Talk:Judicial review in the United States

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First 4 paragraphs seem very close to parent article with uses {{main}} template to linke to this. --Uncle Ed 14:38, 18 August 2006 (UTC)

Someone, please check that I finished the spin-off correctly. --Uncle Ed 14:43, 18 August 2006 (UTC)

Now that I've done the spinoff, I see that it's really too small to justify a sidebar article. It's better off along with Australia and Germany in Judicial Review. So let's finish cleaning it up, and then:

1. copy the text to Judicial_review#Judicial_review_in_the_United_States
2. turn Judicial review in the United States into a redirect

[edit] Problematic language

An anonymous editor added the following language:

Judicial Review in and of itself is an unconstitutional action as defined by Article III and Amendment X respectively. Article III gives no expressed power to the federal judiciary to review the constitutionality of Congressional statute. Therefore, having understood Amendment X to read, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people." it becomes readily apparent that the states and the people given state inaction have the power of judicial review, if such a power exists at all.

The idea that the Tenth Amendment gives the power of judicial review to the states or to the people and not to the Federal courts is laughable. The power of judicial review is not and has never been reserved for the states or for "the people."

The verbiage was properly removed by another editor. This verbiage was unsourced, non-neutral POV commentary. The view expressed -- that judicial review itself is unconstitutional -- is, bluntly, untenable from a legal, historical and political standpoint. Every ninth grade civics student knows that "judicial review" is not "explicitly" mentioned in the Constitution. Also not mentioned are court bailiffs, court reporters, the United States Air Force, the Federal Communications Commission, and a host of other things that are perfectly constitutional. In assigning power to the courts, however, the Constitution does explicitly refer to the "judicial power" of the United States. See also Marbury v. Madison. At this point in our legal history, to argue that the judicial power does not include the power of judicial view would be like arguing that the judicial power does not include the power to issue court orders, or the power to maintain decorum in a court room, or the power to instruct the jury on the law, or the power to determine whether the court itself has jurisdiction, all of which are examples of other judicial powers not specifically "mentioned" in the Constitution.

The basic legal status of the concept of judicial review was well settled long before any of us here today was born. Yours, Famspear 14:39, 20 August 2007 (UTC)

"Laughable?". Ah yes, the premise that any idea that is against mine is somehow amusing. The 10th Ammemdment states that powers of the Federal Government MUST be delegated, it does not say implied. Nowhere in the constitution is the power of reviewing laws for constitutionality delgated to ANY branch of the United States. An implied power is not the same as a delegated power, and it is therefore reserved for the States, or the people. Regardless of any self-empowering court ruling, the federal government and ALL of its powers exist because the States has collectively allowed it to exist. This is THE basic tenent of the constitution. The constitution exists because of the States; the Federal government can never change it. Yes the Federal government has a lot of powers not stated in the constition. But these implied powers are granted to the Federal Government by the States, not by the constitution. Because a Federal court rules that they have given themself this power does not make it right. Remember, the first words of the constitution are "We the people", not we the government. Angncon (talk) 07:10, 28 November 2007 (UTC)

[edit] Why Judicial Review Is Illegal

Marbury v. Madison is not valid law because the Supreme Court gave themselves authority to which they had no Constitutional right. This is not POV, nor is it conjecture, it is undeniable fact that the authority to deem laws unconstitutional is not assigned to any of the three federal branches of government. The tenth amendment clearly states that all powers not given to the constitutionally-listed governent branches, fall to the state governments, or to the people in the event of state inaction. Supreme Court rulings on this matter are irrelevant because they have no legal right to make such rulings. The Constitution is supreme law in this country, and despite what currently happens, judicial review is technically illegal.

