wow

[winterbadger]

http://www.aclu.org/LesbianGayRights/LesbianGayRights.cfm?ID=16142&c=101

That's about as far as I can go in describing my astonishment. Some congressmen think they can pass a law making it unlawful for the Supreme Court of the United States to review a piece of federal legislation or state courts' action on it. I don't know whether to be angry at their arrogance and bigotry or pity them for their stupidity. The former, I think, because I have to assume they're not actually stupid and are offering the legislation for propaganda purposes because they think their constituents will be stupid enough not to know it's unconstitutional prima facie.

Wow.

Comments

[puabi.livejournal.com]

Some pseudolibertarian input - where does the Supreme Court get its authority anyway?

Why can't the state supreme court handle state courts' actions?

[winterbadger]

where does the Supreme Court get its authority anyway?

Erm. From Article III of the Constitution

Article. III.
Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2.

Clause 1: 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; (See Note 10)--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.

Clause 2: 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, with such Exceptions, and under such Regulations as the Congress shall make.

Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section. 3.

Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Why can't the state supreme court handle state courts' actions?

Um, they do. But there needs to be a national appellate court that can establish a single precedent and interpretation on a point of law, otherwise, in a nation where multistate commerce and personal life is a daily occurence, there would be total chaos.

[puabi.livejournal.com]

I should have been more specific. There is nothing in the Constitution about judicial review. Basically the Supreme Court interprets the constitution because it says it can. I forget what case established this -- Marbury v. Madison I think. John Marshall just took the unconstitutional initiative to interpret the Constitution. ha ha ha

[winterbadger]

Well, it's not exactly that clear cut. There certainly *are* grounds for judicial review in the Constitution. Marshall did not just take the initiative out of thin air. His decision (readable, among other places, at http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm) fairly cogently argues that the power of Congress is expressly limited by the Constitution, that the federal courts exist expressly to hear originally certain types of cases and to act as appellate courts in other cases, and that Congress cannot by its own action without amending the Constitution, chnge the apportionment of powers among the federal courts.

The role of the courts (of any courts), Marsshall observes, is in all cases to "expound and interpret" the law. He further observes that if a law contradict the provisions of the Consitution, it is incumbent on the courts to consider the Constituion as well as the law in deciding a case, and that when courts do so the Constituion must take precedence over the laws passed by the legislative branch *because* the Constitution derives from the will of the people and is more fundamental than the actions of the legislature. (He does not say, but implies, what I would state more fully: if Congress were intended to be allowed to override the Constitution by simple legislation, to what purpose does the Constitution lay out the procedues by which it can be amended?)

So if the courts exist to interpret the law, and the Constitution trumps common legislation, the courts must be intended to examine and interpret the Constitution in order to determine whether legislation passed by Congress and used as the basis for case at law is legally binding or not.

Congress is authorized by Clause 2 of Article III, Section 2, to set regulations and make exceptions for the Supreme Court's apellate power, but in doing so it cannot contravene the Constituion any more than it can in any other legislation. And the 14th Amendment guarantees equal protection to all citizens, which would surely be contravened by creating a class of persons who are not allowed to bring suit in federal court in circumstances in which other citizens are allowed to.

[selki.livejournal.com]

I've been reading Chernow's biography of Alexander Hamilton; judicial review was one of the topics of the Federalist papers. They also thought it was inherent in the Constitution, but went on at some length to explain separation/balance of powers.

[kathygnome.livejournal.com]

I'm cynical. I think that the current group, particularly the house, probably not only doesn't understand what the consitution says, but would march over to the archives and put it in a shredder if they did. Nevermind the people in the Cheney regime.

Over the last 20 years, particularly since the Reagan administration, the GOP has slowly morphed from a conservative party into a fascist party. There's a shocking number who simply do not believe that democrats and non-Christians have a right to representation in the political process. And they certainly reject the entire notion that the courts are able to review any laws because they believe quite firmly in the tyranny of the majority and that individual rights must be subverted to the majority's will.

[winterbadger]

And they certainly reject the entire notion that the courts are able to review any laws because they believe quite firmly in the tyranny of the majority and that individual rights must be subverted to the majority's will.

I would believe that, except that they seem to be quite happy with the courts when they rule in their favour. Just as one of their major planks is state's rights, except when states start having different ideas about marriage or guns than they do. Just as when they're for less government, except when they can actually decide what that government does, in which case they want more, not less. And they're all about being Judeo-Christian, until denominations of those religions start talking about ordaining and marrying gay people. Then there's something wrong.

I will agree that the Republican Party has changed, horrifyingly, over the past 40 years. Richard Nixon was rgarded as an abberation; now he would be normal. They've done their best to destroy the fabric of reasoned, meaningful political debate in this country, all in the interest of winning an election. I would like to think that my grandmother, a woman who spent many years workign hard for the Republican Party in New England, would be disgusted by them today and have one of her famously crushing remarks for any member of it she chanced to meet. (I think I know what she's say about GWB, given that she thought his father was a total idiot when he was an undergraduate in the university where her husband taught.)

[winterbadger]

I am even more distressed to hear that this passed the House today, at least as reported by NPR (that doesn't seem to be what I'm reading on the HoR website, but I'm not fully conversant with the language they use to describe action on legislation.)

In reading the transcript of the hearing on the bill (http://thomas.loc.gov/cgi-bin/cpquery/?&db_id=cp108&r_n=hr614.108&sel=TOC_85298&), I see that the sponsor of the bill (technically an amendment) was at least willing to admit that he believes Marbury v. Madison was wrongly decided. And one of the bill's supporter's is willing to concede that this bill will make the 5th and 14th Amendments unenforceable.

So it's not total ignorance that's behind this, just a desire to overturn 200 years of American jurisprudence just so as to disenfranchise gay people.

I confess I was momentarily amused, however, by Rep. Weiner referring tot he conservatice memebers of the current Court and "meshuggahs". :-)

[shy-kat.livejournal.com]

Argh!
This is just absurd. I was listening to a couple of supporters on NPR yesterday and thinking "they can't *possibly8 actually pass this". Looks like I was wrong. /sigh/

[winterbadger]

Well, it will without a doubt be overturned by the SCOTUS, but only after vast amounts of time and money have been spent in trying it.