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Supreme Court Decisions the Constitution
- Thread starter NW
- Start date
AnotherPundit
New member
well, that's actually open to some debate right now .. the "strict constructionists" vs. the "living document" theory.
However:
The process of judicial review is nowhere mentioned in the constitution. The supreme court has the power to Interpret, but they do not amend. The text remains constant. Of course, if all of them agree to do something damn-fool silly like decide that "free speech" only applies when people are using podiums to give written speeches, or that asset forfeiture is ok because the Assets are what's being charged, not the People, then that becomes the manner in which the law is enforced. In other words, they can and do misinterpret, and such misinterpretations do (temporarily) have the force of law, albiet illegitimately. Future supreme court decisions can change that interpretation back to a more honest reading, if the case makes it to them.
That may not do you much good when the SWAT team kicks your door in at 3AM, but it's all we got.
However:
The process of judicial review is nowhere mentioned in the constitution. The supreme court has the power to Interpret, but they do not amend. The text remains constant. Of course, if all of them agree to do something damn-fool silly like decide that "free speech" only applies when people are using podiums to give written speeches, or that asset forfeiture is ok because the Assets are what's being charged, not the People, then that becomes the manner in which the law is enforced. In other words, they can and do misinterpret, and such misinterpretations do (temporarily) have the force of law, albiet illegitimately. Future supreme court decisions can change that interpretation back to a more honest reading, if the case makes it to them.
That may not do you much good when the SWAT team kicks your door in at 3AM, but it's all we got.
Oh Yeah. The Courts are so wise....
Scot v Sandford (1856) (Dred Scot is not a citizen)
Pressey v Ferguson (circa 1895-ish) "Separate but equal"
Brilliant...
>"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
--Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
>"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
--Thomas Jefferson to William Johnson, 1823. ME 15:451
http://etext.lib.virginia.edu/jefferson/quotations/jeff1030.htm
>"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; ****and the Judges in every State shall be bound thereby,*** any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." -- Article VI, Sect 2. of the U.S. Constitution
>"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in
which it was passed."
-- Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
>"I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless."
--Thomas Jefferson to W. Nicholas, 1803.
>"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson
>"When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it."
- State vs. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. St. 459
>"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."
--John Marshall: Opinion as Chief Justice in Marbury vs. Madison, 1802
>"[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
--Alexander Hamiltion
>"If the policy of the government upon vital questions affecting the whole people is to be fixed by decisions of the supreme Court, then the people will have ceased to be their own rulers."
-- Abraham Lincoln, First Inaugural Address, March 4, 1861
>"... the discretion of the judge is the first engine of tyranny."
-- Edward Gibbon, `The History of the Decline and Fall of the Roman Empire'
>"... the Constitution is what the judges say it is."
-- Charles Evans Hughes, Justice of the supreme Court (1907)
*Apparently, the current manner of interpreting the U.S. Constitution*
Scot v Sandford (1856) (Dred Scot is not a citizen)
Pressey v Ferguson (circa 1895-ish) "Separate but equal"
Brilliant...
>"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
--Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
>"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
--Thomas Jefferson to William Johnson, 1823. ME 15:451
http://etext.lib.virginia.edu/jefferson/quotations/jeff1030.htm
>"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; ****and the Judges in every State shall be bound thereby,*** any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." -- Article VI, Sect 2. of the U.S. Constitution
>"On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in
which it was passed."
-- Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.
>"I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless."
--Thomas Jefferson to W. Nicholas, 1803.
>"Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction." --Thomas Jefferson
>"When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it."
- State vs. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. St. 459
>"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."
--John Marshall: Opinion as Chief Justice in Marbury vs. Madison, 1802
>"[E]very act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that
the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid."
--Alexander Hamiltion
>"If the policy of the government upon vital questions affecting the whole people is to be fixed by decisions of the supreme Court, then the people will have ceased to be their own rulers."
-- Abraham Lincoln, First Inaugural Address, March 4, 1861
>"... the discretion of the judge is the first engine of tyranny."
-- Edward Gibbon, `The History of the Decline and Fall of the Roman Empire'
>"... the Constitution is what the judges say it is."
-- Charles Evans Hughes, Justice of the supreme Court (1907)
*Apparently, the current manner of interpreting the U.S. Constitution*
Essentially the answer to your question is that by all practical standards, the Supreme Court does "amend" the Constitution because, for better or for worse, they have the sole power to "interpret" the Constitution. That's how they can say that the word "people" in the 2nd actually means "state governments"--it's their interpretation.
Legally, they're supposed to take only what's there. However, any pretense of that concept has been going by the wayside for a long time now.
Bush claims he will appoint "strict constructionists" to the SC. I'll believe it when I see it, but it would certainly be a great thing.
Legally, they're supposed to take only what's there. However, any pretense of that concept has been going by the wayside for a long time now.
Bush claims he will appoint "strict constructionists" to the SC. I'll believe it when I see it, but it would certainly be a great thing.
AnotherPundit
New member
actually, in all honesty, the supreme court has never said that the 2nd amendment referred to the states. That's a common (and deliberately-fostered) misperception of the 1939 miller decision, and several lower federal courts have to an extent echoed it, but the Supreme Court has not affirmed that interpretation by any means. I have great hopes for the Emerson case.