Didn’t say it was a precise correspondence. Said “akin to”. If I say a zebra is akin to a horse, I am not saying a zebra is a horse. Only that they are similar. Having caught you out on a niggling semantic point, I will be pleased to watch you bleed profusely. Sauce for the goose, which is akin to the gander.
I hereby explicitly state that I hold all such claims to superioir understanding to be suspect. If you have some evidence that I have convinced most readers of anything at all, you are free to produce it.
That is actually quite a magnanimous concession, especially considering the level with which you have approached this discussion. Since this is all even you think you have left, let us proceed:
Let’s start with “arrogate.” The meaning of this word is to claim or sieze without justification. In short, you take it unto yourself in the absence of something else granting it to you.
In deep hiding at best. Note that the Framers did not address it at all in the Constitution. Why ever would that be, d’ya suppose?
In short, they acquiesced to a move that indeed had no basis in the Constitution’s text or “penumbrae”, despite your claim, but only in English political tradition.
Is that legalese for “I’m just pounding the table here but won’t admit it”?
You’ve backed down from shouting “tyranny” to expressing a “worry” now? :dubious: The states do have to accept federal law as binding upon them. It can’t be stated any more plainly, nor does it have to be. If they don’t like it, they can only either address it at a federal level or adjust themselves to it. Federal-level checks and balances on federal institutions are the only ones there are* or can be* if we have a federal government at all. What do you suggest instead, that we reinstate nullification? That’s what it sounds like. How about dumping this troublesome Constitution and restoring the Articles of Confederation? That would at least address your “worries” substantively. :rolleyes:
Your objections would have fit in fine with the political discourse of 1855. In 2005, they’re simply amazing. And not necessarily in a good way.
Bullshit it did. No offense, but modern-day post hoc efforts to second-guess the decision are common. However, as Professor Tribe points out, “No one has formulated a stronger textual argument for the proposition that congressional interpretation is final, or for any other alternative.” And, further, “In the context of the time, therefore, Marbury represented no novel seizure of power; indeed, the records of the Constitutional Convention itself suggest … that the Framers did not explicitly grant federal courts the power of judicial review because they took that power for granted.” (American Constitutional Law, 1978 ed… pp. 22-3).
Where people get hung up with Marbury isn’t really with the postulating of the power, but with the proper exercise of that power. As some might say, the devil is in the details. Inded, that exactly what this whole thread is about: Ok, you’ve got the power to declare a law unconstitutional. Now, what are you gonna do with it?
I didn’t say you had failed to make a precise correspondence. I said, politely, that you had failed to make an accurate analogy. In short, I said you had not illustrated a simlilarity; indeed, that your second statement was quite dissimilar to the first. Sorry you missed that…
Hmmm, I enjoy commentary that advances an argument not at all. If you have something more to offer than your “superior understanding,” feel free to present it for inspection. I’m reasonable about such things. Really.
I have a right in my hand. Everyone agrees it should be acknowledged. The issue is, who will grant me the remedy for the effort of the state to violate it?
Judicial activists want the remedy to be the courts.
Strict constructionalists want the remedy to be the legislatures, or the people, unless the Constitution explicitly addresses the issue.
Am I making sense? If we were discussing the existence of the right, we wouldn’t be talking about the Ninth Amendment and the Tenth Amendment and their effect upon federal power.
As I posted above, Professor Tribe notes that the Framers didn’t bother because they took it for granted. I’ve said this about five times now; you’ve yet to say anything in response that attacks this, either with evidence to the contrary, or with reasoning that puts it in question. If you can’t provide either, I’m not going to bother reiterating.
According to whom? The great ElvisL1ves, and his well-read text on Constitutional Law? I’ve provided evidence, support from noted authors, and you’ve provided your own opinion. Which is worth nothing.
That you fail to comprehend I suppose should be amazing. :rolleyes: We aren’t talking about what states “have to accept.” No one doubts they have to accept federal law. The issue is what remedy for abuse of power. Adress that, if you please, else I won’t bother to respond to you. You’ll note, if you actually read my posts, I’ve already made this distinction at least three times…
Oh, and you might try actually using reason, instead of pseudo-witty commentary. It gets you ever so much further.
Proper application of law and precedent is one that would get you a passing grade on a law school exam. As certain of our traitorous colleagues have confessed on the boards lately (damn you, Minty Green!! :D), what we do is not rocket science.
Basically the same answer as to Gadarene. If you read an opinion and think, “wait a minute, that argument doesn’t flow from the precedent they are supposedly relying upon,” you have yourself an activist decision.
I don’t have the time or energy to tackle this discussion or to quote you competing exerpts from Fallon, Metzler, and Shapiro or from Tushnet, Sunstein, Seidman, and Stone. Suffice to say that it’s not nearly as clear a case as you make it out to be. My rule of thumb is that things are always more complicated than they seem.
