Judicial Tyranny

Discussion in 'Ethics, Morality, & Justice' started by extrasense, Mar 13, 2005.

  1. extrasense Registered Senior Member

    Messages:
    551

    If it's really "judicial tyranny", what's to stop Congress from

    banning handguns?
    making Sunday the official holy day of the United States?
    invalidating marriages between differing races or ethnicities?
    coercing you into a false confession of criminal activity?​


    Here is the thing, which is missed with this sort of questions:

    If Legislative and Executive were so stupid to desire such measures, the protection that we have now, would be by no means better than we would have if "judicial review" were eliminated as I suggest.

    Because, tomorrow Legislative and Executive CAN suspend judicial review, and next day enact whatever they want. 2 days of protection.

    We depend on the "good" intentions of all three powers and their actors, and their reasonabe ability to understand what the "good" is.

    Farthermore, we believe that three heads better than one or two, henceforth three branches of government.


    es
     
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  3. Tiassa Let us not launch the boat ... Valued Senior Member

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    37,882
    Interesting. Seems a bit like sex without a condom. After all, there's no difference between 85%, 95%, 99%, and 0%, is there?

    Just to make sure I am reading you correctly ... by all means disagree if I'm taking you wrongly:

    If the L & E desired to usurp the constitution
    the protection we have now (e.g. today)
    would be no better than if judicial review were taken away.​

    A very interesting proposition, but it rings like an insupportable thesis. Nakedly apparent is the question of judicial vs. congressional "tyranny". You seem to prefer the latter. Today I have protection against religious intrusion. The ACLU has gone before the courts and argued successfully in opposition to laws both promoting and denigrating religious expression. Without the courts, what stops Congress from advancing one religion and suppressing another?

    That would be entertaining to witness.

    Contemporary political discourse is nowhere near sufficiently prepared to engage the issues surrounding the whole of judicial review. Suspending judicial review would require armed force.

    Last July, House Republicans attempted just that. The bill didn't pass, though, so nobody ever had a chance to sue it. But the proposition serves as an example: the only reason one wishes to suspend judicial review is in order to violate the Constitution.

    The Supreme Law of the Land means nothing without a means of enforcement.

    The courts need not assert their authority of judicial review: the issues come to them.

    After all, it's people and their lawyers who file lawsuits. All judicial review is, in the end, is a comparison of the hierarchy of laws. Party A sues Party B. Party B responds by pointing to Law C (city). Party A rebuts by pointing to a higher authority of Law D (state). Party B argues that Law E (federal) supersedes D. Party A points to the Supreme Law of the Land, the highest tier of law, to contradict E with Constitutional point F. Point F will win. Period.

    If General Jones orders Colonel Smith to conduct a war with careful regard for civilian life, and Smith passes that order on to Commander Jackson, and Commander Jackson orders a town to be razed, what of Private Williams? He balks at the order. Commander Jackson points to his orders. Williams points to the orders given Commander Jackson, and asserts there is a discord between the order at the top of the chain, and the order coming from Jackson.

    Abusers at Abu Ghraib and other U.S. military installations pointed to orders. Yet this is not a proper defense, since they have instructions that supersede direct orders should the circumstances arise. Williams, choosing to disobey Jackson's order, will be placed under arrest at the order of Lieutenant Brown, but will he be convicted for refusing to disobey a higher authority?

    Suspending judicial review? To revisit the sex metaphor, why not throw away the condoms and give yourself a few strategic razor cuts before plunging into wild sex with an AIDS patient?

    I disagree with the assertion that our protection against tyranny will not be diminished by the loss of judicial review. In fact, I find that assertion laughable.

    Yes, we do. Which is strange in a way, considering the amount of complaining Americans put out about their politicians. Politicians are dishonest--this is a standard presupposition of American political affairs. And yet we continue to endorse the dishonesty.

    Strange, that. But in the end, necessary. What you're proposing is to put constitutional compliance in the hands of a legislative body that is clearly recognized as sold.

    We elect certain judges. This is the business of the people. But there comes a point at which the people need to be guaranteed a certain consistency in matters of law and justice. Hence, appointed judges that serve for life. Their petitioners are lawyers, not lobbyists. Their decisions are made in consideration of the law, not re-election.

    You would, in fact, nullify our American Revolution. That, I admit, would be a sad day.

    So why lobotomize one of those heads? Among the diverse potential results, optimizing its contribution to the process is not one of those.
     
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  5. Muhlenberg Registered Senior Member

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    334
    Jefferson and his party simply eliminated nearly half fo the Federal courts and suspended the Supreme Court for two sessions (14 months).

