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Author Topic: Is Judicial Review Constitutional?  (Read 9189 times)
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« on: May 28, 2010, 01:25:23 am »
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...
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« Reply #1 on: May 28, 2010, 01:43:16 am »
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No, its extra-constitutional nonsense that has been used to enable tyranny.
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« Reply #2 on: May 28, 2010, 05:33:15 am »
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It's a key part of the Government - absolutely.
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« Reply #3 on: May 28, 2010, 10:22:19 am »
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No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.
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« Reply #4 on: May 28, 2010, 11:12:01 am »
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Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.
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« Reply #5 on: May 28, 2010, 11:17:51 am »
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No, its extra-constitutional nonsense that has been used to enable tyranny.

http://en.wikipedia.org/wiki/Lawrence_v._Texas

Very tyranny-enabling indeed.

Indeed.

http://en.wikipedia.org/wiki/Kelo_v._City_of_New_London
http://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
http://en.wikipedia.org/wiki/Plessy_v._Ferguson
http://en.wikipedia.org/wiki/A_%26_M_Records,_Inc._v._Napster,_Inc.
http://en.wikipedia.org/wiki/Roe_v._Wade
http://en.wikipedia.org/wiki/Bush_v._Gore
http://en.wikipedia.org/wiki/Illinois_v._Caballes
http://en.wikipedia.org/wiki/Board_of_Education_v._Earls
http://en.wikipedia.org/wiki/Atwater_v._City_of_Lago_Vista
http://en.wikipedia.org/wiki/Oliver_v._United_States
http://en.wikipedia.org/wiki/United_States_v._Ross
http://en.wikipedia.org/wiki/Terry_v._Ohio
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« Reply #6 on: May 28, 2010, 02:11:32 pm »
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Don't forget this one:

http://en.wikipedia.org/wiki/Wickard_v._Filburn
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« Reply #7 on: May 28, 2010, 02:24:40 pm »
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Of course, there are tons more that could be cited, but I'm sure BRTD thinks a case like that abusing the Constitution's language to expand government power over the economy was a good thing.
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« Reply #8 on: May 28, 2010, 02:28:26 pm »

Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

Without judicial review, the Supreme Court wouldn't have been able to block any of Congress' power grabs. I can see why you and Libertas would be upset that it hasn't done more to hold in check Congress' efforts to extend the Commerce Clause, but without judicial review, who would be able to?
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« Reply #9 on: May 28, 2010, 02:32:37 pm »
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Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

Without judicial review, the Supreme Court wouldn't have been able to block any of Congress' power grabs. I can see why you and Libertas would be upset that it hasn't done more to hold in check Congress' efforts to extend the Commerce Clause, but without judicial review, who would be able to?

It's the duty of the states and of the people to hold the federal government in line, not another tentacle of the federal government itself.
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« Reply #10 on: May 28, 2010, 02:35:01 pm »
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That case is pure Rube Goldberg logic.
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« Reply #11 on: May 28, 2010, 02:55:07 pm »

Thomas Jefferson warned that giving the Supreme Court the power of judicial review would subject us to the "despotism of an oligarchy."  I think that in principal it is necessary for there to be a branch of government to check the other two branches, but it is dangerous when the Supreme Court has the power to essentially stealth-amend the Constitution however it may please.  It is with the power of judicial review, that the Supreme Court was able to widen the Commerce Clause like a forty year old hooker, allowing every little thing that might have something to do with interstate commerce to be passed.

Without judicial review, the Supreme Court wouldn't have been able to block any of Congress' power grabs. I can see why you and Libertas would be upset that it hasn't done more to hold in check Congress' efforts to extend the Commerce Clause, but without judicial review, who would be able to?

It's the duty of the states and of the people to hold the federal government in line, not another tentacle of the federal government itself.

State nullification would lead inevitably to either a change from a Federal to a National government or the dissolution of the Union.  It gives the States too much power.

The people can either vote or rebel, but neither approach is capable of dealing with specific instances as judicial review can, nor can either approach work quickly. (Not that the courts usually work fast either, but they can on occasion.)
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« Reply #12 on: May 28, 2010, 05:36:05 pm »
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Yes.
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« Reply #13 on: May 28, 2010, 07:05:25 pm »
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It's necessary, though like anything else it can certainly be abused. I'm not convinced of its constitutionality, though.
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« Reply #14 on: May 28, 2010, 07:41:49 pm »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.
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« Reply #15 on: May 28, 2010, 07:57:53 pm »
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I find it hard to find something that's gone pretty much unchallenged except by the fringiest types for over two centuries unconstitutional.  Unless you think you know the Constitution better than several hundred Supreme Court Justices.
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« Reply #16 on: May 28, 2010, 08:16:02 pm »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?
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« Reply #17 on: May 28, 2010, 08:16:17 pm »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

I just said that I thought judicial review was necessary. Don't say that I'm not convinced that judicial review is unconstitutional because I don't like it. That's an outright smear and intellectually dishonest. And if you're not talking to me, Deldem, well, forget I said anything. Grin

Anyway, the reason why I'm not convinced is because the power of judicial review was never expressly mentioned in the Constitution. And powers "not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," as the tenth amendment stated. The real reason why we have judicial review is because of the precedent John Marshall set in Marbury v. Madison

Realize that why I may hold my Constitutional reservations, I in no way shape or form recommend ending judicial review, though I believe judges should be careful and use judicial review only when necessary.
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« Reply #18 on: May 28, 2010, 08:55:59 pm »

It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

Quote from: Article I Section 8 Clause 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Quote from: 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.

