Reviewing Judicial Review

Alrighty.. so I said I would parse and debunk this bit of weirdness, so here it is;

Tom,

You must remember that I am an Originalist. Originalists believe the best way to understand the Constitution is to determine how the Framers intended the Constitution to be followed. To do this, I look to several sources to determine this intent, including the contemporary writings of the framers, letters, resolutions, writings by the founders while they held office, local publications and articles, the Federalist Papers, and the notes from the Constitutional Convention itself such as Madison's notes on the Constitution, which are quite detailed when it comes to the debates during the convention. That is the most pure way of understanding the Constitution. Of course the opinions of the Framers varied, and they battled endlessly. The Federalists wanted a more centralized system, and the anti-federalists feared the creation of a federal government in the first place. In that sense, the Constitution was considered to be a "centrist" document.

Doug describes exactly what the legal system in the early US went through in establishing its views and (eventual) tradition. Labelling it "Originalist" is a non sequitor. It's meaningless.

The difference between Doug and our current system of law is that lawyers and judges are trained. They go to law school and they prove they grasp the concepts. They then become certified to practice in their field. It's a rigorous academic profession.

Doug disdains higher education and thinks he can simply do some reading on the internet and become a better scholar on Constitutional history than a lawyer.. a law professor.. or a judge. If Doug actually debated a real lawyer on Constitutional issues, he'd get his ass handed to him in very embarrassing fashion.

Of course.. judges established precedent by reviewing the intent behind the wording in the Constitution. It's been going on for over 200 years and it will continue to do so, and there is a legal framework around how precedent works.

The problem is, Doug disagrees with the way many judges, over hundreds of years, have made decisions on Constitutional issues. That's fine. It's quite okay to disagree. The problem is that Doug ignores reality and states his view as if it is a given, and it is everyone else that is wrong.

One thing is clear when you read those writings, except for a noted few like Alexander Hamilton (who initiated "interpreting" the Constitution through Implied Powers as a way of getting around it, and as a way of creating federal authorities that just does not exist), there was a great fear that if they created a federal government, it would become tyrannical. One of the tools of tyranny is a strong judiciary. Therefore, there was actually a huge argument against creating a judicial branch in the first place. The compromise was to give the judicial branch as few powers as possible. Then, after that, they still went back with the 11th Amendment and took away even more of the court's authorities.

Whether or not there was a "huge argument" about establishing a judiciary is ultimately irrelevant. The courts exist, and they were established under the Constitution.

But what about the 11th amendment that Doug seems to think snipped the balls of the courts? This is the actual text;

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

All that is saying is that a citizen of one state (or a foreigner) cannot sue a state they are not a citizen of. That's it. Nothing more. Yet, Doug tries to construe that as neutering the judiciary, but does nothing of the sort. The amendment doesn't actually limit judicial power, but removes recourse from an individual citizen. It has less to do with the courts than it does with a very narrow right of legal redress.

That goes from a very narrowly scoped judgement on a single type of lawsuit to "(taking) away even more of the court's authorities" is classic Gibbs. To him, it makes perfect sense, but you have to remember that everything that passes through Doug is colored by his fundamental insanity.

That insanity also leads to everything he writes being sprinkled with paranoia. The T-Baggers like to use the word "tyranny" a lot.

Step 1. Federal Courts
Step 2. ???
Step 3. Tyranny

We all know what the courts do. They act as arbiters in civil and criminal proceedings, in order to ensure adversaries adhere to law when they argue their cases before a jury. The courts provide another level of recourse in the appeals process to ensure that the rights of a citizen are not abused. The courts review legislation via lawsuits to ensure it complies with Constitutional provisions, further protecting the rights of citizens.

From that - Doug comes up with "tyranny". There's no other way to explain that other than conspiratorial craziness.

People like John Marshall and Joseph Story, however, being students of Hamilton's way of thinking, worked to give the courts more power, in the hopes that eventually the judiciary could be used to usurp the Constitution, or override the limiting principles of the founding document. They had forgotten the incredible power wielded by the British Courts, or perhaps they had not forgotten, and desired control over the American form of government through a judicial tyranny as was the modus operandi of the British Courts.

Naturally, Doug provides no evidence of that. He read it someplace and thought it sounded good because it validates his paranoia.

