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CBWx2

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« #45 : June 27, 2013, 10:24:02 PM »

That's an interesting take.  A few comments:

"Judicial review does not grant the Constitution supremacy, it grants the Supreme Court supremacy over the Constitution. It was never the intent of the founders that the Supreme Court would be able to unilaterally strike down legislation at it's own behest."

1. The Judicial Act actually violated the Constitution so we know that neither Congress nor The President were going to uphold the Constitution as the supreme law of the land.  As I recall, the Act called for the SC to issue a writ over something which it had no original jurisdiction, per the Constitution.

Vince, the only reason that the Judicial Act "violated the Constitution" is because John Marshall said that it did. If you actually read Article 3 Section 2, which is what Marshall based the decision on, it actually doesn't say what Marshall says it does, or rather, Marshall's decision appears to have been made with an incomplete picture of what the Article actually says. Marshall says that the Constitution limits the jurisdiction of the Supreme Court, which it does, but it also clearly gives congress the authority to make exceptions to that rule, which they exercised in the passage of the Judicial Act. Marshall simply ignored this part of the Article. There's that nasty "judicial review giving the Supreme Court supremacy over the Constitution" thing I was talking about. You have to keep in mind here, this was 1803. The defendant in this case was the guy who actually wrote the freaking Constitution, and many of the people who passed the Judicial Act of 1789 contributed to crafting the very wording that Marshall was interpreting.

Interestingly enough, this was Marbury's argument in the case. He suggested that the expressed jurisdiction of the Supreme Court as written in the Constitution was meant to be the floor, not the ceiling of it's jurisdiction. Marbury was correct, but Marshall and the other justices had their reasons for deciding the case the way that they did. More on that later.

2. Judicial review does not grant the Supreme Court supremacy over anything. The case that is the subject of this thread actually illustrates that point perfectly, but in simple terms judicial review just means that the SCt acts as the final appellate review for questions of Constituionality.  Btw, as to what the founders wanted, I think if you research you might find that Marbury was more controversial for the lecture of Jefferson than judicial review.

Judicial review grants the Supreme Court with supremacy over everything. Granting the court, an unelected body of individuals with lifetime appointments, the authority to void acts of congress makes them superior to congress. The Constitution is meant to serve as a system of checks and balances. There is no check, no balance to a Supreme Court ruling. The only body of government capable of checking the Supreme Court is the Supreme Court itself. What is the difference between this concept, and that of an oligarchy?

3. In any event, the Constitution is a meaningless document if someone is not charged with making sure the laws of the nation conform. But that doesnt make the SCt supreme that makes the Constituion Supreme. In fact, if Congress doesnt like the ruling it can pass a new law or even amend the Constitution

They can't simply make a new law Vince. Once the law is deemed unconstitutional, it is a fruitless endeavor to pass a new one that attempts to accomplish the same goal. As to amending the Constitution, that's a mighty hefty feat for a body of government to do simply to overturn a Supreme Court decision. Can you think of any other situation where such an extreme measure is necessary to overturn one body of government's decision on a law?

Its a bit odd that you of all people look down on Marbury when what the court did, essentially, was make sure a President couldnt wield his power against a private citizen.

How do you figure that the Marbury decision made sure that the President couldn't wield his power against a private citizen when Marbury essentially lost the case? The Marshall court didn't do Marbury any favors. They essentially split the baby on the decision. It stated that Marbury was entitled to the commission, but because the Judiciary act that granted the Supreme Court the authority to force Madison to honor his claim was unconstitutional, there was nothing they could do about it.

In truth, not only was the Judiciary Act of 1789 not unconstitutional, but the act wasn't what would have needed to be referenced in order for the court to issue a writ of mandamus against James Madison anyway. The Constitution itself grants the court the ability to issue the writ, because Madison, as the acting Secretary of State, would have fell within the classification of "public Minister and Consul", thus, would have been subject to the Court's specified original jurisdiction.