    It will come to that again if the courts do not back off.

    Ruth Bader Ginsberg, as activist judge as one will find, said earlier this month SCOTUS "probably" should not have decided Roe v Wade when it did but let the political precess play out.
     
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  7. spidergoat pubic diorama Valued Senior Member

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    54,036
    Bush Inc., thinks they own the government, but there are three equal branches, get used to it.
     
  8. Arquibus Master of Useless Information Registered Senior Member

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    306
    I was just wondering... we do all know that Justice John Marshall gave the court the power of judicial review right? It wasn't written into the Constitution that the court could determine whether or not the laws made by the Congress and approved of by the president could simply be dismissed by the court on their whim of unconstitutionality regardless of the words in the Constitution or the will of the people. All it takes for the court to change a law or create a new one is for someone to challenge an existing law that is somehow related. While it is true that they cannot directly make their own laws, they can legalize things based on the case that in turn lead to at the very least the existence of a quasi-law that enforces their desires. While I would agree that the Supreme Court's purpose is to protect the Constitution, and possibly even that the justices are trying to do just that, the fact remains that they are too powerful. How long before they decide that the American people cannot uphold the Constitution and therefore they will be forced to take the matters of the governing of the nation into their own hands. They already have a life term, meant to keep politics out of their job, but this means we can't change them based on our desire after their term like a legislator or executive. The potential for a judicial dictatorship is there.

    This message is flavored with my own paranoia complex and if I sound like I am raving some mad conspiracy theory, I am sorry.
     
  9. extrasense Registered Senior Member

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    551
    We need a Constitutional Amendment, that will state that any proclamation by a judge or court on the matter of (un)constitutionality of a law is a treasonous act.

    es
     
  10. §outh§tar is feeling caustic Registered Senior Member

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    4,832
    I think Mr. extrasense is a Jeffersonian Republican. His mood is a bit soured after those pesky midnight appointments left John Marshall as Chief Justice.

    Sorry es, right now we have loose interpretationists running rampant throughout the land. I have a book lying around here somewhere: Death of Common Sense : How Law is Suffocating America, by Philip K Howard. The author provides some cogent examples as to why strict interpretation can actually backfire on a democracy. Amazon.com will allow you to read through the first few pages I think and that alone should suffice.

    You must realize too that until the Judiciary Act of 1789, the Supreme court was unheard of. Maybe you're saying the Constitution did not allow for such a step but Hamiltonians (Federalists) ruled the day and to be honest, your bone to pick is with the framers of the Constitution. It was members from the first Congress in any case which drafted your bill of rights, your declaration of independence, and your spited Judiciary Act.

    They set their precedent all the way back then but maybe the issue in particular you might want to raise is that of judicial review, set in the Marbury v. Madison case, the ruling of which appears to be probably unconstitutional. There, Marshall shrewdly asserted the power of judicial review over federal legislation. I say shrewdly because in fearing that a pro Marbury ruling would result in direct confrontation with President Jefferson, subsequently eroding the court's power in a dirty political tug-of-war.

    See here for a little extra: http://en.wikipedia.org/wiki/Marbury_v._Madison

    U.S. Const. art. III, § 2 did not allow the Supreme Court any jurisdiction over the Marbury v. Madison case but Marshall went ahead any way and made history. Of course, a brash man by the nickname of Ol' Hickory would brazenly challenge the Courts power without so much as a whimper in response.

    Hail King Andrew, the people's man and protector of democracy!
     
  11. extrasense Registered Senior Member

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    551
    OK, if mistake was made, or rather the scoundrels get power over people, should not we take it back?
    Why not the amendment I propose? It would do

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    es
     
  12. Baron Max Registered Senior Member

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    23,053
    And who would make that determination? Another panel of judges? Appointed by whom? And for how long?

    Ooooooh, and who would watch over THOSE judges? ...LOL!

    Baron Max
     
  13. Asguard Kiss my dark side Valued Senior Member

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    23,049
    and how long after you abolish judisal review would it take for a bill that overterned elections? 5 min or 5 years its still a scary thought that someone like bush with the strength of parliment behind him could vote himself a life term
     
  14. extrasense Registered Senior Member

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    551
    Can't you see, that what you are saying has no sense?
    It can be a simplest computer which would pick up on words of the decision, constitutional and constitutionality. Then any judge can do it - no appeals allowed.

    ES
     
  15. extrasense Registered Senior Member

    Messages:
    551

    So it is judicial review, that stops legislature from oveturning election?
    The execitive, normally, would not sign such a bill.

