Supreme Court

[thomasjordan]

Ray:

The Constitution does not give the Supreme Court the authority to be the final arbiter on what is constitutional and what is not.  That is a power the Court abrogated to itself in Marbury v. Madison (1803).

Here are the reactions of Thomas Jefferson to that decision:

http://www.landmarkcases.org/marbury/jefferson.html

I much prefer a constructivist judge.  That makes the rule of law at least somewhat predictable.  With an interpretivist judge, the rule of law is what the judge believes it should be on any given day.  That makes the rule of law totally unpredicatable and capricious.

There may well be items in the Constitution that need to be updated to reflect modern society.  The Framers recognized that would happen from time to time, and defined exactly what that updating process was.  It was the Amendment process, which has been used 27 times in the last 200 years or so to modify the Constitution.  The Framers did not envision a Supreme Court that took it upon itself to amend the Constitution, whether based on a constructivist or intepretivist viewpoint.  They would be horrified by an interpretivist court that based decisions on penumbras (Roe v. Wade, 1973).

A second Constitutional Convention did convene in North America in February 1861.  The members of that convention had 80 years of experience to guide them in correcting some of the items they believed were wrong with the original document, which, for the most part, they adopted word for word.  These men were afraid of the power the Supreme Court has usurped, and explicitly limited its power.  More interesting, during the 4 years this version of the Constitution was operative, not a single person was ever appointed to the Supreme Court.  Congress remained the final arbiter, much as envisioned by Jefferson in the link above.

Rob

[maddog]

The Constitution does not give the Supreme Court the authority to be the final arbiter on what is constitutional and what is not.

Are you sure? Wouldn't Article III, Section 2 with "arising under this Constitution" being the key phrase be where it comes from? I've never thought about this question before. I probably should do more research on it.

http://www.law.cornell.edu/constitution/constitution.articleiii.html

I much prefer a constructivist judge.  That makes the rule of law at least somewhat predictable.  With an interpretivist judge, the rule of law is what the judge believes it should be on any given day.  That makes the rule of law totally unpredicatable and capricious.

I woundn't say 'on any given day' but rather as per the context of the case in front of the court. Neither way is really wrong but given what the case is about, one method may be more appropriate than the other.

There may well be items in the Constitution that need to be updated to reflect modern society.

Gotta love that amendment process. :)

(Roe v. Wade, 1973).

HOT POTATO! Not touching that one. :)

A second Constitutional Convention did convene in North America in February 1861.

I've never read the Confederate Constitution. Is it worth reading? What are the major differences between it and the US Constitution?

--Ray.

[thomasjordan]

Ray:

Follow the links in my previous post.  Along with the page about Jefferson I specifically referenced, there are pages that discuss the ramifications of Marbury.

Second, there are several websites (or at least used to be, I haven't been to any of them in years) that compare the US and CS constitutions.

A few key differences:

1.  The president was limited to one (1) six year term.  This was to prevent the president from spending his term(s) running for re-election.

2.  Spending bills had to originate with the executive.  Congress could not appropriate money the president did not request.

3.  The president had a line item veto, to strike specific items from a bill approved by Congress.

4.  The Supreme Court could not interpret the Constitution.

5.  States could NOT secede (I always get a chuckle out of that one).

These are the significant changes off the top of my head.  Most of the others were mainly word smithing, emphasizing the federal nature of the government, and that the real power was held by the various states.

One of the best political histories of the Confederacy I have read is William C. Davis, Look Away, A History of the Confederate States of America.  The first several chapters deal exclusively with the events that lead to the election of Lincoln, the state secession conventions, and the machinations in Montgomery in February 1861.  The whole book concentrates on politics and the homefront, with the war mostly mentioned in passing.

Oh, it is worth noting that when Switzerland adopted a Constitution in 1867, it used the CS, and not the US, as its basis.  I guess it liked those no pork provisions (items 2 and 3 above), as well as limiting the term of service of the executive.

[Gwizz]

3.  The president had a line item veto, to strike specific items from a bill approved by Congress.

What happened to the President's line item veto?  I thought we still had this in affect in the US.

If anyone has a 401K retirement account, here is what the Democrats are planning to do with it.

http://www.workforce.com/section/00/article/25/83/58.php

In a few cases it might be a plus.  ???

[thomasjordan]

Gwizz:

The US Constitution does not grant a line item veto.  During Clinton's term in office, Congress did authorize a line item veto, with an expiration date.  It expired, and was not renewed.  It probably wasn't Constitutional anyway.