States, is explicitly found in Marbury v. Madison, as well as the Constitution.

Also in the United States, the answer to your second question is carved on the front of the Supreme Court building, "EQUAL JUSTICE UNDER LAW."

 

Permalink Reply by Titus Techera on February 25, 2013 at 5:22pm

Well, Lincoln was of the opinion that the Court can do stupid things & that he is not bound by that stupidity. So that a man owes allegiance to the laws, if he is a citizen, & therefore would obey a ruling in one case, but not make a rule of that ruling for other cases. & of course, the Congress has the power to avoid the opinions of the Court. So who decides whether a law is just in America?

Permalink Reply by Rick Shelton on February 26, 2013 at 1:05pm

The Supreme Court is supposed the final arbiter of the Constitutionality of the laws passed. Justice is assumed as being defended by the Constitution. So, assumedly, a law is Just if it is Constitutional.
Congress is not above the Courts, they are co-equal branches. Any law, or for that matter any Government action, directive or decree, can be brought to the Supreme Court to determine Constitutionality.

Permalink Reply by Titus Techera on February 26, 2013 at 4:12pm

Actually, in any but the few cases where the Court has original jurisdiction, the Constitution says both the process & the exceptions regarding appellate jurisdiction are to be decided by the Congress. Article III Section 2, for reference...

As for the co-equal, I hear that alot. It's never seemed likely to me, but then again nobody ever feels the need to prove the point, so it probably suffices to say it. Now, so far as I understand what is meant by equality between the branches of gov't, they fight. One has to win for the system to work; presumably, the victory has never been definitive; but let's not pretend FDR was not a president-for-life, in control of Congress & the Court. Hell, by the end of his run, maybe eight of the guys sitting there were his men. Everybody knows there was a Court that opposed him; that he threatened to legislate out of existence, to be replaced by a Court more to his liking; & a Court that soon stopped opposing him, because, don't you know, he'd been right all along.

Permalink Reply by Rick Shelton on March 6, 2013 at 2:13pm

Co-equal does not mean that the Gov't Branches do not disagree.
Article 3 Section 2 as modified by the 11th Amendment states that the Judicial Branch will have power that extends to all cases arising under the Constitution (Constitionary law), which means the Judicial Branch and not the Legistative Branch determines the Constitutionality of any executive or legislative decision that results in law or policy. This comes before any appellate jurisdiction.

Permalink Reply by Titus Techera on March 6, 2013 at 2:32pm

1. Does the Amendment XI have anything to do with what we are discussing here?

2. Original jurisdiction & appelate jurisdiction are clearly defined in Article III section 2. There is nothing there saying that Congress does not have control over what the Supreme Court can judge. In fact, the opposite is said. There are a couple of specific categories of cases in which the Supreme Court has original jurisdiction. Everything else, no. In every case in the alternative category to original jurisdiction, Congress is said to decide what & how the Court can judge. That the Congress has power to make exceptions is said explicitly.

3. How can branches be co-equal if disagreements on what is legal when it comes up in a lawsuit are always decided by one branch?

Permalink Reply by Rick Shelton on March 6, 2013 at 3:03pm

Umm, yeah Amendment 11 Modified Article 3 (Judicial Branch) of the Constitution so that means it provides the most current verbiage of that Article.

Anything having to do with the Constitutionality of a particular act of legislation by a political body (Executive or Legislative or even State) falls to the US Supreme Court as was confirmed in 1803 by Chief Justice Marshall in Marbury v. Madisson.  To quote "It is emphatically the province of the judicial department to say what the law is.".  And as the highest court in the country the Supreme Court is first and foremost in this effort.  However, the Supreme Court cannot act as an advisor it can only rule on cases.

Permalink Reply by Titus Techera on March 6, 2013 at 3:34pm

1. If the amendment means anything to what we are discussing, tell me, what does it mean? Does it change anything I have argued? Does it change anything you have argued?

2. I know Marbury; everyone does; law of the land; nothing to do with the Constitution--you do not even make any of its arguments to do with the Constitution. The Court has a right to its opinions, after all; you do, too. I suppose the Constitution may be said to deserve it, then.