    It is judiciary, who is monkeying up with the elections, and the will of people in general. Legislative depends on the elections for its existance and legitimacy.

    If elections were nullified - it is a case for direct people action. We never can depend on the judiciary to fix it for us. And we do not need their permission for the revolution.

    ES
     
  16. talk2farley Registered Senior Member

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    Who says the power of judicial review is not in the Constitution? The judiciary is given emphatic authority to decide "cases" and "controversies." The latter, controversies, has been interpreted (as early as 1789) to mean Constitutional controversies (that is, incompatibilities between legislation and the Constitution), while the former, cases, has been interpreted to mean the more obvious role of decideing guilt and innocense (a process further defined in later sections).

    Ergo, the power of judicial review is implied, if not explicitely defined, by the Constitution (otherwise, what purpose could the "controversies" clause serve?). It is important to remember that the Constitution as legal document is very GENERALLY worded, by intention. It is supposed to evolve according to the changeing senseibilities and necesities of the times, while staying true to the language (aka, within reason). One could make the argument that none of its tenets and edicts is specific enough to be free from interpretation. This rings equally true for all three branches, not just the Judiciary, and all three have seen many changes in the manner their authority is executed over the years (the Executive, in particular, as Presidents today are a great deal more powerful than their 18th century counter-parts).

    As Chief Justice John Marshall explained in Marbury vs. Madison, the Supreme Courts responsibility to overturn unconstitutional legislation was a direct consequence of its oath to uphold the constitution. The oath could not possibly be fulfilled any other way, given the authority wielded by the court (simply decideing guilt or innocense in a given matter was insufficient to satisfy the demands of the oath, ala, how could the court be acting honestly if it were to convict someone of "thought crimes" under existing statute?). Just as the Legislative may only uphold its oath by passing constitutional legislation (and reversing the unconstitutional), given its authority. And the Executive may only uphold its oath by vetoing unconstitutional legislation, pardoning unconstitutionally convicted prisoners, etc.
     
  17. extrasense Registered Senior Member

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    551
    "Controvercies" means first of all "not cases", something that is not a particular case with sides, but a question of judicial/practical consequence that legislature did not clarify yet. Any other "interpretation" is a hoax.

    It is a dirty trick, since if SC does not have a right to do damn thing, then it does not have a responsibility to do it. All that SC is allowed and ought to do, is to produce a legislative initiative that is intended to correct the problem.

    "oath to uphold the constitution" assumes "in the limits of your rights".

    See, you are using a perverted way of "proving" your wrongful point, since now you admit that Judiciary dishonestly changed the rules, but we must honor this trick because others have had their rules changed too.

    You addmit the change!

    See, all branches have their roles in the upholding of Constitution, but judicial scoundrels want to supercede everybody and have tyrannical powers. And you like that, because you like tyranny as long as you like the tyrants.

    e

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  18. §outh§tar is feeling caustic Registered Senior Member

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    I don't think that your example is any different from a scenario where he would be backed by the supreme court too.

    Slippery slopes make me fall.
     
  19. Mystech Adult Supervision Required Registered Senior Member

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    Oookay, so you're not in favor of any oversight, Judicial or Executive, over the Legislative branch? I'm sure that's work out so very well. What, then, would keep legislators from passing any law which grossly contradicts some article or amendment to the constitution? What recourse would we have at that point?
     
  20. Mystech Adult Supervision Required Registered Senior Member

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    Okay this whole argument has to be pretty fucked up and out-there to begin with if I'm put in the position of agreeing entirely with points that Baron Max is putting foward.
     
  21. Mystech Adult Supervision Required Registered Senior Member

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    Um, actually computers suck pretty hard at heuristic logic problems, and so I doubt very much that even the smartest computer today would be much good in even the simplest case involving jay-walking or a disputed parking ticket. Good thing we've got judges for this kind of thing.
     
  22. Mystech Adult Supervision Required Registered Senior Member

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    Ahh so your proposed better alternative to the Supreme Court would be bloody armed revolt? Call me a pussy, but I think that thinks work out much better with a Supreme Court. I mean I dream of hunting politicians through the forest with Mrs. Kitty (my AK-47 - all serious sportsmen give their rifles a name. . . a girls name) slung over my shoulder, and nothing but my boy-scout training to help me track and kill him, but I usually wake up and realize that in the end social order is better than anarchy and chaos.
     
  23. Mystech Adult Supervision Required Registered Senior Member

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    According to whom?
     

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