Marshall's underlying goal was not to grant Marbury the commission. It was to sweep aside the "midnight judge" controversy that the Adams administration had created by appointing 58 judges to newly created offices in a lame-duck session as a means of marginalizing the incoming Jefferson administration, an issue that Marshall himself was complicit in and that Jefferson had brought into light by his denying of the commissions to the Adams appointees. By ruling the way that he did, Marshall was essentially able to render the "midnight judge" controversy irrelevant, because the decision would allow the Jefferson administration to deny the commissions, thus making them a non-issue, while simultaneously casting Jefferson in a bad light. It was also a convenient way of grabbing onto this previously unrecognized authority, which he desperately desired for the court long before the opportunity to cease it was presented to him.

Also, how is juducial review bad when it strikes a portion of the Voting Act but good when it rules in Brown v. The Board etc.?

It isn't good in either case. Obviously, if the court is to have this power, I'm happy when it uses it to cast down a progressive ruling, but that does not mean that I approve of it having this power. One could argue that if it didn't have the power to render separate but equal the law of the land in the first place, then the Brown V Board case might never have been necessary.
« : June 27, 2013, 10:47:31 PM CBWx2 »


CBWx2

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« #46 : June 27, 2013, 11:14:32 PM »

CBW, Jefferson was pissed at gettign  a lecture and Jefferson was in the wrong in the midst of a political power grab BUT MORE IMPORTANTLY he was just wroing in what he said.  Thisis is not true:

"You seem to consider the judges as the ultimate arbiters of all constitutional questions"

The people -- who can amend the Constitution  ---are the ulimate aribters

How does the power to amend the Constitution make the people the ultimate arbiters of all constitutional questions, Vince? All you need to is look at the example I provided earlier. The people did amend the Constitution, by passage of the 14th amendment, yet it's interpretation in Plessy V Ferguson rendered the amendment irrelevant for nearly 60 years. The power doesn't lie in simply amending the Constitution, it lies in interpreting it, and enforcing it. In that charge, no one wields more power than the Supreme Court. Their whims can render a completely different interpretation of law than the wording of an amendment states, and no one can challenge it, with the exception of a later embodiment of the same ruling body.

"The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." -Thomas Jefferson to Spencer Roane, 1819

 Jefferson was not wrong. Truer words than this have never been spoken.

If not for the SCt, who would ultimately decide whether a law is Constituional?

No one is challenging the Supreme Court's role in deciding whether a law is constitutional or not. What is being challenged is them being the sole arbiters of such power, despite the fact that the Constitution doesn't give them this power. Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.
« : June 27, 2013, 11:24:28 PM CBWx2 »


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« #47 : June 27, 2013, 11:47:07 PM »

Judicial review grants the Supreme Court with supremacy over everything. .... There is no check, no balance to a Supreme Court ruling. The only body of government capable of checking the Supreme Court is the Supreme Court itself.

Can Congress amend the Constitution?
What forces Congress to follow the rulings of the Supreme Court?
How do the Justices get to the bench?

So Congress should be allowed to pass unconstitutional laws?
If there was no judicial review, what would prevent Congress from doing so?
« : June 27, 2013, 11:52:49 PM VinBucFan »

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« #48 : June 28, 2013, 12:36:50 AM »

That's an interesting take.  A few comments:

"Judicial review does not grant the Constitution supremacy, it grants the Supreme Court supremacy over the Constitution. It was never the intent of the founders that the Supreme Court would be able to unilaterally strike down legislation at it's own behest."

1. The Judicial Act actually violated the Constitution so we know that neither Congress nor The President were going to uphold the Constitution as the supreme law of the land.  As I recall, the Act called for the SC to issue a writ over something which it had no original jurisdiction, per the Constitution.

Vince, the only reason that the Judicial Act "violated the Constitution" is because John Marshall said that it did. If you actually read Article 3 Section 2, which is what Marshall based the decision on, it actually doesn't say what Marshall says it does, or rather, Marshall's decision appears to have been made with an incomplete picture of what the Article actually says. Marshall says that the Constitution limits the jurisdiction of the Supreme Court, which it does, but it also clearly gives congress the authority to make exceptions to that rule, which they exercised in the passage of the Judicial Act.

I confess its been a long time, but we must be speaking of different things or, possibly, you just misunderstand what was happening in Marbury becuase the exception is to appellate jurisdiction not original jurisdiction, right? This is Article III:

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.