Has there ever been a case where a Supreme Court decision was reached based on a faulty view of the Constitution? Yes, of course. Take Citizens United for example. In this case, the court ruled that a corporation had the same standing as an individual citizen when it comes to "free speech" rights, and thus corporations can continue to buy politicians.

I happen to think that it's within Congress' authority to limit or eliminate campaign contributions from corporations. I disagreed with the Supreme Court nullifying parts of the McCain–Feingold Act. That's okay though! Our system is not perfect, and so long as we put people in a position to make a decision, whether they are a Congressman, a President, or a Supreme Court justice, there is a chance that they will make a decision I don't agree with. That's the nature of having a civilized society.

While a Congressman can be replaced, and a President is term limited, some judges are appointed for life and there is a very good reason for that. However, sometimes precedent is not followed and another court down the road may reverse a decision. Government, despite the wishes of the Tbaggers, does evolve along with society. Government is obviously made up of citizens and (hopefully) as society advances, so does the judgement of the people that make up our government.

I have called you ignorant on this issue because "ignorance" is a state of simply not knowing. What is dangerous in your case is that you "think" you know. Your argument is that judicial activism has been in place for over 200 years, therefore, since the federal government has operated in that manner (which is not entirely true, it has been progressing from what-it-was to what-it-is incrementally over the last 200 years) during that time, that must mean it is the way it should be run, or the way it was intended to be run.

That brings to mind the old saying, "If everyone else is jumping off a cliff, will you too?"

The term "judicial activism" is only applicable when a Loon disagrees with a court ruling. Remember - Doug applauded and approved of a federal courts ruling that a part of the Obama health care plan was "unconstitutional". Doug went even further by explicitly stating the court had no authority to rule as it did, but it was okay in that case because there was no other way to "stop Obama". It wasn't "judicial activism" for the sole reason that Doug approved of it. That's how intellectually bankrupt he is.

The logical incoherence of that view is plain, but in Doug's world, it makes sense because Doug couldn't logic his way out of a wet paper bag.

In reality, there is no such thing as "judicial activism". Since Marbury vs. Madison, the courts have had the authority of judicial review. My point was that Marbury was well founded legally, and has been non-controversial as legal precedent for over 200 years.

Silly analogies is one of Doug's few tools. Because a tiny sliver of the American population thinks the courts lack a basis for judicial review, the rest of us are "jump(ing) off the cliff" like lemmings because we think the system, as if functions now, is a good thing. You just can't get any dumber than that.

Doug has no answer for Congress' lack of legislating away judicial review, akin to the 11th amendment. Congress has not proposed a Constitutional amendment specifically prohibiting judicial review and letting Americans vote on it. "Conservative" judges do not refrain from their role in the judicial review process. Why not?

In Doug's hallucinations, it's everyone else that are the "ignorant" ones, and he's the 172 IQ scholar that knows how things are supposed to be done, as opposed to the way it has been done for hundreds of years. Then he has the gall to insist that those that disagree with him are "ignorant".

I am sure you are correct that the conservative justices on the Supreme Court may not see eye to eye with me on all of the aspects of the judiciary. Like you, they have been subject to conditioning by a philosophy that began to infiltrate our system way back during the days of Marbury v. Madison. Clarence Thomas, in particular, is probably the closest to fully understanding the Constitution, but even he has gotten it wrong a few times, McDonald v. Chicago being a case in point. He argued that the Second Amendment is to be applied to the states because of the 14th Amendment. The 14th Amendment specifically applies to the emancipated slaves, and giving them equal protection. It does not change the Bill of Rights from applying to the federal government to the states as Thomas, and many folks, have suggested.

And now we're back to the paranoid fantasies. We've all been "conditioned".. our system has been "infiltrated".

More to the point though, this points out how Doug is incapable of using simple reasoning skills to understand a concept. Doug thinks the 14th amendment "specifically applies to the emancipated slaves". Therefore, the protections afforded a citizen only apply if you are a former slave - none of which are living anymore (obviously), therefore we might as well just remove that amendment from the Constitution.

Just when you think he can't get any dumber....

This is the text of section 1 of the 14th amendment;

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Seems pretty clear, doesn't it? Notice the lack of any reference to slaves in the text. It was written that way for a reason.. so that it would apply to "all persons", and "any person" as it plainly states in the text.

Again - you have to have had a major brain injury to believe that only applies to emancipated slaves, even if the original cause for the amendment was slavery. It was written specifically to grant rights regardless of race or status.

Doug does not think that the "equal protection" clause of the 14th amendment protects you or I because we're not emancipated slaves. We are not protected from unlawful searches and seizures because we're not former slaves. Doug does not think the cornerstone of our personal freedoms and liberties applies to us because we're not slaves.

And he still has the temerity to call me "ignorant". It's stunning, really.

You claim that I do not understand what judicial review is. You then wrote: "The courts don't 'change law' - they simply decide if a law is constitutional or not, and if it is not, they have the authority to invalidate the law."

Read what you wrote very carefully. You contradict yourself. You say the courts don't change law (which they have been doing, by the way, but that is another discussion), and then you wrote that they have the authority to invalidate the law. Invalidating the law is changing the law.

I suppose that's just semantics, but I'll concede the point. However, the crucial point is that judicial review does not modify a law. For example, when the court struck down prohibitions on inter-racial marriage in Loving vs. Virginia, the court did not alter the text of the marriage laws of 13 states. They completely invalidated them all.. tossed.. into the shredder.. gone. In order for those 13 states to have marriage laws on the books, they had to re-write their law in order to comply with the courts ruling and not include prohibitions on inter-racial marriage. They had to do that legislatively as they would any new law. Therefore, while that may be considered a "change" to the law, my point was that the court simply invalidated the whole thing.

The job of the courts is to apply the law to the cases they hear. The law is the law, regardless of their opinion of the law. If they feel something is wrong with the law, such as it being unconstitutional, they can write an "opinion" stating so, and it is up to the legislature on whether or not to follow that suggestion. If the legislature chooses not to strike down the law, regardless of the court's opinion, if the law is in fact unconstitutional, the states can still ignore (or nullify) the law, since the states (not the courts) are the final arbiters of the U.S. Constitution. The States may very well make that decision based on the opinions of the courts, but no part of government "must" do so at the behest of the courts. The judiciary was not set up to supervise the legislatures.

This is bizarre. Doug is arguing that the courts have zero authority, but may only offer an "opinion" - which the Congress or State Legislature is free to comply with or ignore. Why even have a Supreme Court when its decisions lack any weight at all?

Further, individual states are free to ignore federal legislation depending on their own interpretation of the Constitutionality of the law. Yesterday, we saw that Doug argued the President can ignore Congressional legislation if he thinks the law is unconstitutional. In terms of judicial review, what Doug is arguing is that Congress police itself on the Constitutionality of it's own laws.

Regarding that, Alexander Hamilton said in Federalist 78;

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Hamilton recognized the absurdity of leaving the authority of Constitutional requirements to the same body that may be violating them. Thus was formed the basis of argument in Marbury vs. Madison and judicial review becoming the accepted procedure we have today.

However, using your argument, would not the lawless Obama administration be acting criminally since they have not recognized Judge Vinson's invalidation of Obamacare? If what you say is true, and the courts invalidate unconstitutional law, then isn't it the Democrat Party's prerogative to cease and desist when it comes to the implementation of the Health Care Reform Law because a court has invalidated it?

Oh, I see, "rules apply to thee, not to me, " when you are a liberal.

In many ways, the Obama administration is not following the law, or the Constitution. Most recently, starting a war with Libya was a violation of the Constitution and the War Power Act.

Doug is so misinformed (basely stupid) that he doesn't even know that Judge Vinson put a stay on his own decision. Seriously, if you're going to make some claim and insult, you better have your facts straight. If not, you're going to look like an idiot, which is not such a change of pace for Doug.

Regardless, the way the appeals process works, Judge Vinson's ruling is not the final step in the process of review. Eventually it may end up at the Supreme Court, where they may uphold the lower court's ruling. I hope they do, but regardless - Doug has absolutely no idea how this works.

You say that my view on this issue is not even a conservative view of law. I never said it was. My view on this issue is the founders view of law. The GOP is just as guilty as the Democrats of acting unconstitutionally in many ways. I do not follow conservatism based on what conservatives say. I am a conservative because I usually agree with that platform, but my beliefs are not based solely on that platform. My beliefs are based on my own principles, which are largely influenced by the U.S. Constitution, and other writings by the Founding Fathers.

And so we are bound by the opinion of a bunch of slave owning white guys forever and ever, amen!

As in all things, Doug likes to pick and choose. There were many disagreements during the drafting of the Constitution. Doug would have us believe there was only a singular underlying theme that all the founders agreed upon, that everyone else does not understand, but he and his "Constitutional scholar (lol)" friend Loki understands.

