Is it possible for an amendment to the Constitution.....

No

What if an amendment was passed saying that it was illegal to criticize the President ? Could the Supreme Court say that this amendment was unconstitutional because it contradicted the amendment guarenteeing the right to free speech?

Yes

No, in that it would be considered as a specific amendment of that portion of the constitution. The constitution is a document which grows by accretion. Each amendment becomes a part of the body of the document, and each subsequent admendment adds to, subtracts from, or modifies all that which has gone before. The free speech and free press portions of the first amendment have been modified by judicial interpretation on more than one occassion, by an appeal to what Justice O. W. Holmes termed "a clear and present danger." Of course, conceivably, the Supremes could do as you suggest. In the logic of the law, however, it would not be within the scope of their power to do so.

Article III of the constitution provides for a judiciary, and delineates the powers thereof; it reads, in part:


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 Behaviour . . .

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.

I have ommitted those passages of sections 1 & 2 of article III which do not specifically treat of the power of the Supreme court. Notice that "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior . . . " This refers to a medieval formulation, se bene geserit, meaning "so long as well conducted." It is conceivable that Justices of the Supreme court could be removed on a charge of bad behavior if they attempted to overturn any portion of the constitution by sheer fiat. Please also note the last sentence quoted above, which clearly gives Congress the power to regulate the Supreme's appellate jurisdiction as to matters of fact and of law. This would also be a mechanism which could prevent judicial tyranny without resort to extra-constitutional means. If the nine old men and women of the Court were seen to have so eggregiously overstepped their authority as to warrant Congressional action, and they remained recalcitrant, the Congress could forcibly remove them from office as not being well conducted, again, without doing violence to the constitution.

Conservatives often howl about the Court "legislating" from the bench. This complaint arises, of course, from decisions which do not please the complainers. They ignore how jurisprudence has functioned for at least 2500 years. Beginning with the Romans, codes have been enacted to provide a written record of the law, with an advance understanding that no codifier can foresee every legal eventuality. Therefore, courts will make findings of fact (i.e., women are civilly nothing inferior to men, and shall have all the rights appertaining to an adult, without regard to their gender) and findings of law (i.e., your case does or does not conform to the letter and/or spirit of legislation or codification as you have stipulated it), and these findings are accreted, just as are amendments to the constitution, as a part of a growing body of law--referred to in jurisprudence as precedence.

The most famous example of this in our constitutional history come from the decision in the case of Marbury v. Madison. Mr. Marbury had been awarded a commission as a justic of the peace by the Adams administration, which James Madison, as the Secretary of State for Thomas Jefferson, refused to acknowledge. He brought suit, and given that the case was a "controversy to which the United States shall be a party," as well as a case which was "affecting . . . other public Ministers . . . ," the Supreme Court was the court of original jurisdiction, and the case came before the Court immediately. The Chief Justice, John Marshall found for Mr. Marbury, issuing a mandamus for his commission to be instated. This is not, however, the germaine issue.

What is germaine is the following:

This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired, Whether it can issue from this court.

In simpler language, Marshall is stating a finding of fact that Mr. Marbury is entitled to his commission, based upon the arguments advanced in the first portion of the opinion, and is now arrived at the question of whether or not the Supreme Court has the authority to order the mandamus--the authority to make a finding of law to support the remedy.

To this issue, Marshall rehearses the relevant passages of the constitution which establish and define judicial powers, and then makes the following disquisition, which is the basis upon which all authority of the Supreme Court to pass upon the constitutionality of any legislation or executive order has proceeded ever since:

The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. . . .

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. . . .

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each. . . .

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty . . .

Marshall is basically saying that a people would not begin their career as a legal society based upon a social contract by writing a constitution unless they intended that constitution to be the supreme law of the land. Therefore, he is also saying that as a finding of law, the Court is empowered to void or modify legislation or executive order as unconstitutional. Marshall concludes his opinion with a finding that constitutional law supercedes all other law or writ, whether issuing from the legislative or the executive branches. The only remedy remaining for an appeal from such a decision of the Court, is the amendment of the constitution.

Of course.