Congress has the ability to make exceptions and regulations as to the Supreme Court's appellate jurisdiction. Marbury was a case of original jurisdiction, I think. The Act authorized the SCt to issue mandamus in cases of original jurisdiction, but that is a power that Congress does not have under Article III.  The operative section of Art III is TWO sentences, the second sentence, which discusses appellate jurisdiction is the one the references the exceptions and regulations.  This is why the Marbury decision says, essentially "for us to do what is requested this must be an exercise of appellate jurisdiction.
« : June 28, 2013, 01:00:56 AM VinBucFan »

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CBWx2

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« #49 : June 28, 2013, 06:14:59 AM »

Judicial review grants the Supreme Court with supremacy over everything. .... There is no check, no balance to a Supreme Court ruling. The only body of government capable of checking the Supreme Court is the Supreme Court itself.

Can Congress amend the Constitution?

Amending the Constitution means nothing when they don't have the power to interpret it's meaning. All congress can do is write and pass the amendment. The Supreme Court is ultimately the body that determines the meaning and effectiveness of the amendment. They can render it effectual or ineffectual at their own behest. Again, the court has power over the constitution, not vice versa.

What forces Congress to follow the rulings of the Supreme Court?

Nothing, certainly not the Constitution, which is why I haven't the slightest clue as to why we allow this system to continue. I suppose because it's been this way for so long is the only real answer, but that's not good enough, IMO.

How do the Justices get to the bench?

They are elected by the executive branch and confirmed by the legislative branch. But again, irrelevant, because once they get on the bench, their power is checked by neither. The legislative branch has the power to overturn legislative decisions made by the executive branch, and the executive branch has the power to overturn legislative decisions made by the legislative branch. The judicial branch, however, stands alone as the only body capable of overturning legislative decisions made by each of the other two branches, and stands alone as the only body of government in which neither of the other two bodies can overturn. This doesn't seem to be contradictory to the spirit of a system of checks and balances to you?

So Congress should be allowed to pass unconstitutional laws?
If there was no judicial review, what would prevent Congress from doing so?

Congress is already allowed to pass unconstitutional laws. It happens all the time. Judicial review doesn't stop unconstitutional laws from being passed, it simply affords the Supreme Court the ability to strike down laws that it has a disagreement with, and to uphold laws that they don't, for whatever reasons that it decides. The Patriot Act, for example, has lots of constitutionally questionable parts to it, yet the court has upheld various parts of this legislation time and time again.

Citizens United V Federal Election Commission is yet another example, in which the Supreme Court has essentially decided that corporations are entitled to the same rights and privileges as people, and that political contributions constitute as speech. Nowhere in the annals of original intent would you find such a preposterous interpretation of the First Amendment by any of the founding fathers, yet the SCOTUS has taken it upon itself to suggest that this was the Amendment's intent.
« : June 28, 2013, 06:28:09 AM CBWx2 »


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« #50 : June 28, 2013, 06:48:29 AM »

You just don't like some results. You get to be King for the day. What replaces the current system?
« : June 28, 2013, 06:58:26 AM VinBucFan »

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CBWx2

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« #51 : June 28, 2013, 06:56:48 AM »

That's an interesting take.  A few comments:

"Judicial review does not grant the Constitution supremacy, it grants the Supreme Court supremacy over the Constitution. It was never the intent of the founders that the Supreme Court would be able to unilaterally strike down legislation at it's own behest."

1. The Judicial Act actually violated the Constitution so we know that neither Congress nor The President were going to uphold the Constitution as the supreme law of the land.  As I recall, the Act called for the SC to issue a writ over something which it had no original jurisdiction, per the Constitution.

Vince, the only reason that the Judicial Act "violated the Constitution" is because John Marshall said that it did. If you actually read Article 3 Section 2, which is what Marshall based the decision on, it actually doesn't say what Marshall says it does, or rather, Marshall's decision appears to have been made with an incomplete picture of what the Article actually says. Marshall says that the Constitution limits the jurisdiction of the Supreme Court, which it does, but it also clearly gives congress the authority to make exceptions to that rule, which they exercised in the passage of the Judicial Act.

I confess its been a long time, but we must be speaking of different things or, possibly, you just misunderstand what was happening in Marbury becuase the exception is to appellate jurisdiction not original jurisdiction, right? This is Article III:

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.