In Doug's world, the Constitution is the exact same thing as the Bible. It's a sacred document, where his interpretation is the correct one, and everyone else is "ignorant". Both are infaliable and unchanging, rooted in a singluar moral purpose that trancends time and space.

According to your comment, there is a minuscule segment of the population that agrees with me. Well, it was a minuscule segment of the population that believed independence was the way to go over two hundred years ago. The American Revolution was fought by only 4% of the population. Two-thirds of the Continental Congress were either Tories, or Moderates, who preferred to extend an olive branch (and they did in 1775) to the British in the hopes of appeasing them and reaching an agreement diplomatically (which would have been a dead-end street in that situation) than to move in a direction of independence. In fact, Independence was a topic avoided until the fires of "common sense" was whipped up by Thomas Paine's publication of the same name.

I suppose sometimes the fringe might be right, and everyone else wrong. It can happen.. but the issue is judicial review, and it has been the law of the land for over 200 years, and if it was a flawed concept, something would have done about it by now.. right?

It's an interesting concept though.. a mental exercise in what might have happened had the American Revolution not happened. Canada didn't have one. Australia didn't either, and the Australians are considering dumping their PM and going the Republic route - which obviously the English would have no influence over.

Would America be fundamentally different had it gone the same route? Hard to say, but maybe the Revolutionary War didn't have to happen and the outcome would have been the same. We'll never know, of course, but we did end up with a very good system of government in any case.

Anyway.. back to Doug;

Back to the topic, in short, I understand why and how judicial review exists in the United States, and it was simply a usurpation of power by the courts. They gave the authority to themselves through John Marshall's opinion in 1803. The power was not granted by the States as is the proper process, and the idea of judicial review goes completely against the principles of a limited government as prescribed by the U.S. Constitution.

The power was granted by the States when they joined the union and ratified the Constitution. They thus became bound by it. The concept of judicial review is completely in accordance with the system of checks and balances. I can't even think of a individual state that does not have the exact same system.

Doug - if the states did not grant this power to the federal government, why do they have the exact same process in each of their states? The state you live in, California, uses the exact same method of judicial review that is used at the federal level.

The legal system in the United States is out of control, and it is up to the States and Congress to grab hold of the reins and get the courts under control. Eliminating the power of judicial review is an important part of that endeavor. And just because it has operated that way for a couple hundred years, it does not make it right, or Constitutional.

If wishes were ponies... No, I'm sorry.. you crazy lunatics are not going to change the fundamentals of our system of government, no matter how many tea baggers are elected to Congress. That's just not going to change.

The Eleventh Amendment was before Judicial Review became "official" with John Marshall's Marbury v. Madison opinion. I used it as an example to show how the courts, in Chisholm v. Georgia (1793), had overstepped their bounds, and to reign them in, the Congress proposed, and the States ratified, the Eleventh Amendment. The amendment was specifically written to reduce the powers of the courts, eliminating their authority over cases where citizens of another state, or a foreign government, sue a State. As per that amendment, the federal courts cannot hear such a case. Such a case, then, must remain at the State level.

So now you understand the limited scope of the 11th amendment, and you STILL don't get that it has nothing to do with judicial review? You STILL don't understand that if the "founders" thought the courts were over-stepping their authority, they could have written the 11th to more broadly strip that authority from the courts, but they did not!

Why is it so hard for you to understand that the founders that you so revered did absolutely nothing to change the process of judicial review post Marbury? I realize you're pretty dim, but you can't be that dumb.

Unfortunately, Congress since then has not been doing its job, and has allowed the courts to become the monstrosity they have become. Rather than the weakest branch, as originally intended, the courts have taken upon themselves legislative and executive powers. It is time the Congress proposes an amendment, or the states propose an amendment through an Article V. Convention, to put the courts "in their place." By the way, just as an added bonus, when you read Madison's notes, you will note that one of the key debates was about not allowing the federal government to strike down State laws, be it judicially, or legislatively.

That "monstrosity" has done more for civil rights than any legislature or Congress has done in it's entire existence. I understand that you think that's a terrible thing, because you're an immoral individual, but I'm not sure if I can figure out why you Loons are so twisted over judicial review. There has to be more to it than just "because the founders wanted it so". There has to be some religious connection in there some place, or some disenfranchisment of some class of citizens that you desire, which you think is threatened by a court with authority. What's the real agenda?

