It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CHARTA, obtained by the barons, sword in hand, from King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the Petition of Right assented to by Charles I., in the beginning of his reign. Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.
The courts rule on laws and the constitution. The constitution trumps any laws. Meaning in the constitution is decided by the courts since they have the appellate Jurisdiction.
Is Delay's threat to the judiciary an attempt to encroach upon or oppress them?
Foxfyre thought the present rulings by the judges made them superior to the legislature. I would point out that this passage would show they they were not but were rather preventing the legislature from making themselves superior to the people by violating the constitution.
Quote:[...]I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. [/b] [...]
The dangers that Hamilton warned about exist. If one person argues that he/she has a right to privacy -- to live his/her life free from governmental intrusion -- there will be other persons who challenge the existence of this right. They will say, "Show me in the constitution where it is specifically written that you have the right to privacy?" They will argue, if it's not listed or enumerated somewhere in the Constitution, it doesn't exist. And, this argument ALWAYS fails to recognize that We the People did not surrender our rights when we formed our government -- we formed our government to secure our rights.
I'm not saying this because judicial review is a terribly bad thing. It clearly is not. It's just that Marbury v. Madison illustrates nicely what supporters of strict construction mean by 'judicial activism', and by the practice of 'making law under the pretense of interpreting it.'
Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
I felt that Justice Marshall was saying that the principle of judicial review is at least implied in the Constitution.
The most significant step in understanding constitutional law is recognizing that the constitution did not create individual rights.
The Declaration of Independence sets forth the truth: We are born with inalienable rights. We form governments to secure our inalienable rights.
When our founding fathers drafted the Constitution, they created a government of limited powers. To protect the people from tyranny and oppression that would likely occur if too much power accumulated in one single branch of the government, the foundings fathers provided for separation of powers and checks and balances.
When our founding fathers drafted the Bill of Rights, they were not creating "constitutional rights," they were placing limits on government's power to infringe upon the rights that we already had.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The dangers that Hamilton warned about exist.
Brutus' rebuttal was that the federal government would grow beyond those enumerated powers, unless Americans' inviolable rights were clearly laid out in a Bill of Rights.
This leads to an interesting question of which I assume there is a difference of opinion. Does the court create law when it enumerates a right that isn't listed in the constitution? Or is the court only pointing out more inalienable rights that the legislature is limited in interfering with?
Most of the controversial decisions from the court I can think of actually base rights on existing rights listed in the constitution. The right to refuse medical treatment is based partially on the 14th amendment as is the right to an abortion. Are these rights an extension of existing rights or a creation of new rights? Certainly a topic in and of itself.
parados wrote:The courts rule on laws and the constitution. The constitution trumps any laws. Meaning in the constitution is decided by the courts since they have the appellate Jurisdiction.
Well for starters, where in the constitution does it say that courts can void the laws of Congress by ruling them unconstitutional? England didn't have judicial review of legislation when America declared independence, and nothing in the constitution introduced it. Judicial review was established by the Supreme Court's ruling in Marbury v. Madison, on no constitutional basis whatsoever. My source for this is Jay Feinman: Law 101 -- Everything You Need to Know about the American Legal System. Oxford University Press (2000). The author of the book is a liberal with no axe to grind in favor of strict construction.
That was not my point, wandeljw. You are correct in saying that the Constitution gives the Supreme Court a power that "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." That gives the federal courts the power to hear certain kinds of cases. It does not give the federal courts the power to excercise judicial review of Congress in hearing them. It does not tell us that the constitution takes precedence over all other "laws of the United States". It does not tell us that the Supreme Court, rather than Congress or the President or the states, is the supreme authority for deciding what the constitution means. (The "Supreme" in "Supreme Court" refers to its status within the federal court system, not to its status relative to the executive and the legislature.)
Attorney General for Elizabeth, Chief Justice during the reign of James, and a leader in Parliament in opposition to Charles I, used Magna Carta as a weapon against the oppressive tactics of the Stuart kings. Coke argued that even kings must comply to common law. As he proclaimed to Parliament in 1628, "Magna Carta . . . will have no sovereign."
"Law temporall." Which consisteth in three parts, viz, First, on the common law, expressed in our bookes of law, and judiciall records. Secondly, on statutes contained in acts and records of parliament. And thirdly, on customes grounded upon reason, and used time out of minde; and the construction and determination of these doe belong to the judges of the realme.
The common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and control them.
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
parados wrote:
Is Delay's threat to the judiciary an attempt to encroach upon or oppress them?
I think you're assuming your conclusion. Religious Americans routinely make remarks to the effect that human courts are not the highest ones, and that bad people who didn't pay for their sins in this life will have to pay for it in the afterlife. DeLay's wording was consistent with that interpretation; and while I don't like the remark, I think it's hype to call it a threat.
Assume that Congress passed a bill that provides for the establishment of of the Federal Church of God. Assume that the President vetos the bill because it violates the Constitution, but Congress musters enough votes to override the veto.
The facts are simple: The supreme law of the land says Congress shall make no law respecting the establishment of religion.
The judiciary was created as a branch of government and our courts exist to decide cases and controversies that arise under the constitution and the laws made pursuant thereto. If two laws conflict, the superior law in the heirarchy of laws prevails -- and the Constitution is the supreme law of the land.
I understand what you are saying Thomas but I question the logic. If the constitution has no power over any law passed by congress then Congress and the President of one party could easily pass a law that eliminates the courts. I highly doubt that was the intention of the constitution since it places pretty strict restrictions on what Congress can do.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning,[/[/color]B] as well as the meaning of any particular act proceeding form the legislative body.
Welcome back Parados. Hope you had a great trip.
To me an inalienable right is that which requires no contribution or participation by any other person other than his or her noninterference. I think this is implied in the Federalist papers. I wish it was affirmed in the Constitution.
In the examples you cited the 'right to refuse medical treatment' is affirmed in the 14th amendment except when it comes to minor children and certain other factors pulling in the First Amendment and additional considerations.
Should I be able to refuse medical treatment? Sure. But should I be able to refuse to be vaccinated against communicable diseases and still have the right to participate in social activities? Does the school have to allow the HIV positive student play on the football team despite a lot of frequently bloody physical contact? The government requires the parent to provide for the kids but steps in to prevent the parent from abusing the child, not educating the child, or putting the child at risk without a proper seat belt or child seat and/or exposure to many other hazards. Also the parent is required to immunize the children against specific communicabl diseases and there are some who say certain religious groups should not be allowed to refuse medical treatment for their kids. So whose kids are these? Ours? Or the governments?
The issue of abortion is just as complicated. The right of the woman to have an abortion was based on an argument that only those 'born' have constitutional protection and thus the woman should made her own decisions regarding her body. But if she uses illegal substances that harm the unborn child she can be held liable; laws are being passed that injury to a pregnant woman can also include injury to her unborn baby, and then there is the absurdity of it being legal to kill the baby five minutes before birth or even as the baby emerges from the womb, but killing it five seconds after birth is murder.
I think every time the courts rule on matters like this, they frequently are making new law that was never envisioned by the federalists.
If it is a right how can it be a new law? Inalienable rights can't be created by laws they can only be infringed. That is part of what I wanted to discuss in this thread is what you think is making law when it comes to the court. Can you provide a specific example that we can discuss?
The idea of the courts being able to declare an act by the legislature unconstitutional is hardly a new one in 1803. It is discussed in Federalist 78