If we passed an amendment that said it was illegal to criticize the president, it would be illegal to criticize the president. An amendment is part of the constitution and therefore is by definition constitutional.

Look at the 18th and 21st amendment. The 18th prohited the use or sale of alcohol. The 21st repealed it. Of course the later amendment sticks.

There is a movement to create an amendment to prohibit flag-burning. This would directly contradict the first amendment. But, if this passes, burning a flag will become constitutionly illegal.

Because amendments are so powerful, they are very difficult to pass. This is what protects us against the whittling away of rights.

But once an amendment passes, it becomes the supreme law of the land and can not be challenged.... except by another amendment.

Also note that the application of the law can change due to changinging interpretations of the Constitution.

Since the Supreme Court interprets the constitution, and rules based on that interpretation, the particular human representation at any given time can have the effect of altering the law without changing the wording of the Constitution.

Best Regards,

That's a rather shallow and naive statement of the mechanism of juridical precedence . . .

Is it? I'm thinking of all the laws passed on interpretations of things like the interstate commerce clause. It certainly seems as though the constitution says what the Supreme Court says it does.

Not a challenge, but an invitation to expand your thoughts for us.

Hi Set, always a pleasure to hear from you

Hi Roger, I was refering to this: The Court and Constitutional Interpretation: ... "As the final arbiter of the law, the Court is charged with ensureing the American people the promise of equal justice under the law and, therby, also functions a the guardian and interpreter of the Constitution."

The source is here: http://www.supremecourtus.gov/about/constitutional.pdf

My point was that human interpetation is a part of the system, and that it's an important part, given that human views change over time. Through this mechanism, the founders gave a little bit of "life" to their constitution.

Best Regards,

Do forgive me Rosborne, in that i saw what you had written as a comment about the unreliable nature of statute due to "human" interpretation. I am still uncertain as to why you feel it necessary to introduce the word human into the discussion. I know of no law which is of any provenance other than human, and any appeal to morality or a deity is an appeal to a human conception, and therefore, one still has a "human" basis for law.

As for my comment about juridical precedence--no court "interprets" the law upon any other basis than legal precedence, and constitutional text--that is the theory at least. Certain justices, such as Scalia and Thomas, would like to introduce a concept known as "natural law," which has the suspicious odor of christian morality. They will need to impress upon their colleagues that there is a precedent, or reference to consitutional principle to achieve that, however.

The passage you quote from the Supreme's site is interesting . . . the precedent for the Court passing upon the constitutionality of statute is Chief Justice Marshall's opinion in Marbury v. Madison. Rather than once again reviewing that decision, as i've already done several times at this site, i'll got get you a link . . .

Patriot I bothers me a great deal, because it takes away our Constitutional Freedoms. Where do we go for safeguards against such laws? c.i.

I don't know, c.i. Isn't that the problem with Patriot I? The absence of recourse from abuse, I mean?

There was a particularly good site on Marbury v. Madison, which i cannot, unfortunately, find at the moment. The link below leads to a rather dry text, but one which explains well how Justice Marshall established the right and responsibility of the Supremes to pass upon the constitutionality of statute:

Marbury v. Madison[/color]

The text of the constitution does not explicity give this power to the Supremes--nor does it deny it them. Marshall's decision has established this power.
Please keep in mind that judges only very rarely impose their personal opinions, unsupported, upon the law. They may wish to do so, but they must be able to support such opinions by reference to legal precedence, or constitutional text. Those who are in the courts which rank below the Supremes are always subject to reversal, and judges hate to be reversed with a passion. By and large, judges at any level are very careful about what they decided, and how they justify it.

Yes. Arab Americans have been treated without any legal rights. It's highly disturbing, because that's what happened to us during WWII. We were sent to concentration camps in the US without any legal rights - without any charge of criminal behavior. That it can still happen today in this country bothers me a great deal. Our government used "national security" as the basis for taking away our rights back then, and it's happened again. c.i.

No problem Set, I'm just here to have an enjoyable discussion and maybe learn something in the process, not to rattle anyone's cage.

Perhaps I'm stating the obvious when I mention the human aspect of the law, but I think it's an interesting and important part of our system, and one worth mentioning.