Congress has the ability to make exceptions and regulations as to the Supreme Court's appellate jurisdiction. Marbury was a case of original jurisdiction, I think. The Act authorized the SCt to issue mandamus in cases of original jurisdiction, but that is a power that Congress does not have under Article III.  The operative section of Art III is TWO sentences, the second sentence, which discusses appellate jurisdiction is the one the references the exceptions and regulations.  This is why the Marbury decision says, essentially "for us to do what is requested this must be an exercise of appellate jurisdiction.

To address your first point, let's reexamine the wording:

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.

I've emboldened two sections that pertain to this case. The first one, which speaks to original jurisdiction, clearly gives the court the ability to issue a writ of mandamus to James Madison, because as acting SoS, Madison would have been considered an "ambassador, public minister and consul" which the section clearly grants the court jurisdiction over. So one must ask, why did Marshall refer to the "appellate" section of the Article when the "original jurisdiction" section of the article would have provided him with all the constitutional cover he needed to issue the writ?

The second part requires the entire first paragraph of the Article in order for it to make sense:

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.


Section 1 of the article outlines a laundry list of circumstances in which the Supreme Court is meant to act. Section 2, then lays out the framework in which it can act on these issues. It states that in all of the cases mentioned in the first paragraph, with the exception of ambassadors, other public ministers, and consuls (in which the court has original jurisdiction), the court is to have appellate jurisdiction. It then says "with such exceptions, and under such regulations as the congress shall make." This clearly gives congress the flexibility make expansions and exceptions to the courts reach by the passage of legislation. If this sentence is to have any meaning whatsoever, it's meaning can be construed in no other way than to justify that the Judicial Act of 1789 was indeed constitutional. As Marbury correctly argued, this sentence clearly illustrates that this section was meant to provide the court with a jurisdictional floor, not a ceiling. Marshall simply chose to interpret the article incorrectly in order to justify the solely political ruling that he wanted to make.
« : June 28, 2013, 07:31:11 AM CBWx2 »


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« #52 : June 28, 2013, 07:14:52 AM »

You just don't like some results. You get to be King for the day. What replaces the current system?

I like Jefferson's idea that I laid out earlier.


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« #53 : June 28, 2013, 09:44:44 AM »

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.

I've emboldened two sections that pertain to this case.

I think the fact that you have to leave a section without bold in between, gives the answer you're looking for.  Earlier, you said the Marshall court left out a section, but it is actually you leaving out a section, you are joinging the two sentences as if there is no period in between.  You are editing the two sentence to read as a single sentence, something like this:

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 and in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with all manner of cases subject to such exceptions, and under such regulations as the Congress shall make.[/b]

This is what the Constituion states at to the judicial system:

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."

How could the Judicial Power of the US be vested in one supreme Court if Congress could, as an example, strip it of jurisdiction in cases of orginal jurisdiction? I still dont understand what you think the system should be.

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« #54 : June 28, 2013, 10:03:20 AM »

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Let's use Plessy as an example, because your prior comments made it sound as if  you think the PEOPLE wanted one thing but the SCt messed it up in Plessy.  If you put the Jefferson system in place at the time of Plessy you think the PEOPLE give us, essentially, Brown versus the Board? C'mon? The Seperate Car Act was state law, that's what I think you are missing, in hindsight the SC got it wrong in Plessy, clearly, BUT it took legislatures, state legislatures putting those types of laws in place, as the so-called "will of the people" first. So the notion you would get a different result through direct deocracy is almost laughable, the Civl Rights Movement was fueled by Brown not by Congress. Brown is 1954, LBJ doesnt sign until '64?

The people are the ultimate arbiters because they can AMEND the Constitution.  The Constituition is tough to amend, but that is a good thing, not a bad thing. The SC doesnt always get things right, BUT that doesnt mean the system doesnt work. In fact, sometimes is takes judgment by people NOT beholding to elections (see Brown v. Board). Heck, Marbury v. Madision was a classic example, it was two political groups fighting against each other with Marbury stuck in the middle.  Both sides by their actions were not concerned with Marbury's rights they were concerned with political advantage.

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« #55 : June 28, 2013, 01:16:05 PM »

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.

I've emboldened two sections that pertain to this case.

