Foxfyre wrote:The problem with going with only the clauses in Article III
Our government was organized into three branches: The legislative (Article I); the executive (Article II); and the judicial (Article III).
Where else are you going to look in the Constitution for the supreme law that defines the judicial power of the Supreme Court?
Quote:So does the court get to write its own job description and can arbitraril make that prettymuch anything it wants? Most states have a 'list of duties' assigned to their supreme courts. The federal government seems to have no such animal.
No branch of the government, whether it be judicial, legislative, or executive, may arbitrarily define its constitutionally-conferred powers any way it wants.
The judicial branch doesn't get to write its own "job description." The judicial power of the Supreme Court is set forth in Article III. Likewise, the legislative power of Congress is set forth in Article I and the executive power of the President is set forth in Article II.
All states have organized their state governments into three branches of government through their state constitutions in the same manner that the federal government has been organized into three branches through the federal constitution. I don't understand your unsupported conclusion that state governments are somehow different and that the federal government is a strange animal.
Quote:Can the court decide what is and is not a 'case' or can that be guided by the legislative branch?
Remember, Article III, Section 2, provides that the judicial power shall extend to ALL cases arising under the Constitution or the laws of the United States, etc.
For illustrative purposes, Congress passes the hypothetical law that provides the following:
Quote:Hypothetical Law 101, Unlawful Entry into a House of Worship, Establishment of the Department of National Productivity:
Congressional Findings: Congress has the power to regulate interstate commerce and to make all laws that are necessary and proper to Congress's exercise of that enumerated power pursuant to Article I of the Constitution. Congress finds that interstate commerce is affected when the people spend time in their houses of worship when that time could otherwise be spent to increase national productivity. Congress therefore finds it proper and necessary to declare the following:
1. A house of worship shall be defined as any space, enclosed or open to the elements, where the people may congregate to worship the God or Gods of their choice.
2. It shall be a civil offense for any person to enter a house of worship and any person who violates this provision shall pay a civil fine in the amount of $5,000.
3. It is Congress's intent that this law shall be construed by the Courts as remedial (civil) rather than punitive (criminal). It is Congress's intent to remedy the affects that unproductivity have on the national economy, not to punish the individual(s) involved. Therefore, the procedural protections for criminal offenders contained inthe Constitution shall not apply.
4. Congress hereby establishes the Department of National Productivity (DNP) as an administrative agency within the Executive Branch. The DNP shall establish national productivity committees in every state and the committees so established shall have exclusive jurisdiction to determine if any individual has violated this law.
5. If the committee alleges that an individual violated this law, that allegation shall be presumed true. If the alleged offender cannot rebut the presumption by clear and convincing evidence, the the offender shall be fined $5,000 and failure to pay that fine within 30 days without regard to ability to pay shall be a crime punishable by $5,000 or 5 years in prison or both.
6. The judicial power of the courts to review any decision of a national productivity committee shall be limited to a determination of whether the alleged offender met his/her burden of proof to overcome the statutory presumption.
7. Congress has determined that this law is necessary and proper to Congress's power to regulate interstate commerce and the Courts shall not have jurisdiction to review this Congressional determination.
8. Congress has determined that this law does not violate the First Amendment because the people still have the right to associate with others and to freely exercise their religion, they simply may not spend time in houses of worship when that time could otherwise be spent to increase national productivity. The Courts shall not have jurisdiction to review this Congressional determination.
If you review the above hypothetical law, you may think it's ridiculous -- but it's not. Our government is notorious for recharacterizing offenses as remedial / civil rather than punitive / criminal as a clever means to avoid the proscriptions of the Constitution. How many legislative violations of the Constitution can you identify in the hypothetical law? If you are educated to identify stealthy governmental encroachments upon civil liberties, then you will find a multitude of constitutional violations -- yet all of those constitutional violations have been insulated from any meaningful judicial review (which is also common place in the "administrative law" context.)
Fox naively asks, "Can the court decide what is and is not a 'case' or can that be guided by the legislative branch?"
This question is so naive because she advocates a position of legislative oversight of judicial powers and at the same time fails to understand the fatal blow to the Constitution that would logically follow if the people blindly agreed with her position. Fox desires to change the very essense of our constitutional government in order to get what she wants. But she fails to understand that the very power she wants to vest into the legislative branch to curtail judicial review would have devastating effects and render the constitution meaningless.
If Congress could determine what is a case or controvery subject to judicial review and could determine for itself whether its laws violate the Constitution and prohibit judicial review -- there would be nothing to stand in the way of Hypothetical Law 101.
Look forward in time. What if in a hundred years from now, in the year 2105, that 51 percent of the people believe that the most important thing to security of our nation is to increase individual productivity and believe the bible-banging activities of the religious right are harming our economy? Could 51 percent of the people deny the other 49 percent of the people the right to enter their houses of worship? If we do what Fox wants us to do -- to agree with her -- then the people, through their elected representatives in Congress, could pass Hypothetical Law 101.