Note* I happen to support amending the Constitution to permit judicial review, but as it stands no such power exists. —The preceding unsigned comment was added by 24.243.37.23 (talk) 05:47, August 21, 2007 (UTC)

Thanks for coming to the talk page, and being willing to discuss this. Suppose a case comes before a federal court. A statute says that the case should be resolved one way. However, the Constitution says that the case should be resolved another way. Which way should the court resolve it?Ferrylodge 05:52, 21 August 2007 (UTC)

As it stands the court must rule in favor of the statute. I am in favor of amending the Constitution to permit judicial review, but as written they have no such authority. If you can present me with evidence in the Constitution of SCOTUS's power of judicial review, I will gladly retract my argument. —The preceding unsigned comment was added by Mesthead115 (talk • contribs) 06:21, August 21, 2007 (UTC).

Why should they rule in favor of the statute instead of the Constitution? Because the statute was later in time? Is the later-in-time rule written somewhere in the Constitution?Ferrylodge 16:00, 21 August 2007 (UTC)

Under the Constitution, the court does not have the power to determine the legitimacy of law, they have only the power to interperet laws enacted by the Congress within the confines of civil and criminal proceedings. If a man was convicted of sodomy in the 1950's for example, he could appeal to the Supreme Court if any of his Constitutional rights were violated, but he could not claim the law itself to be unconstitutional because the court does not have the expressed, written authority to invalidate Congressional statute. —The preceding unsigned comment was added by Mesthead115 (talk • contribs) 16:23, August 21, 2007 (UTC).

What if Congress enacts a statute that says the President is not limited to two terms in office. Should the Supreme Court follow the statute, or follow the 22nd amendment?

What if Congress enacts a statute making black people slaves again. Should the Supreme Court follow the statute or the 13th amendment?Ferrylodge 16:50, 21 August 2007 (UTC)

As written, the Constitution only grants the court the power to interperet legislation, not invalidate it. So if a case arose where a man claimed his was not black, and therefore not a slave, the court could hear it.

I support amending the Constitution to permit judicial review, and this is the point you're missing. As written, the Constitution does not provide for judicial review, and I challenge you to provide Constitutional evidence to the contrary.

But what if Congress enacts a statute making black people slaves again, and an obviously black man goes to court and argues that slavery is prohibited by the 13th Amendment. The court has this choice: either invalidate the statute, or invalidate the 13th Amendment. Which should the court invalidate? I understand that you want to amend the Constitution to permit judicial review. But please address this hypothetical.Ferrylodge 17:43, 21 August 2007 (UTC)

The SC would be forced to remand the black man to a state of slavery because the Constitution is inadequate in the realm of protection of the amendments. My statement concerning judicial review is appropriate, and as such I will be including it in this article. —The preceding unsigned comment was added by Mesthead115 (talk • contribs) 19:24, August 21, 2007 (UTC).

Why do you think that the Constitution is less of a law than a statute? The Constitution itself says that it is part of the "supreme law of the land." Why is the Constitution any less adeqaute than a statute? And please stop editing the article until we reach consensus. You've not cited any source that says the "Constitution is inadequate" or has no force of law.Ferrylodge 19:53, 21 August 2007 (UTC)

Dear Mesthead115: Regarding your statements:

Marbury v. Madison is not valid law because the Supreme Court gave themselves authority to which they had no Constitutional right. [ . . . ] Supreme Court rulings on this matter are irrelevant because they have no legal right to make such rulings. [ . . . ] despite what currently happens, judicial review is technically illegal. [ . . . ] I am in favor of amending the Constitution to permit judicial review, but as written they have no such authority. If you can present me with evidence in the Constitution of SCOTUS's power of judicial review, I will gladly retract my argument.