I think the fact that you have to leave a section without bold in between, gives the answer you're looking for.  Earlier, you said the Marshall court left out a section, but it is actually you leaving out a section, you are joinging the two sentences as if there is no period in between.  You are editing the two sentence to read as a single sentence, something like this:

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 and in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with all manner of cases subject to such exceptions, and under such regulations as the Congress shall make.[/b]

Vince, I'm not leaving out anything, and the period being where it is actually helps my argument.

The first section of Article III lists the circumstances in which the court is to act. The second section explains the way in which it can act. The first sentence in section 2 clearly states what the court's original jurisdiction is, and provides no leeway in which it can be changed, at least in regards to what is specified. There is a reason for this.

The Constitutionally guaranteed portion of the courts original jurisdiction extends to elected officials and appointees. This was meant to act as a means of checks and balances, as it was the court's duty to act as a means of recourse in which states or individuals could settle disputes against public servants, or the federal government in general. If elected officials were given a means to change this, then it would remove that check on their power, therefor, they weren't.

The second sentence in section 2 then states that all of the other aforementioned circumstances in which the court is to act falls under it's appellate jurisdiction, with exceptions and under regulations that congress makes. This does not mean that the court only has appellate jurisdiction over these issues. It means that the court has at least appellate jurisdiction over these issues, unless congress affords it further jurisdiction. This is the part that Marbury correctly pointed out in his arguments, and that Marshall purposely ignored.

The section provides congress with absolutely no leeway in how the court can handle dealing with government officials, but does grant congress the flexibility in determining how it can handle all of the other circumstances mentioned in the first section. It's really as clear as day. I don't see how you can even argue that it says anything other than that.

This is what the Constituion states at to the judicial system:

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."

How could the Judicial Power of the US be vested in one supreme Court if Congress could, as an example, strip it of jurisdiction in cases of orginal jurisdiction?

Congress can't strip it of it's original jurisdiction. Where are you even getting that from?
« : June 28, 2013, 01:48:44 PM CBWx2 »


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« #56 : June 28, 2013, 01:38:26 PM »

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Not direct democracy, representative democracy, similar to how the president is elected, or how an amendment is ratified. The way the Supreme Court functions now is neither direct or representative democracy. It quite frankly isn't democracy at all.

Let's use Plessy as an example, because your prior comments made it sound as if  you think the PEOPLE wanted one thing but the SCt messed it up in Plessy.  If you put the Jefferson system in place at the time of Plessy you think the PEOPLE give us, essentially, Brown versus the Board? C'mon? The Seperate Car Act was state law, that's what I think you are missing, in hindsight the SC got it wrong in Plessy, clearly, BUT it took legislatures, state legislatures putting those types of laws in place, as the so-called "will of the people" first. So the notion you would get a different result through direct deocracy is almost laughable, the Civl Rights Movement was fueled by Brown not by Congress. Brown is 1954, LBJ doesnt sign until '64?

What's interesting about this statement is that there actually was legislation passed by congress that would have criminalized the passage of Jim Crow laws years prior to the Plessy V Ferguson decision. The Civil Right's Act of 1875 was passed by congress with the purpose of ending Jim Crow. It was struck down by the Supreme Court in 1883. Interestingly enough, the same justice who was the lone dissenting voice in the Plessy V Ferguson case was the same justice that cast the lone dissenting opinion in this case.


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« #57 : June 28, 2013, 01:52:06 PM »

This is what the Constituion states at to the judicial system:

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."

How could the Judicial Power of the US be vested in one supreme Court if Congress could, as an example, strip it of jurisdiction in cases of orginal jurisdiction?

Congress can't strip it of it's original jurisdiction. Where are you even getting that from?

^^^ Exactly, but it can strip the SC of its appellate jurisdiction (Ex Parte McCardle). Why the different treatment?  TWO SENTENCES . .  . WITH A PERIOD IN BETWEEN:

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.

In certain cases the SC has original jurisdiction. FULL STOP. In another set of cases, the SC has appellate jurisdiction subject to such exceptions and regulations as Congress shall make BECAUSE the inferior courts are left to Congress.