So by your best lights, in any case judged, five votes on an opinion can decide anything? Tell me, what is your reasoning on the authority of Dredd Scott? Or any other abomination coming down from the Court? Is that the law of the land? What are the consequences, legal & political of that law?

Permalink Reply by Rick Shelton on March 6, 2013 at 4:40pm

1. It defined certain limits to the Judicial Branches powers, specifically about a citizen of one state suing another state and non-US citizens suing a state.  The Supreme Court does not have jurisdiction in such cases.

 

2. If Original Jurisdiction and appelate jurisdiction are defined in the Article then how can the Legislature change those jurisdictions?  The Legislature CANNOT determine what the Supreme Court can judge EXCEPT BY CHANGING THE CONSTITUTION, an Amendment just as in the aforementioned 11th Amendment.  Thankfully, it is not that simple to Amend the Cpnstitution.

2. IF you knew anything about Constitutional Law then maybe it could be argued, I'm no expert but I have looked into a few cases for my own reasons.  A judgement by the Supreme Court can be overturned, by another judgement by the Supreme Court only.  It is the final arbiter until such time as it overturns it's own ruling.  Legislation cannot overturn a ruling except by passing an Amendment to the Constitution that changes a particular law but a ruling can overturn a piece of legislation (excepting an Amendment) by ruling it unconstitutional.  That is what that whole Obamacare thing was about, was it Constitutional or not.  No other court in the land can overturn that ruling.  That is part of the system of checks and balances designed into our system of government.  It's not perfect and certainly not comprehensive but it does work to some degree.

3. Just as in a marriage the partners are co-equal, just as in a business partnership where each has a like portion the partners are co-equal, just as in a corporation where the C level managers are co-equal.  Each partner has their responsibilities to attend and should not interfere with any other partners' matters.  It is that Checks and Balances thing again.  Legislators can vote any law they feel fit but if the Judicial Branch determines it to be UnConstitutional then that law doesn't go on the books.  Just as the Judicial Branch has NO SAY in the matter should the Legislature get an Amendment to the Constitution passed.  Once that happens then whatever it says is, by definition, Constitutional.  And, again, thank God it isn't that easy to get an Amendment Ratified.  Nowhere in Article 1 Section 8 does it say anything about Congress having the power to make any exceptions to what the Supreme Court can or should judge.  A member of the legislature can bring a case to the Supreme Court but once there and accepted by the Court no Legistative member can tell the Supreme Court they cannot judge the case.  The Congress can form Tribunals but they are inferior to the Supreme Court.  The Congress can form lower courts, but they are inferior to the Supreme Court.  So I think you're going to have to be specific on where it is explicitly written in the Constitution that Congress has the power to make exceptions. 

Permalink Reply by Titus Techera on March 6, 2013 at 5:12pm

1. In short, Amendment XI has nothing to do with what we were discussing.
2. I suggest you read again Article III Section 2. It says that Congress can make exception to every category of case reviewed under appellate jurisdiction. It previously says what constitutes original jurisdiction: Almost nothing of interest. If you cannot read black on white saying that Congress decides if something even comes up for judicial review, then you cannot read.
3. You are right, amending the Constitution is hard. Striking down any law the Court likes is far easier by comparison. You leave my question unanswered. What about Dredd Scott? Can plainly unconstitutional law be made law by the Court?

Permalink Reply by Rick Shelton on March 12, 2013 at 11:03am

In the case of original jurisdiction, which, I believe Constitutional Law is of that description the Congress cannot make an exception (without an Amendment that is). Only in the case of appellate jurisdiction can Congress make exceptions. In the case of Amendment XI it changes that appelate jurisdiction for the aforementioned cases of citizens of one state suing another state and non-US citizens suing any state.

Permalink Reply by Titus Techera on March 12, 2013 at 11:04am

Read the categories established about original jurisdiction. What do they really cover? Wouldn't most of Congressional power be exempt from judicial review, if Congress so chose, in accordance with the Constitution?

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