Law School Discussion

What's your constitutional theory? Originalism, Living Constitution, etc...

leostrauss

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No, I think there is enough in the text of article iii to support it.

I think it is necessary. Legislators are encouraged to view new legislation more in terms of its popularity than its constitutionality, and I think the court is the logical place to  check that.  However, it puts great power in the hands of political appointees who while much more logically chosen and thoroughly vetted than legislators, are still human, partisan, and beholden to those who put them in their present positions. I don't mean this a a political comment aimed at any specific group, but rather an observation on an intrinsic and perhaps unavoidable weakness of the system.



Article III
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. 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.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.



Enough text?  Where?  I see nothing in article III that says or even implies judicial review of congressional enactments.  You have just done what every justice since Marshall has done, implying things that are not there.  Why did it take until Marshall?  John Jay didn't infer judicial review.  The nation was in existence under the constitution for 14 years before someone came up with it.



Hamilton argued for it in Federalist 84 did he not? This doesn't make it Constitutional by itself, but what do you say to that?


It took until Marshall for Judicial Review of LEGISLATIVE acts, but there was review of Executive acts before that . .. in the Flying Fish case for instance. What say you to that? I'm not against you. I've thought of writing on this subject before, but I just wonder where you're going exactly.

Just responding to the people who are argue only looking to the text of the constitution.  Just needed to show that "judicial activism" is not necessarily a modern phenomenon, and is actually an American tradition of sorts.

I read it here...

Section 2. 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.

"all cases, in law...under this constitution..."  i.e. if suit is brought or defended on the grounds that a law is in conflict with the constitution, the court has jurisdiction to hear the case and judge the constitutionality of the law in question.  The court cannot repeal or enforce that law in question, but it can render a judgement on the case, and publish an opinion on the law in question.  Thus we have judicial review.

verbal

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No, I think there is enough in the text of article iii to support it.

I think it is necessary. Legislators are encouraged to view new legislation more in terms of its popularity than its constitutionality, and I think the court is the logical place to  check that.  However, it puts great power in the hands of political appointees who while much more logically chosen and thoroughly vetted than legislators, are still human, partisan, and beholden to those who put them in their present positions. I don't mean this a a political comment aimed at any specific group, but rather an observation on an intrinsic and perhaps unavoidable weakness of the system.



Article III
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. 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.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.



Enough text?  Where?  I see nothing in article III that says or even implies judicial review of congressional enactments.  You have just done what every justice since Marshall has done, implying things that are not there.  Why did it take until Marshall?  John Jay didn't infer judicial review.  The nation was in existence under the constitution for 14 years before someone came up with it.

John Jay also said that the their was no reason for their even to be a supreme court. He said that being a supreme court justice was useless because the constitution didnt give any power to the court.

leostrauss

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No, I think there is enough in the text of article iii to support it.

I think it is necessary. Legislators are encouraged to view new legislation more in terms of its popularity than its constitutionality, and I think the court is the logical place to  check that.  However, it puts great power in the hands of political appointees who while much more logically chosen and thoroughly vetted than legislators, are still human, partisan, and beholden to those who put them in their present positions. I don't mean this a a political comment aimed at any specific group, but rather an observation on an intrinsic and perhaps unavoidable weakness of the system.



Article III
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2. 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.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.



Enough text?  Where?  I see nothing in article III that says or even implies judicial review of congressional enactments.  You have just done what every justice since Marshall has done, implying things that are not there.  Why did it take until Marshall?  John Jay didn't infer judicial review.  The nation was in existence under the constitution for 14 years before someone came up with it.

John Jay also said that the their was no reason for their even to be a supreme court. He said that being a supreme court justice was useless because the constitution didnt give any power to the court.

Hamilton, Madison, and Jay all said the judiciary was clearly so limited in power that it could really never be a threat to either of the other two branches. How does this, along with what Jay said about not wanting to be a SCOTUS justice (chief justice at that!) factor into the for/against judicial review without an amendment argument? I like Festus' remarks, but still don't think that the arg for jud. rev. can be found in Art III itself. I like to go to Fed. 84, but then I have a problem justifying jud. rev. with Amendment X. At this point in the thought process I throw in the towel and just try to get comfortable with the whole thing because these theoretical arguments won't change anything.

Let's see what we can expect from the next great leaders of our Court.  Which judicial philosophy do you ascribe to?  Are you 100% behind Justice Thomas and support Originalism, and, if so, why???  (Scalia is faking!!)

Do you think we should have a living constitution?  Why?

How about some other choice?  Any takers?





Scalia takes it step further.  Instead of applying Intentionalism ("originalism") he is a textualist, which is sort of a break off from the Intentionalists like Thomas.  Textualists, of course, focus less on the original intent of the framers and focus more so on the actual words used in the text.  A "Garbage In = Garbage Out" philosophy.  Some think this is exactly the type of restraint that judges need to exhibit at all times. Although I believe in judicial restraint to a degree, I don't think you can do so as blindly as Textualists would have it. Especially when it would create absurd results that clearly go against the purpose of a statute or constitutional provision in question.

And for some strange reason, Textualists always seem to be from the conservative right.  Coincidence?

So my question is this: if the 28th Amendment to the US Constitution was adopted tomorrow, and it clearly said that "There is a Fundamental Right to Privacy guaranteed to the citizens of the U.S. and the Right to Abortion will, from this day forward, be understood by all states to be included within that Right" would Scalia and Thomas still believe in and apply Textualism/Originalism with respect to that amendment? 

wardwilliams

If that were the case, how could scalia and thomas find a way around that? thomas' whole deal is that the constitution says nothing about abortion; scalia's is the same plus roe v. wade wrongly decided because no longstanding tradition of abortion in this country. but if the text explicitly said that, then they'd have to go along with it because everyone agrees (insluding scalia and thomas) that the explicit text of the constitution is a source of fundamental rights.

Interesting. So you think it would turn out to be one of those "Damnit I guess I have to do it, but I'm not gonna like it" type situations? 

Strong

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Scalia would say that the only legitimate way to alter the constitution is amendment. He would accept an abortion amendment because it represents a change in the constitution by the people. As opposed to unelected judges changing the meaning of the constitution over time to suit the current society.

Textualism does take a great degree of subjectivity out that consequentialism and purposim add to the equation.