I've read several Supreme Court Justices' rulings and have generally been very impressed with the thoughtfulness of them. On the other hand, I've also read some of Justice Scalia's rulings, and been less than impressed (essentially, I interpret things differently than he does).

I hope that the constituency of the bench doesn't change such that Scalia's views represent a majority. Otherwise, I fear that the Establishment Clause may be warped beyond recognition.

I'm not familiar with the precedent for the court passing upon the constitutionality of statute, but I would like to know more about it. I'll check out your link and do some reading on Marbury v. Madison

Thanks,

When the USSC reviews a case they usually defer to their prior decisions as precedent (the Court has traditionally been loathe to over-rule their own prior rulings). If they haven't ruled on a specific issue they can look to the lower courts and they can also review the records of Congressional activity and base their decision on those records.



It happens but that that has never occured in any sizeable number of decisions since the Courts inception. It is seen a lot in dissenting minority opinions though.

These two preceding paragraphs get into basis of the difference between the "strict constructionalist" and the "living document" camps on Constitutional law.



In some cases there are multiple precedents. The Court may become the artibtrator of which precednet rules over the other in those cases. In the case you are referring to the appeal to the USSC is based on a believed conflict between the state constitution and the federal constitution. The Federal Appeals court ruled that the Federal constitution takes precedence. Since the 10 Commandments display is located in a state courthouse the AL SC Chief Justice was arguing that the State Constitution should take precedence.

btw, the USSC refused to hear that case yesterday so in effect the Federal appeals cout ruling stands and the display must go.

Good questions, Boss, very good questions. Article VI of the constitution reads, in part:

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.

Therefore, all precedential rulings are referential to the constitution, if no more so than the question of whether or not they violate a stricture, or fail to coincide with an injuction thereof. So, for example, a judgment given early in our nation's history, when the body of United States precedential ruling was still necessarily small, which might have referred to English common law, could be sustained only to the extent that it was not contradicted by the constitution.

At the time in which Marshall delivered his opinion in Marbury v. Madison, there was no federal appellate judiciary system other than the Supreme Court, and the only other federal courts were the federal district courts and the courts of common plea in the District of Columbia. Marshall and the other justices of the Supreme Court rode the circuit in each of the Federal Circuits, and sat on the bench to hear the causes brought in appeal. The Congress was at that time in the grip of the Republican Party (only tenuously related to the modern Republican Party, but the direct ancestor of the Democratic Party), which was the only political party on the scene. One was either a Republican, or independent. The Federal Judiciary Act of 1789 had been passed by the First Congress to establish the district courts, but their jurisdiction was restricted. This was a pragmatic move on the part of Congress, a recognition that a nation just lately removed from a bloody war of rebellion against arbitrary power would look with great suspicion on the establishment of a large and powerful court system with the authority to trump their local and state courts. This was why the Justices of the Supremes rode the circuit to hear appeals. (See the text of the Judiciary Act here[/color].)

But imagine if you will, the power of a government in the grip of the only political party on the scene. Marshall and many of the other Justices feared, and with good reason, that the federal judiciary might be hijacked by the Republicans for precisely the reason you gave--the lack of a body of precedential law which could be used to support federal rulings in conflicts with the states. Mr. Marbury had been appointed a Justice of the Peace in the District of Columbia. His commission, however, was dated in the lame duck period of John Adam's administration, and Adams was by then an extremely unpopular president. He was also virulently hated by the Republicans. James Madison was Jefferson's Secretary of State, and, as the government was constituted then, it was his responsibility to deliver Mr. Marbury's commission to him. He refused to do so, as the Republicans had made it their business to repeal the Judiciary Act of 1800, in which Adams and the dying Federalist Party had attempted to pack the federal bench with new appointments. Since the constitution allows all judges to sits for life, se bene geserit (so long as well conducted--i.e., personal conduct), the Republicans didn't want to be saddled with judges who owed them nothing and would sit for life. Marbury sued him. The constitution is very clear on such an issue, the Supremes are the court of original jurisdiction in such a matter. The refusal by Madison to deliver the commission was a naked power grab, and it would have gutted the power of the federal bench.