We understand that you feel this way. Your arguments are totally unpersuasive and legally incorrect -- and (just as importantly) the material you wish to add to the article in its present form violates several Wikipedia policies and guidelines. With all due respect, I would suggest that you carefully read the material in connection with the links I have added to your talk page. Yours, Famspear 21:20, 21 August 2007 (UTC)

Oops, my mistake. The quoted language was posted by an anonymous user at IP24.243.37.23. I apologize to user Mesthead115 and to all other users. Yours, Famspear 22:15, 21 August 2007 (UTC)

That's okay. I think Mesthead115 and IP24.243.37.23 are one and the same.Ferrylodge 22:24, 21 August 2007 (UTC)

The US Constitution is not statute, it is in effect a statement of intent and a declaration of the powers of government, this we all recognize. Since the Supreme Court, Congress, and the Executive Branch are all created and empowered by this document, any authority they possess is derived from the articles and amendments therein. The Supreme Court is not empowered anywhere in the Constitution to interperet the Constitution, nor are they empowered to determine a law's Constitutionality. If anybody can demonstrate to me where I am missing the section that gives them such authority, I will happily withdraw my statements.

Marbury v. Madison is not valid law because the Supreme Court gave themselves authority which the Constitution did not. This would be similar to the President authorizing the executive departments to coin money, or Congress commanding an army. Just because they DO it, and we ALLOW it, doesn't make it LEGAL. Somebody show me CONSTITUTIONAL evidence of a right to judicial review of the Constitution. Until that time, my section will stay up. —Preceding unsigned comment added by 129.115.222.55 (talk) 12:55, August 28, 2007 (UTC)

Dear user at IP129.115.222.55: I'm sorry, but that's not how Wikipedia works. Other editors are under no obligation to show you "CONSTITUTIONAL evidence of a right to judicial review of the Constitution." If you want to insert verbiage into an article, the burden is on you to show that you are in compliance with the rules. What you are trying to do is called "soapboxing," and it is not allowed. You may want to review:

http://en.wikipedia.org/wiki/Wikipedia:Five_pillars

"Neutral Point of View": http://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_view (official policy)

"Verifiability": http://en.wikipedia.org/wiki/Wikipedia:Verifiability (official policy)

"No Original Research": http://en.wikipedia.org/wiki/Wikipedia:No_original_research) (official policy)

http://en.wikipedia.org/wiki/Wikipedia:Consensus (official policy)

http://en.wikipedia.org/wiki/Wikipedia:Reliable_sources (guideline)

http://en.wikipedia.org/wiki/Wikipedia:Citing_sources (style guide)

http://en.wikipedia.org/wiki/Wikipedia:What_Wikipedia_is_not (official policy)

And, especially, you may want to review:

http://en.wikipedia.org/wiki/Wikipedia:Fringe_theories (content guideline)

Your belief that Marbury v. Madison is not valid law, or that the Supreme Court is not empowered to determine a law's constitutionality, is from a legal standpoint an extreme fringe viewpoint. Also, Wikipedia itself cannot take the position, in a Wikipedia article, that your beliefs are "correct." You should look for reliable, previously published third party sources that state the propositions you wish to put in the article. Yours, Famspear 16:14, 28 August 2007 (UTC)

In general, I'd say the article feels a little off to me, possibly because the subject is currently a part of contentious political debate, but I have no desire to get involved in an edit war over such a subject again. However, I'll throw in my two cents of admittedly original research in the hopes of clearing things up for people:

• "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution[.]" (emphasis mine)
• This Constitution, and the Laws of the United States which shall be made in Pursuance thereof (...) shall be the supreme Law of the Land[.]" (emphasis mine)

In my personal, layman's opinion, judicial review is simply a matter of the courts dealing with a case where the accusation boils down to "Law X isn't made 'in pursuance' of the Constitution and is, therefore, not binding." And the rest of the Supremacy Clause goes on to make such a decision binding on state courts as well ("nor prohibited by it to the States" means the Tenth Amendment cannot confer what the Supremacy Clause denies).

And the argument that such action robs Congress of its legislative power is on shaky ground when one considers the powers Congress has under the Exceptions Clause and subsequent jurisdiction stripping, as was (in)famously done in the Military Commissions Act of 2006. Guppy313 05:58, 11 September 2007 (UTC)

If the constitution gave the SCOTUS the power of judicial review, then it would have simply stated so, and it not be necessary for the SCOTUS to issue a ruling declaring such.