Sorry, but I am going to side with the numerous courts in this land that all read a "." as ending the thought and that read everything after the "," in the second sentence as a qualifier to that sentence.  By your way of reading, Congress can create exceptions and regulations to everything in the Constitution in front of that ","  :)  makes no sense, right?

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« #58 : June 28, 2013, 02:01:31 PM »

Thomas Jefferson believed that the court should play an active role in determining constitutionality, however, their power on such matters should only be used for the purposes of consult, not for the purposes of having the ability to supersede the elected bodies. Jefferson believed that if the congress passes a law that was deemed to be unconstitutional, the law should be put to vote in each state, with the majority of states ultimately deciding if the law was just. Such a system would truly make the people the ultimate arbiters.

So the solution is direct democracy rather than representative democracy?  I dont get that. 

Not direct democracy, representative democracy, similar to how the president is elected, or how an amendment is ratified. The way the Supreme Court functions now is neither direct or representative democracy. It quite frankly isn't democracy at all.

Because the SC doesnt represent anyone or anything beyond the Constitution. By definition, however, the people are superior because thyey can amend the Consitution. The SC is not the arbiter of right and wrong, but rather about what the Constitution says. Jefferson (who I think was awesome) was just pissed because of the politics (and the lecture)


Let's use Plessy as an example, because your prior comments made it sound as if  you think the PEOPLE wanted one thing but the SCt messed it up in Plessy.  If you put the Jefferson system in place at the time of Plessy you think the PEOPLE give us, essentially, Brown versus the Board? C'mon? The Seperate Car Act was state law, that's what I think you are missing, in hindsight the SC got it wrong in Plessy, clearly, BUT it took legislatures, state legislatures putting those types of laws in place, as the so-called "will of the people" first. So the notion you would get a different result through direct deocracy is almost laughable, the Civl Rights Movement was fueled by Brown not by Congress. Brown is 1954, LBJ doesnt sign until '64?

What's interesting about this statement is that there actually was legislation passed by congress that would have criminalized the passage of Jim Crow laws years prior to the Plessy V Ferguson decision. The Civil Right's Act of 1875 was passed by congress with the purpose of ending Jim Crow. It was struck down by the Supreme Court in 1883. Interestingly enough, the same justice who was the lone dissenting voice in the Plessy V Ferguson case was the same justice that cast the lone dissenting opinion in this case.

CBW, that's interesting, but my point was a simple one: Do you think that implementing the Jefferson plan at the time of Plessy would have resulted in the states turning America into the post-Brown version of America 60 years earlier than the SC actually did in Brown?

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« #59 : June 28, 2013, 02:17:28 PM »

This is what the Constituion states at to the judicial system:

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."

How could the Judicial Power of the US be vested in one supreme Court if Congress could, as an example, strip it of jurisdiction in cases of orginal jurisdiction?

Congress can't strip it of it's original jurisdiction. Where are you even getting that from?

^^^ Exactly, but it can strip the SC of its appellate jurisdiction (Ex Parte McCardle). Why the different treatment?  TWO SENTENCES . .  . WITH A PERIOD IN BETWEEN:

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.

In certain cases the SC has original jurisdiction. FULL STOP. In another set of cases, the SC has appellate jurisdiction subject to such exceptions and regulations as Congress shall make BECAUSE the inferior courts are left to Congress.

The end of the sentence states that the congress can make exceptions and regulations. What exactly is it that you are suggesting it is that the congress can make exceptions to, Vince? If what you and Marshall say is true, that congress cannot extend the court's jurisdiction beyond appellate status on the cases mentioned, then what does the word "exceptions" mean in your suggested context?

Sorry, but I am going to side with the numerous courts in this land that all read a "." as ending the thought and that read everything after the "," in the second sentence as a qualifier to that sentence.  By your way of reading, Congress can create exceptions and regulations to everything in the Constitution in front of that ","  :)  makes no sense, right?

What makes no sense is the way that you are interpreting the two sentences. I am not suggesting that the second sentence has anything to do with the first one. You're basically pulling that argument from your backside. I am suggesting the same thing that you are, that the exceptions and regulations have to do with the court's appellate jurisdiction. The difference being, you seem to think congress having the ability to create "exceptions and regulations" limits it from expanding the court's jurisdiction, when the very nature of the words suggest that they mean the complete opposite.

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