Quote from: Article VI Clause 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Quote from: Judiciary Act of 1789 Section 25
And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.
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« Reply #19 on: May 28, 2010, 09:32:46 pm »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

Quote from: Article I Section 8 Clause 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Quote from: 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.

Quote from: Article VI Clause 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Quote from: Judiciary Act of 1789 Section 25
And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.


The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"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

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”



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« Reply #20 on: May 28, 2010, 10:08:54 pm »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

Quote from: Article I Section 8 Clause 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Quote from: 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.

Quote from: Article VI Clause 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Quote from: Judiciary Act of 1789 Section 25
And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.


The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"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

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”





If Mr. Madison had doubts post hoc, he certainly did not write them into the Constitution.  Nor did Jefferson, seeing as how he was in Paris at the time of drafting.

With or without the Judiciary Act, the power was there.  Now, we can disagree as to the scope or what should be done with it (or whether Congress should restrict it, as they can), but it's rather silly to argue it doesn't exist.  It's there either by design or mistake, but it is there.
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« Reply #21 on: May 28, 2010, 10:21:14 pm »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

What provision of the Constitution authorizes judicial review?

Quote from: Article I Section 8 Clause 18
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Quote from: 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.

Quote from: Article VI Clause 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Quote from: Judiciary Act of 1789 Section 25
And be it further enacted, That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a circuit court, and the proceeding upon the reversal shall also be the same, except that the Supreme Court, instead of remanding the cause for a final decision as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute.

Even if one takes the opinion that there is not an absolute grant of the power of judicial review to the Supreme Court under Article III Section 1 within what is understood to be "the judicial Power of the United States", Congress has from the very inception of the federal Judiciary given the Courts the authority to "carry into Execution" Article VI Clause 2.


The concept of judicial review was established by the court itself selectively interpreting the Judiciary Act to support something that wasn't originally intended. The idea was rightfully opposed by President Thomas Jefferson, who clearly did not believe it was Constitutional, as well as by James Madison.


"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

“Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising under the Constitution, and whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.”





If Mr. Madison had doubts post hoc, he certainly did not write them into the Constitution.  Nor did Jefferson, seeing as how he was in Paris at the time of drafting.

With or without the Judiciary Act, the power was there.  Now, we can disagree as to the scope or what should be done with it (or whether Congress should restrict it, as they can), but it's rather silly to argue it doesn't exist.  It's there either by design or mistake, but it is there.

Uh, the power didn't and doesn't exist in the Constitution. They didn't write into the Constitution. It's not there.
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« Reply #22 on: May 28, 2010, 10:30:59 pm »


"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

Jefferson also doubted whether the Louisiana Purchase would be Constitutional without an Amendment.  Shall we give that back to France, the Mexican Cession and the Gadsen Purchase back to Mexico, Alaska back to Russia, etc. because Jefferson said so?

The fact is that Jefferson was no paragon of Constitutional virtue.  He routinely decried actions as unconstitutional before he was President that he would undertake the equivalent or worse once he was President.  Jefferson was no Constitutionalist, he was a political hack of the first order who wrote some eloquent phrases that he paid attention to only when it was convenient.
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« Reply #23 on: May 28, 2010, 11:29:56 pm »
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"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

Jefferson also doubted whether the Louisiana Purchase would be Constitutional without an Amendment.  Shall we give that back to France, the Mexican Cession and the Gadsen Purchase back to Mexico, Alaska back to Russia, etc. because Jefferson said so?

The fact is that Jefferson was no paragon of Constitutional virtue.  He routinely decried actions as unconstitutional before he was President that he would undertake the equivalent or worse once he was President.  Jefferson was no Constitutionalist, he was a political hack of the first order who wrote some eloquent phrases that he paid attention to only when it was convenient.

That Jefferson was flawed as a president does not change the fact that, at least in his words, he certainly was a Constitutionalist, knowledgeable about how the Constitution was intended to be interpreted from an original intent perspective.
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« Reply #24 on: May 29, 2010, 12:01:19 am »
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It's silly to say that judicial review is not constitutional. What provision of the Constitution does it violate? Just because you don't like something doesn't mean that it is unconstitutional.

The Constitution doesn't work like that.  It is a set of few delegated powers.  If something doesn't violate the Constitution or isn't specified, it isn't automatically constitutional.  Using that reasoning, we might as well not have a Constitution at all.

This is Article III of the Constitution:

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Article III - The Judicial Branch

Section 1 - Judicial powers

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 Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(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; 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.) (This section in parentheses is modified by the 11th Amendment.)

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.

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 - Treason

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.

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.

I see nothing in there that gives the Supreme Court the power to stealth-amend the Constitution.  I am not saying judicial review is unconstitutional because I don't like it, but because it is unconstitutional.
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