If Congress itself has determined that Hypothetical Law 101 does NOT prohibit free exercise, but merely places a necessary and proper time, place, or manner restriction on the right in furtherance of its commerce clause powers, there would be no judicial review. The courts would not be allowed the independence to review the law and determine whether Hypothetical Law 101 violated the rights of the minority with respect to free exercise of religion under the First Amendment.
To the majority: Be careful what you wish for -- you just might get it. Before you advocate a position that completely guts the independence of the judiciary and renders the constitution meaningless, you better use your powers of reason and logic and look at the consequences.
Quote:Does the court have free rein to create a law where none existed before or does the legislative branch have no role in defining what is and is not appropriate in that area?
IF you want the legislative branch to have the ultimate authoritative power concerning the interpretation of the Constitution and what constitutes "cruel and unusual punishment," "due process of law," (e.g., recharacterizing offenses as civil / remedial rather than criminal / punitive), the "establishment of religion," or the "free exercise of religion," then travel down the road you are advocating.
It's a two-edged sword. If Congress should determine that a law that makes it a civil offense for any person to enter a house of worship does NOT prohibit the free exercise of religion -- and if you should desire that determination to be authoritative and NOT subject to judicial review -- then advocate away! I think you are naive and are making this country a mockery, but don't let my opinions stop you from leading this country down the path of destruction wherein no person's fundamental rights will be secured by the Constitution.
Quote:If the legislative branch moves to amend the Constitution, can the Supreme Court rule on whether the amendment they propose is unconstitutional?
Look at Article V: If two-thirds of the Congress propose an amendment and three-fourths of the states ratify the amendment -- then the amendment becomes the SUPREME LAW OF THE LAND. An amendment that comes later in time explicity or implicitly repeals or supercedes any earlier provision that conflicts with the amendment.
See the 18th Amendment that prohibited the manufacture, sale, or transportation of intoxicating liquors within the territorial jurisdiction of the United States. It was the law of the land. The Supreme Court has no power to declare any part of the constitution unconstitutional. That makes no sense. The 18th Amendment was the supreme law of the land until it was repealed by the 21st Amendment.
Accordingly, two-thirds of the Congress could propose to amend the Constitution to strip power from the Judicial Branch, to confer the power to interpret the Constitution solely to Congress, and to establish a CONCLUSIVE presumption that all laws are constitutional and not subject to judicial review. If three-fourths of the States ratify the proposed amendment, it becomes the law of the land.
If that's what you truly want -- go for it. We will then have a pure democracy (rather than a republican form of government) wherein 51 percent of the people, through their elected representatives, will have the power to take away the rights of the remaining 49 percent of the people. The minority will not have any right to an independent judicial review and that will be our way of life until the next bloody revolution.
Quote:If there is no power above the Supreme Court and no provision for mitigating the power of the Court, how is it that we are in fact not a totalitarian state rather than a republic where the people themselves are the final check and balances on government?
There is a power above the Supreme Court. It's WE THE PEOPLE. If we don't want the Supreme Court to have the power to interpret the Constitution and to stand as the guardian of our individual rights secured therein, then we can take the power away from the Supreme Court.
Is that something you want? Think about it long and hard. You want the Supreme Court's jurisdiction limited so that the Legislative branch has the power to decide whether or not monuments to the Ten Commandments may be placed on public grounds, or whether children may be executed, or whether women should have the right to decide whether or not to bear children.
You seem to believe, that if the Supreme Court determines that the Constitution does not allow the majority of the people to impose their moral or religious beliefs upon others through laws, that the Supreme Court has somehow violated YOUR right to majority rule. This tells me that you do not even possess a fundamental understanding of the difference between a republican form of government and a pure democracy.
OMG! The Supreme Court ruled that it violates the Constitutional prohibition against cruel and unusual punishments for states to inflict the death penalty upon children (defined to be persons under the age of 18.) That's bullshit! I'm a member of the majority and we, the MAJORITY, want the right to put children to death when they commit atrocious crimes!
FACT: The MAJORITY of the people, through their elected representatives, have the right to enact any law that does NOT violate the constitution (the fundamental, supreme law of the land).
FACT: If the majority of people want to violate the Constitution any time it wants to, then they need to shackle the powers of our constitutional guardians.
If you want to learn about the true evils of living in a totalitarian state, then do exactly what you are advocating . . . and when your elected representatives decide to extinquish the people's right to vote and subject the people to whatever laws they choose to enact . . . and to get rid of all dissenters in a reign of terror . . . where will you turn to safeguard your rights and avoid a trip to the gallows or the guillotine?
