Seriously, a different issue was decided in Bowers - whether sodomy could be criminalized. The real issue in Lawrence was whether a particular type of sodomy - homosexual sodomy - could be criminalized, while heterosexual sodomy would be legal.
Had the Supremes stuck to that issue, they still could have overturned the law and not violated stare decisis. IMO, the same result would have been obtained - I doubt the Texas legislature could have come back and criminalized heterosexual sodomy. But the Supremes decided to breach stare decisis and go beyond what was necessary. An activist decision.
Of course, now that it has been decided, even if wrongly IMO, my position is that it is stare decisis and should not be overturned by a later court, unless there is a truly compelling basis.
Amendments, impeachment, lack of enforcement powers and yes judicial wisdom. Not to mention that these judges are appointed by elected officials and continued by other elected officials.
Hmmm. Perhaps you could point to the text of the Constitution that gives the Supremes the power to determine the constitutionality of laws passed by Congress?
Tough cookies for 'em, then. Maybe Utah needs to learn about the Civil War? Since then, we have a single country with a single set of federal laws which do supersede any state laws to the contrary, as you know too. If Utah has a compelling argument, then it shouldn’t be too hard for them to convince the majority of the rest of the country to elect Congresspersons to act that way, and to ratify the amendment against a “rogue” Court. If they can’t do that, then their case must not be all that compelling and most likely shouldn’t prevail anyway.
Eighth-grade Civics class stuff, that ol’ checks ‘n’ balances system. A lovely thing it is, one of the sources of our government’s strength, even if it isn’t fully defined in the Constitution. Why Bricker is arguing as if it didn’t exist is puzzling.
We finally agree on something. Well done.
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I’m sorry, I didn’t make myself clear in my earlier post (#55). Stare decisis would be an effective limit on the power of the judiciary if judges adhered to it.
They sometimes don’t, and so sometimes it is not an effective limit.
But that doesn’t invalidate my point. The problem with your argument is that it has the same weakness - strict adherence to the text of the Constitution would be an effective limit on the power of the judiciary if judges adhered to it.
But there is no way in our system to make judges adhere to either stare decisis or textualism. Barring a complete rewrite of the Constitution to put actual limits on judicial power, the only limit is the fact that the courts don’t have an army to enforce their decisions.
That has always been my problem with your argument. An underlying assumption is that, if judge promise to adhere strictly to the text of the Constitution, that is an actual limit to their power. It’s not. Actual limits are rules that say judges cannot do something, not promises that they will not do something.
And absent any such actual limits to their power, getting nominees to promise to adhere to stare decisis would be as effective, and IMO just as proper, as getting judges to promise to adhere to textualism.
Amendments - if the text of an existing constitutional provision is clearly opposite a judge’s ruling, why is an amendment a check on the power? The Constitution gives Congress power over interstate commerce, and says that if a power is not listed, the federal government doesn’t have it. Congress tries to exercise power of home-grown and home-consumed wheat, and the Court says it can, because even home-grown and home-consumed wheat affects interstate commerce. Under that interpretation, what possible item or trade DOESN’T affect interstate commerce? And how would an amendment help? “Amendment 28: We REALLY, REALLY meant it, about the interstate commerce thing.”
Impeachment - yes. I grant that this is a check on the power of the judiciary. It requires the assent of a majority of the House and the Senate.
Lack of enforcement powers - how so? We are a nation of laws.
Judicial wisdom - look, stop saying this. It’s not a limit on your powers if it’s merely something you impose yourself. The very raising of the question suggests that the exercise of judicial wisdom has failed.
Well, at least you didn’t suggest “legislation” and then instantly back-peddle.
But less frivolously, I still wonder at the suggestion about “lack of enforcement powers”. Are you seriously suggesting that it would be legitimate for one state to simply ignore a Supreme Court ruling with which it disagreed? I seem to remember some unpleasantness on the subject in the Deep South some forty years back. I am a little taken aback by the notion that those people in white sheets were simply exercising their rights to disagree with the Supreme Court.
Please understand that I am not accusing you of being sympathetic to their cause. Just a bit surprised at the offering of an opt-out clause to, say, gay marriage or abortion or one of the other new “rights” I keep hearing are there already.
Well, Congress does have the power to regulate interstate commerce and to pass laws necessary and proper to do that. Whether regulating intrastate commerce that substantially affects interstate commerce is a necessary and proper action is unclear. If the populace wants it to mean only commerce that crosses state lines they can a) elect officials that will appoint judges that agree with that interpetation or b) make an amendment that restricts that power to the limits it desires.
Does this mean you will stop going on about renegade justices?
What do you mean how so? Its been done before and if necessary could be done again.
No, the raising of this question means that some people think it has failed not necessarily that it has. And no, I will not stop saying this. Supreme Court Justices are the most educated, the most experienced and most dedicated to the rule of law government officials we have. They are the most trustworthy of politicians and they can be removed if necessary.
