By request, I have decided to wrestle with one of the oldest disputes in America... Judicial Review.
While framing the Constitution, the founding fathers had to consider much. They specifically "Separated the powers" of the United States Government to prevent over reaching. If one branch of the government were to do something evil, another branch could swoop in and stop it. This system of "Checks and Balances" was set up to prevent corruption as well as prevent an oligarchy.
The founding fathers were fearful that once again, the government would become the tyranny they fought so hard to free themselves from. A difficult process of passing bills, laws, and enforcement of them was set into place to disable the government from ruling the people.
Judicial Review (Case Law, Judicial Activism) began in Feb. of 1803 with the land mark case of Marbury vs madison. I highly recommend that you read the case in full.
There were 2 competing ideas in the case:
1. How do you expect the Judicial Branch (the courts) the interpret law if nobody will do what they decide?
2. How can the Judicial Branch (the courts) make law? That was not a constitutional power granted.
The result of Marbury Vs. Madision was a decision in favor of the courts. The decision granted the Judicial Power the ability to create law. But not just any law... They gained the power to rule over the states through the power of the federal government.
For example: let's pretend that the State of Wisconsin made it illegal to poop on the side walk. The Supreme Court, without the consent of any other branch, would have the power to declare the pooping on the side walk is "Free Speech" or protected under "The Right To Bear Arms" or any other clause of the constitution and thus making that law unconstitutional. The law in Wisconsin, and any other state, would have to change their laws to comply with the Supreme Court Ruling.
Of course, none like our silly example have been passed.
What this law of Judicial Review essentially does is makes it so that the Supreme Court can make law for any state and the federal government, change the law, and demand the Executive Branch enforce it. Rather than the system of check and balances, our good friends the Legislative Branch get cut out and ignored.
How is this wrong (besides being down right unconstitutional)? Let's take the most popular court case in America... Roe V. Wade.
Many think this law "made it so that women can have the choice of abortion". Although this is slightly true, the dark underbelly is the fact that it deprives state the right to make it's own law.
Before Roe V. Wade, if Minnesota wanted to outlaw abortions, and Wisconsin wanted to make them legal, they could! States Rights win! All of the pro-choice people could move to Wisconsin or try to change Minnesota law. All the pro-life people could move to Minnesota or change Wisconsin law. The right of the people win! They actually have a choice in the matter! However... here comes our Supreme Court... The Supreme Court ruled that Minnesota, Wisconsin, or any other state in the union don't deserve a choice. In fact, neither do any of the people in those states. By the power of the Supreme Court, Abortions no longer a choice that states or people can vote on, but a Federal issue that a few Lawyers in Washington decide for you.
What would you do without these people? Think for yourself? Let your state make its own rational choice? SCARY!
However, it wasn't just one of the writers of "The 57th Signature" that think that Judicial Review is unconstitutional... Let me show you what other people have been saying...
"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
"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch." —Thomas Jefferson to Abigail Adams, 1804. ME 11:51
"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." —Thomas Jefferson to Edward Livingston, 1825. ME 16:114
This plaque says it all... Clearly the judge who posted this thinks that it is the judges job to declare what the law is... If that is the case, why even have a Congress or States for that matter? Clearly they know more than you.
The Judicial Activism portion refers to Judges who use this law to impose their own agendas without regard to the Constitution. Many people think that decisions like Roe V. Wade are NOT mentioned in the constitution, and should be dealt with by The States and the People in them.
Do you think it is right that judges can usurp the power of the other branches of government to make decisions?
To this writer, the answer is a strong "No!"
Pooping on the sidewalk = free speech!
ReplyDelete(That's an instant classic.)
The Row v. Wade case is an interesting example, because it not only shows the overreaching of the liberal left, but also the capacity to overreach on the right. People on the right get all worked up about abortions bans, and I do think abortion is one of the most racist and vile practices allowed to take place; but to approach it from the federal level is not what a Republic is supposed to do. Every issue that is legislated on a federal level makes my opinion less important in determining my own life. I wouldn't want a federal ban, because I don't want a federal police power telling me how to live. It is the same way with gay marriage. People who want the federal government to define marriage as between a man and a woman don't understand that they are muffling out their own ability to govern themselves. They delute the influence of their own voice. The more local the government, the more sway we all have in choosing how we want to live. That's what the constitution was designed to do.
The United "STATES" of America.
But, people would rather embrace their own crusades, not knowing the risks they impose on themselves when the pendulum swings to the other side of the political isle.