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]

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.