Bullshit, and you know it. The Civil War settled no such issue; it simply made it clear that the states can’t leave the Union. The issue of whether or not states have the right to be different quite a different issue, and the assertion you make is unsupported by the Constitution, which safeguards the rights of states to BE different. Simple 8th grade Civics, you know.
As for the more cogent question from elucidator, it is quite a typical misunderstanding of Marbury v. Madison* to assert that the concept of judicial review was simply pulled out of Chief Justice Marshall’s ass. If you want to start a debate on the issue, I’ll be happy to join, but I suggest first reading at least two works on the subject: The Oliver Wendell Holmes Devise History of the Supreme Court of the United States: Volume 1, Antecedents and Beginnings to 1801 by Professor Julius Goebel, Jr., and Politics and the Constitution in the History of the United States, by Professor William Winslow Crosskey, whose conclusions are somewhat opposed on the subject.
However, in brief, the answer is that:
There was some precedent for the concept of judicial quashing of Acts of Parliament in England prior to 1776,
The people at the Constitutional Convention who spoke in any way reflecting upon the concept of judicial review of constitutionality accepted the concept in some at least general form,
Many states had, during the period 1776 to 1803, adopted judicial review on the part of state supreme courts when addressing the constitutionality of state laws, and
There were acts by the federal government prior to 1803 which were based upon an assumption that the federal bench had the ability to disregard what it considered to be extra-constitutional legislation by Congress. As an example, the Judiciary Act of 1789 implies judicial review in the very fact that it gives jurisdiction to the Supreme Court to review actions of state courts which might concern issues of constitutionality.
I know it isn’t particularly chic at present to accept that C.J. Marshall might actually have been doing what everyone pretty much expected and understood the Supreme Court should do. But regardless of whether it was settled, or expressly granted, it wasn’t just made up out of nothing.
Can’t say the same about Roe v. Wade, really, but hell, no one really understands that decision anyway.
The point is that if the Supreme Court started going bonkers they still don’t have any power to enforce their rulings. Of course this is a last resort and will cause problems but its still a check on judicial power. The Supreme Court is not stupid nor is it blind. It can see this truth and won’t make a ruling that will meet serious opposition from a large majority of the people. In that way its another check on the “activism” of the Judiciary.
Please. It made it clear that the states must accept federal laws as binding on them. What recourse would they have? Secession is out because of the Civil War, as you acknowledge, and there isn’t anything else. There isn’t anything the states they can do about a federal law they dislike except work to change it at the federal level. Clear now?
They do, but not in violation of federal law or the US Constitution. That was the original question, remember?
In even briefer, the answer is that Marbury was indeed an arrogation of power by the Supreme Court, as elucidatorsaid, using the rationale you described. Voluntary acquiescence to it by the other branches is what made it the law of the land.
Since you neither define “arrogation”, nor do you explain how it can be an arrogation of power to do what the writers of the constitution intended, and what logic essentially dictated, this is nothing more than an unsupported assertion, which you are good at, but which is meaningless.
What YOU fail to remember is that it wouldn’t BE a violation of the Constitution in the absence of the unjustified expansion of federalist power by the Supreme Court (so the theory goes). So, to assert that the State of Utah (or wherever) should accept that it is not aggrieved by an expansive reading of Constitutional protections put in place by judicial activists on the bench because the Civil War said it had to submit to federal law is just plain ridiculous.
There are plenty of good attacks to make on the assertion that states lose sovreignity when the Supreme Court acts to expand individual rights; asserting that the Civil War forces them to accept a jackbooted federal judiciary which intends to protect whomever it pleases under whatever interpretation of the Ninth Amendment or the Fourteenth Amendment it cares to try and get everyone to swallow is not one of them.
I think you overstate. It is at least an open question whether Marbury was a result the writers of the constitution intended. Given that there experience was derived from England, where the Courts were certainly subservient to the Parliament, that is by no means a given. Jefferson certainly was appalled by Marbury (and yes, I know, Jefferson was not actually a writer of the Constitution).
This response took some wind out of my sails, mainly because I realized suddenly that it’s correct.
What I’m arguing for is a judicial culture of textualism. You’re right – it would not create any real, enforceable limit on power. But it would create a strong culture of deference to the written word that does not now exist. That culture would be of great force in inhibiting an individual rouge from having any effect, since he would know that his attempts to reason outside the text of the law would be swiftly reversed by his fellows.
I admit - it’s not the Berlin Wall. My enthusiasm for the perfect world temporarily overrode my sense. It’s a limit only by virtue of the fact that when everyone is marching to the same drummer, it’s more difficult for one parade participant to march out of step.
But why, then, is textualism better than stare decisis? Because when we approach an issue of first impression, we face the same questions we would otherwise. So far as I know, no one has ever tried to sue as a next friend on behalf of an unborn child, asking the federal government to recognize his due process right to life. That would be an issue of first impression; stare decisis won’t help us.
So how should judges rule? I’d like to see a bench of pro-lifers, and I want to see Roe overturned, but I’d recoil in horror at a finding that a fetus has due process rights.
Is there anything inherent in the principle of substantive due process that would make such a decision impossible?