In his opinion, Marshall noted that the constitution makes the Supreme Court the court of original jurisdiction in any action by an individual against the government. He noted that the law clearly required that the Secretary of State was obliged to deliver the commission or a copy thereof from the official record. He determined by logical legal argument that the remedy was a writ of mandamus (a direct legal order of a court) to Madison to deliver the commission. The final question to be considered was whether or not the Court had the authority to issue the writ. Marshall proceeded very carefully to construct the argument that a people would not establish a government by first writing a constitution were that constitution not to be the supreme law of the land. This was necessary to refute the government's claim that the Court did not have original jurisdiction. If you read Marshall's opinion (rather short, actually, by the standards of the Court), you can see how he constructed this argument. He did this to preserve the authority granted to Federal courts by the constitution, and to cut off the Republican's attempt to put Federal courts under their legislative thumb. Whether or not he foresaw the long-term results for jurisprudence in our nation is unclear; that he wished to preserve the independent authority of the judiciary is clear.

While it is true that no highter judicial authority exists than the Supremes, and that they therefore cannot be reversed--constitutional amendment trumps the court. Therefore, when the hateful racist, Justice Taney, found against the plaintiff in the Dred Scott case, that ruling stood on the basis of what was actually a correct constitutional interpretation, until the XIII amendment prohibited involutary servitude (slavery). When the Supremes threw out the income tax which Lincoln had established to finance the Federal war effort during the Civil War, it was not until XVI amendment was passed that the Feds could again tax personal income. Very often, however, the mechanism is for the Congress to go back to work, and revise the legislation which has been overturned by the Court, so that it will pass constitutional muster. This process keeps everyone on their toes, which i belive was the purpose intended by the "balance of powers" which was written into the constitution. As the se bene geserit provision is written into the constitution, it is conceivable that if the Court were to overturn legislation for obvious personal prejudice, unsupported and unsupportable by the constitution, one or more of them could be removed under this constitutional provision. So far, such a case has never arisen, and Justices who deliver opinions, whether they've "won" or "lost" their argument in a decision, are always careful to provide a constitutionally referential underpining, or a precedential reference based upon a constitutional interpretation.

The constitution grants to the Supreme Court appellate jurisdiction in specified cases, so that any plaintiff or defendant in a case before a Federal District or Appellate Court can appeal to the Supremes if the judgment goes against them. The Supremes can choose to hear a case, or make a very forceful statement about the value of the "losing" side's argument by refusing to review such a case, at which time the ruling of the last appellate jurisdiction takes on the force of legal precedence (although, of course, the Supremes can later decide to review a similar case, in order to "fine tune" the nature of the legal precedent--the recent ruling on the Texas sodomy case is an example, in that the Supremes had upheld a Georgia sodomy law in 1986, because the law prohibited sodomy by anyone, including married couples, whereas the Texas law specifically outlawed homosexual acts). Your assumption about precedent and the appeal to the Supremes is only partially correct, in that the party which appeals beyond the lower federal court is in essence saying that the interpretation was incorrect, and the Supremes can decide thereafter if they agree. As for the judge in Alabama grandstanding with his ten commandments monument, it is the estimation of legal scholars that the Surpremes will refuse to hear an appeal of the lower court's decision, which would be a heavy judicial slap in the face of the Alabama Chief Justice. It remains to be seen, of course, if this is true. They are not obliged to debate the topic, if they decide his argument has no merit, and refuse to review the decision. If they really want to hurt him, they will hear the case, and refute in detail his every argument--although that is unlikely.

The second paragraph of Section 2, Article III of the constitution defines the jurisdiction of the Supreme Court:

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.

So there are a variety of cases in which the Court has original jurisdiction. To the extent that appeals are always based upon a disputed interpretation of statute and/or precedent, yes, the Supremes are usually only consulted on matters touching upon such interpretation.

Damn it! I'm sorry folks and especially to you rosborne. I went to quote your previous post and hit the wrong button and ended up editing my comments into your post. Those comments in the last post listed under rosborne's name are mine.

fishin' I'm confused enought without your help. LOL c.i.