Something along the lines of Congress legislating Jesus back into public schools, and without judicial review, no court could block it. I'm guessing that's a part of the agenda.

Loving vs. Virginia is one of your favorites. I know. And I agree it did a good thing, but it did it using the process in a wrong manner. In that issue, it was the State's responsibility to change the law, or suffer people voting with their feet and leaving the State. The federal government did not have the authority in that case to strike down State law. If it was such an important issue for the federal government to get involved in, then a new amendment should have been proposed and if the states were willing to ratify it, then the federal government could have that authority. However, by acting without the authority, the federal government literally seized that power, which is a sign that our government is acting tyrannical.

The problem was that Mr. and Ms. Loving were in jail for getting married in Virginia, and thus they could not "vote with their feet".. unless the ballot box was in their cell.

I know I seem continually amazed that Doug seems dumber and dumber at each turn, but it really is the case that the more he types, the dumber are his arguments.

Doug thinks that to prohibit states from passing laws that prevented individuals of a different race from marrying would require a Constitutional amendment. Instead, the Supreme Court used one already on the books.. it's called the 14th amendment's "equal protection" clause. The whole intent of equal protection is to ensure that all citizens are treated equally under the law. How is it possible a human being could be so stupid that they think that a new amendment is needed specifically to adress that very specific issue? Does he have any idea how many amendments would need to be on the books if "equal protection" is not applicable to individual circumstances?

In addition - at the time of the court's decision in Loving, more than 70% of the American public were opposed to interracial marriage. If it had been put to a vote, it would have gone down to defeat in spectacular fashion... even as Doug admits ending miscongeniation laws was a "good thing". Sometimes equal rights is not popular, and we're very lucky we have a judicial system that can be ahead of public opinion on a matter as important as civil rights.

After all, we don't live in a pure democracy.. do we? That's the whole point of judicial review!

And Doug is in an inter-racial marriage! Just amazing he doesn't get that.

One more thing. To answer your question about deleting your comments. It has nothing to do with anything other than that I just don't have the time to write out long answers like this to respond to your idiocy. You are more of an irritant than anything. But don't worry, on occasion when I have time, I will entertain your silly comments, and lay on you the truth. That is why you read my blog, you know. Because deep down you hunger for the truth.

Because he doesn't have time to argue the point, he simply deletes off the comments. After all, he doesn't want to leave a dissenting opinion laying around for anyone to see that he hasn't had a chance to lie through his teeth about. Better to just delete everything. That's our Douggie.

I read your blog, Doug, as I've told you many times, because of posts like this. Because I can take what you've written and point out how insane the religious conservative nutjobs are. You are the perfect foil for doing that, because you make it just so darn easy.

It's also a good laugh. You do know that when you write something like "That is why you read my blog, you know. Because deep down you hunger for the truth", I'm actually laughing at you.

Doug Gibbs and the "truth" are not on a first name basis. That should be pretty evident.

/update

Doug left a comment at his blog on the topic of the 14th amendment;

Regarding invalidating anti-miscongeniation laws, what I said is if the federal government wishes to invalidate them, it takes a constitutional amendment. The states have the authority themselves. Equal protection clause specifically applied to the emancipated slaves. The 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. I will read your post and comment here on it, when I get the chance.

Of course the states have the authority to structure the marriage laws as they set fit, so long as they do not violate the federal Constitution, as well as their own state Constitution. The point was that a state law may not violate the federal Constitution. That was what the laws prohibiting inter-racial marriage did. They violated the United States Constitution, and as the states are bound by the Constitution by joining the union, they are subject to the federal judiciary.

Loving vs. Virginia is just an example of that process in action. There have been many other cases of the US Supreme Court forcing states to comply with the US Constitution. Even within the states, that is not a controversial process. In fact, I've never heard of a state refusing to comply with a federal court ruling post the Civil War era. It may have happened, but I'm not familiar with such a case.

Again - Doug insists that the 14th applies only to "freed slaves". Nowhere in the text of the 14th does it stipulate that it only applies to the slaves. It didn't just slip their minds when they drafted it. It was intended to apply to all Americans.

I cannot imagine that anyone else but Doug and Loki thinks the 14th is not applicable to all Americans. When I use words like "fringe" and "crazy". That's what I'm talking about.

But to give credit where it's due, Doug approved the comment I left there linking back to this post so others can read and decide which argument makes more sense.