SuaSponte:
So – and this is crucial – judges could reach opposite results on the same question and both still be “properly” applying law and precedent, right?
And yet, no one objected at the time. No state refused to grant its own supreme court judicial review powers. No amendment restricting such power was sent to President Jefferson, who surely would have signed it had the concept been so controversial. Given the dispatch with which the Eleventh Amendment was produced, this isn’t idle speculation, either.
I say again, it’s all post hoc reasoning. Fun for you and me to engage in, but meaningless as a real attack upon the actual decision at the time.
In theory, I don’t know, exactly. In practice, no.
And in the context of this kind of discussion, neither is relevant. There is no meaningful distinction to be drawn between a right that exists but nobody recognizes, and a right that doesn’t exist. It’s like being inside a computer during a run, and arguing if an object exists somewhere but isn’t yet instantiated, or if it has never been written. It doesn’t matter, neither kind is going to have any effect.
Same thing. It doesn’t change anything if rights don’t exist anywhere before we create them, or if they exist but nobody recognizes that they are there. Whether rights are being created ex nihilo or merely brought to our attention in some way, both functions are properly those of the States or the people, for all rights not yet enshrined in the Constitution.
That the people of the US as a whole have the same power to establish rights as do the several states. I am thinking of things like amendment, obviously, as well as stuff like national referenda, or even to some degree having Congress express the national will by establishing some new right via legislation. Providing it didn’t conflict with some right already established in the Constitution, it would be legit.
Thus, in my view, it would be perfectly legitimate for each state to decide whether or not to include a right to abortion or gay marriage or what have you for itself. Or for Congress to make it happen thru appropriate legislation.
Um, no. I doubt that Mr. Bricker will go with you on that at all.
“Judicial activism” is not a matter of being “unreasonable.” It is a matter of underlying assumptions to decision making. The “judicial activist” sees him/herself in the role of arbiter of competing viewpoints, wherein that role allows his/her own viewpoint a say in the result. He/she doesn’t limit a decision to looking at the text of the Constitution, the laws of Congress, the laws of the states, the regulations promulgated by administrations, the prior decisions of relevant courts, and applying this compilation of text to the facts of the case before him/her. Instead, he/she looks behind the text to the ideas it tries to express. He/she looks at society to see if old ways of thinking need to be modified to address new issues. in short, he/she engages in a subjective application of what he/she finds important principles to be, rooted in the law, but not derived directly from the text of same.
A judicial activist issues Brown v. Board of Education. A judicial activist also issues Lochner v. New York. Both decisions were “reasonable” as long as you accept the underlying assumption of what review standards and methods will be used.
This just isn’t true, at least with regard to the broader principle of judicial review. Martin v. Hunter’s Lessee is a useful illustration. And take, for example, Fallon, Meltzer, and Shapiro’s footnote regarding the pre-Marbury state of affairs:
The Federal Courts and the Federal System 12 n.69 (5th ed. 2003). The text goes on to examine Marbury in detail in pp. 55-73.
Besides, my argument is not that Marbury was controversial at the time, but that Marshall’s reasoning does not necessarily withstand scrutiny and that the result cannot be considered to be wholly apolitical and objective.
I think that is exactly my definition of a “judicial activist”. Your definition is more detailed than mine, I concede, but it’s the same.
I’m not sure I agree as to Brown. I’d have to go back and review to be sure, but at least arguably it was Plessy that was the activist decision, and Brown was a corrective decision.
I’ve noted that it is not in any way in the Constitution. That is fact, your childish invective notwithstanding.
That too is in the eye of the beholder. You have not distinguished between abuse and use of power in the example you’re flogging, except to imply that if “The Great DSYoungEsq” disagrees with it, it’s therefore abuse. Even granting that a particular use of power constitutes abuse, the remedies for it are in the ol’ usually-reliable checks and balances system. The one that you disparage. That’s how it works, old bean, that’s how it works. That’s the only way it can work, the only way anybody’s seriously proposed to make it work. So what *do * you offer instead of the checks and balances system against this hypothetical abuse of power? You’ve proposed nothing whatsoever, you’ve only indulged a desire for schoolyard neenerneenering.
Consider the source.
I already *told * you, when come back, bring argument. Now go do it.
This is not a very rigorous standard. I think it is an extremely worthwhile exercise to consider formally how a judge’s voluminous published opinions on presumably many different topics can map to either “results oriented” or “not results oriented”. Even if we cannot specify this function, we should be able to say something about its properties, characteristics, or perhaps its limiting cases.
If we really can’t say anything about it, then for all intents and purposes, it doesn’t exist.
I think that is exactly my definition of a “judicial activist”. Your definition is more detailed than mine, I concede, but it’s the same.