A common persuasion technique for issues involving the constitution is to center discussion solely around those parts that agree with one’s argument. While those that espouse that the SCOTUS power of constitutional review (misnomer to “judicial review” for ease of acceptability) point to the “all cases” clause, they refuse to talk about the “judicial power” phrase. Judicial power is the power to adjudicate, nothing more. They have the power to decide who wins a court case according to the law as written, not to change the law.

While the constitution prescribes that laws are to be made in pursuance of the constitution, it is not the place of the SCOTUS to decide this. The power to decide the constitutionality of a law is inherent to those who decide the contents of the constitution; the states. This precept is further reinforced by the tenth amendment.

All powers of the federal government are given by the constitution, or by the states. They have absolutely no authority to give themselves any additional power without the consent of either.Angncon (talk) 18:48, 15 December 2007 (UTC)

[edit] Standard of Review Section Out of Date

The section uses "famous" "footnote four" in a 1938 case as evidence that the "presumption of constitutionality weakened somewhat during the twentieth century." The presumption of constitutionality broadened dramatically during the second half of the 20th century. In POPS v Gardner, 998 F.2d 764 (9th Cir. 24. 1993), for example, family law was reclassfied from civil law to social policy, allowing arbitrary political manipulation to allow states to maximize the amount of federal funding they recieve from the federal child support enforcement program. Williamson v. Lee Optical Co. (1955) is an early example of the use of rational basis (strongest presumption of constitutionality). The cited case (Carolene Products) - aside from its famous footnote four - was one of the New Deal decisions that used presumptive constitutionality. From the 1960s onward, what is described in footnote four as a mechanism for increased scrutiny (in particular suspect classes) were used to promote "reverse discrimination" - accepting legislation that violated the constitutional rights of classes seen as advantaged. I don't believe it should matter in this analysis what your individual feelings are regarding reverse discrimination (i.e. whether it's acceptable or not). The issue here is whether there was increased use of the presumption of constitutionality. As it became fashionable for Congress to write laws favoring the short list of members of "suspect classes" and courts allowed them, presumptive constitutionality certainly increased.

Additional consequences

Along with decreased scrutiny, came New Federalism (a term that is used to label legal / social reform movement in academics that uses federal policy reform as its primary mechanism. This movement has a very strong international component.). POPS provides an exceptionally clear example. It is not merely that the new social policy classification allowed the state to side-step the constitutional rights of non-custodial parents (ostensibly to provide advantages for women and children), but that the trigger was a dramatically increased role for the federal government in family law - an area that constitutionally belongs to states. Congress increased its involvement through welfare reform and used funding as a control mechanism. Federal funding however, was not restricted to effect only welfare cases. POPS was a group composed of non-custodial parents whose families had never been on welfare and were not on the verge of becoming eligible. It was in response to this group that the issue (not merely welfare system entitlements) had been classified as social policy - purely private family law issue transformed into the federal welfare system by applying the lowest level of constitutional scrutiny. With this background, homosexuals were later given preference in Mass. (state court) -- allowing marriage to be treated as merely a construction of arbitrary political policy. (Prior to POPS, marriage and family issues had been given the highest level of scrutiny to protect the institution.)

US reforms were in turn triggered by UN Conventions. The presumption of constitutionality has become so arbitrary as to allow conformance with conventions, no matter that they offend the Bill of Rights, and no matter that no treaty has been signed. New Federalism is intact, and the slippery slope has moved to the issue of New Internationalism.

The construction of the three levels of review has in effect, rewritten the Constitution. Interpretation has become a relatively arbitrary game of preferences. The Bill of Rights, separation of powers, limited federal power are all a thing of the past. This has been a huge transformation triggered by the presumption of constitutionality. The power of courts to defend rights against government intrusion has dramatically decreased. The powers of the federal government have increased without checks and balances that courts should provide. We have entered the 21st century as a much different country than it was in the middle of the 20th.

Rogerfgay (talk) 10:11, 4 February 2008 (UTC)