Santorum
Newt
Mitt
Paul
[quote]pushharder wrote:
- BTW, I inadvertently left out this part of Article III Section 2 of the Constitution above and it is crucial to the argument of whether congressional power to limit jurisdiction exists.
I think the language of the text makes it very clear that Congress can indeed do so.
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, [u]with such Exceptions, and under such Regulations as the Congress shall make.[/u]
(emphasis mine)[/quote]
Yes, and I cannot site a reference, but the interpretation is the inverse of what you think.
The clause distinguishes original from appellate jurisdiction. The SC has appellate jurisdiction, but Congress may assign to it original jurisdiction by exception and regulation.
I would try to find the discussion in the Federalist, but broadly, Jay, Hamilton and Madison agreed that Court review would serve as a brake on the tyranny of the majority, in contradistinction to Jefferson, later, who wanted no such restraint to the “popular will.”
[quote]pushharder wrote:
More on whether Congress can limit the court’s jurisdiction:
“Former Supreme Court Justice Owen Roberts once proposed an ‘amendment of the Constitution to remove Congress’ exceptions power’.”
Our present Chief Justice John Roberts himself has defended the Congress’ power to limit federal court jurisdiction. He claims it would take a constitutional amendment to abridge Congress’ right to do so.
In fact, Congress has recently limited the court’s jurisdiction in two cases:
Protection of Lawful Commerce in Arms Act (gives immunity to gun manufacturers in certain cases)
REAL ID Act of 2005 (Congress mandated the construction of a border fence in southern California with “expeditious construction” and that “no court … shall have jurisdiction to hear any cause or claim” to stop it. A federal court has already upheld the law)
http://www.newt.org/sites/newt.org/files/Courts.pdf
http://www.freerepublic.com/focus/f-news/2042168/posts
http://www.eagleforum.org/column/2006/jan06/06-01-25.html[/quote]
Good reads there.
Gingrich’s draft mostly deals with the question of judicial activism rather than judicial review.
(His comments on Cooper v Aaron are noted…)
But the end papers are interesting. This, from Hamilton:
â??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."
(Federalist 78)
Madison’s thoughts are not so clear on the issue.
Well, I guess that’s what makes for horse races.
Edit: I would suggest, respectfully, that the freerepublic website presents a biased case; important, arguable, but biased and not authoritative. Like the Supreme Court.
[quote]pushharder wrote:
[quote]DrSkeptix wrote:
Edit: I would suggest, respectfully, that the freerepublic website presents a biased case; important, arguable, but biased…[/quote]
You mean like the Warren court?[/quote]
Lessons in how to achieve noble ends by dubious means?
You have given me more to read and think about.
I am not advocating judicial activism. But here is why you–yes, you–should absolutely demand that no law restrict itself from the appellate process. It has to do with real freedom under the law; we need every tool to block the intrusions of law. A hypothetical example:
Senator Tribulus sponsors and passes a law that there be no extramarital dancing in the US. So sure is he in its God-given rectitude, this law precludes judicial review at every level of the state and federal government.
One Pushharder is found doing the Lindy Hop with the wife of the Great Northern’s bartender. A hundred people testify against him. He is tried and convicted and fails on appeal, on fact.
He decides to challenge the law; it is an intrusion on privacy, it violates the 10th, 13th, 14th and 15th amendments, it…wait a minute…it does not allow judicial review to confirm that the law itself is in violation of the Constitution.
I want a government which does not work smoothly and efficiently, which does not pass laws except in extreme necessity, that does not violate the privacy and civil rights of minorities, even those minorities committed to doing the horizontal mambo in public. When the Executive and the Legislature are taken over by Some Great Notion, I want an independent judiciary to review the legality of law, and protect me from capricious acts and intrusions.
[quote]DrSkeptix wrote:
Senator Tribulus sponsors and passes a law that there be no extramarital dancing in the US…[/quote]
This won’t end well…
[quote]DrSkeptix wrote:
I want a government which does not work smoothly and efficiently, which does not pass laws except in extreme necessity, that does not violate the privacy and civil rights of minorities, even those minorities committed to doing the horizontal mambo in public. [/quote]
Wait…what?!
[quote]Sloth wrote:
[quote]DrSkeptix wrote:
I want a government which does not work smoothly and efficiently, which does not pass laws except in extreme necessity, that does not violate the privacy and civil rights of minorities, even those minorities committed to doing the horizontal mambo in public. [/quote]
Wait…what?![/quote]
I knew it…a closet dancer outed!!!
[quote]DrSkeptix wrote:
[quote]Sloth wrote:
[quote]DrSkeptix wrote:
I want a government which does not work smoothly and efficiently, which does not pass laws except in extreme necessity, that does not violate the privacy and civil rights of minorities, even those minorities committed to doing the horizontal mambo in public. [/quote]
Wait…what?![/quote]
I knew it…a closet dancer outed!!![/quote]
I can assure you that any public dancing I might ever do would be vertical and family friendly.
[quote]pushharder wrote:
Sloth, you’re a rabble rouser.[/quote]
Such as coincidence you’d find something so appropriate, and with my name even. Almost as if it was tailor made! Good find.
[quote]pushharder wrote:
[quote]DrSkeptix wrote:
[quote]pushharder wrote:
[quote]DrSkeptix wrote:
Edit: I would suggest, respectfully, that the freerepublic website presents a biased case; important, arguable, but biased…[/quote]
You mean like the Warren court?[/quote]
Lessons in how to achieve noble ends by dubious means?
You have given me more to read and think about.
I am not advocating judicial activism. But here is why you–yes, you–should absolutely demand that no law restrict itself from the appellate process. It has to do with real freedom under the law; we need every tool to block the intrusions of law. A hypothetical example:
Senator Tribulus sponsors and passes a law that there be no extramarital dancing in the US. So sure is he in its God-given rectitude, this law precludes judicial review at every level of the state and federal government.
One Pushharder is found doing the Lindy Hop with the wife of the Great Northern’s bartender. A hundred people testify against him. He is tried and convicted and fails on appeal, on fact.
He decides to challenge the law; it is an intrusion on privacy, it violates the 10th, 13th, 14th and 15th amendments, it…wait a minute…it does not allow judicial review to confirm that the law itself is in violation of the Constitution.
I want a government which does not work smoothly and efficiently, which does not pass laws except in extreme necessity, that does not violate the privacy and civil rights of minorities, even those minorities committed to doing the horizontal mambo in public. When the Executive and the Legislature are taken over by Some Great Notion, I want an independent judiciary to review the legality of law, and protect me from capricious acts and intrusions.[/quote]
Thing is, Senator Tirib couldn’t pass that law without majority votes in the House and Senate and a signature by the chief executive. The USSC (and its subsidiaries) are and have been “passing laws” with just five votes (in many cases).
I think the past ~70 years would tell us the potential danger you envisioned above is more likely to come from the USSC but your point is well taken.[/quote]
One last post before my tango partner takes me through some back saccadas…
In each of Schafly’s precedents of the Exemptions clause, the exemption to judicial review is for case appeal, and not to block judicial review of the law itself. In fact, she cites the fact that the border fence law passed Federal court review. Score a little one for me.
And now a practical example.
If a congressman, equally dedicated to his position as is Dr. Paul, had added a clause to Obamacare which would have blocked judicial review of the law itself…would that be acceptable? That law passed Congress somehow, and was signed by the President. If your contention is correct–that Congress can pass a law which precludes itself from Judicial review–then there would be no appeal pending in the SC, and by extension, no protection from the tyranny of the majority.
Some sources on the exemption clause of article three: