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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:22
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Marshall gives a pretty good original intent argument, though:
quote:
The judicial power of the United States is extended to all cases arising under the constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?
There are many other parts of the constitution which serve to illustrate this subject.
It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.
The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'
If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve?
'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'
Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent, that the framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!
The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.'
Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.
If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument. |
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MichaeltheGreat
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Apolyton Grand Executioner
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mooning the house that Ruth built.
Oct 1999
time: 21:22
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quote:
Originally posted by David Floyd
Well, Article III Section 2, which states:
"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."
Seems to imply that the Supreme Court has jurisdiction over cases arising under the Constitution. |
"Seems to imply" are such dangerous words for a Libertarian.  Your post "seems to imply" that a branch of the Federal government has the discretion to interpret what it's powers are under the Constitution. Shall we discuss the General Welfare Clause next? 
The fact that they (may) have jurisdiction to consider a case doesn't extend to having a remedy of voiding an act of another branch of government. It's also a bit of a stretch (without express authority) that a party could bring an action befor the judicial branch claiming that an action of the executive or legislative branch violated the Constitution. The President has defined veto power, the Congress power over appropriations and impeachment, but nothing grants the Judiciary any particular power with respect to the other branches of government.
Marshall was good in his arguments, after all, he's the leading architect of that judicial superlegislature out of thin air.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:22
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quote:
Johnson I think received his fair share of vilification, though perhaps not all for the right reasons. |
True - his War on Poverty was just as bad as his war on Vietnam.
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David Floyd
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The bottom of a large bottle of beer
Jan 1970
time: 05:22
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Well, the War on Poverty ended up creating a lot of problems, such as reliance on the government instead of reliance upon oneself, and in any case it was a waste of tax money on social programs, which to me is unacceptable.
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:22
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quote:
On a sidenote, I always like to gleefully point out that it could only be the British who would think it proper military tactics to march into battle using big, densely-packed block formations while wearing astoundingly-bright red uniforms with giant, pointy black hats on top... |
Boris, Boris, Boris... I can't believe you actually said this. The 'block' formation was actually a VERY efficient formation. It is refered to as the 'square' however. Where the front line (on their knees) fired, the line behind them got ready to fire, and the line in the back was loading their rifles. Once the first line fired, they ran to the back of the line and the lines switched. By using this formation they were able to fired 3 times as many shots in a certain period than any other army. By being in a square, they covered all sides. It was this way that they could defeat armies when they were vastly outnumbered (Plessy rings a bell here).
As for the bright red uniforms. Can you think about anything else that is bright red? That's right blood. When the soldiers were shot, the blood wouldn't be seen and thus wouldn't spook the rest of the troops as much. Very intelligent, I have to say.
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30-08-2002 08:17
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