Comment from Jay_C
Time October 7, 2009 at 3:34 pm PDT

I don’t know if “unconstitutional” is the word I would use, but with judicial review, judges can declare laws unconstitutional – (judicial review gives judges the power to adopt amendments the people, through their representatives, have rejected. “Constitutional law,” the body of decisions of American judges implementing the Constitution, not only does not reflect the people’s wishes in adopting constitutional language, but we have seen that at times flatly contradicts it, so to me, it is Judicial Review vs. Constitutional Government, (Apples vs. Oranges.) It is a legal way around the Constitution. To me, the problem there is there have always been ways to change the Constitution, and that is through the “slow”, amendment process, we don’t like slow anymore.
Judicial review is a way; it seems, to “fast track” decisions that at times shouldn’t be fast tracked. This begs the question, what is right / wrong with the
Original way and what is right / wrong with Judicial review? Which better serves the people and their associated views in this Constitutional Republic?

Comment from Allen S
Time October 7, 2009 at 4:21 pm PDT

Even if we were guaranteed in perpetuity that every Justice would abide by whatever you take the right standard of judicial purity to be, the question would still arise: what body gets to *decide* whether a law or official action is constitutional? That is what Madison v. Marbury settled. The President doesn’t get to decide (after all, the President’s own actions might be unconstitutional) nor does Congress (the Constitution would be a Constitution in name only if legislative whim settled constitutional questions.) What Madison v. Marbury settled is that the Court is the branch of government that gets to decide constitutional questions.

There are lots of interesting questions about what good judicial review should be like, and lots of interesting questions about when and in which cases the court has fallen short. But of the three branches of government, it’s hard to see what case could be made for saying that some other branch than the Court should be charged with deciding Constitutional cases.

Comment from Michael Merritt
Time October 8, 2009 at 1:03 am PDT

@Jay_C

It is a legal way around the Constitution.

Forgive me if I’m wrong, but you appear to be making the same mistake the painter does, by conflating judicial review with judicial activism. The power of judicial review is that the Supreme Court can decide whether or not a law is unconstitutional, but it does not necessarily mean that the power will be used to enact social change.

Justices like Scalia, Roberts, Alito, etc. are those who are often most celebrated by conservatives as justices who don’t do that (though I have seen arguments that all of them have ruled favorably when it comes to executive power which, in my opinion, is just another form of judicial activism).

However, if I take your argument at face value, what you’re saying is that there is no recourse for legislation or parts of legislation that are blatantly unconstitutional. Surely as a conservative you would want the Court to toss out parts of Obama’s economic or healthcare plans that are unconstitutional?

Surely as a libertarian-leaning conservative (as you have demonstrated in previous comments), you want scrubbed the parts of the Patriot Act or other national security legislation that are unconstitutional?

I mean, what other recourse would there be when the country finds itself with two of the governmental branches held by one party? You wouldn’t be able to stop them from passing whatever legislation they wanted.

Judicial review might invite the specter of judicial activists, but just because it’s there doesn’t mean that all actions taken under its purview are to enact laws that were never passed by the legislature. It is much more than that, and frankly, I wouldn’t have it any other way. I see it as a necessary check on Congress and the president.

Comment from Interested
Time October 8, 2009 at 5:01 am PDT

The Doctrine by itself is fine and good. It is the method upon which the review is performed that is too fluid for such a critical task, and that is what leads to Judicial Activism

Comment from Michael Merritt
Time October 8, 2009 at 5:28 am PDT

The Doctrine by itself is fine and good. It is the method upon which the review is performed that is too fluid for such a critical task, and that is what leads to Judicial Activism.

Now this is the argument I’ve been looking for. We can debate day and night how judicial review is used by different justices. But to dismiss it entirely, as McNaughton appears to do, isn’t the right way to go about it.

Comment from cLive ;-)
Time October 8, 2009 at 6:38 pm PDT

Mouse over some of the other areas for “insights”: the flag – “50 stars – some brighter than others”, the baby of the mother’s lap – “handicapped child”. WTF?

Comment from Jay_C
Time October 8, 2009 at 8:21 pm PDT

I am saying that judicial review can usurp the power of the elected branches of government. It is true though, that the same exists in times like these, when Congress is overrun with one particular party, that can basically just “vote their way” to what they want. But which has the potential to do more damage? A Congressperson that can be voted out of office if they don’t do the bidding of their constituency? Or a Judge that may be there for life, that may turn take advantage of judicial review, and turn it into Activism?

So actually, let me rephrase what I wrote above… To me, it is:
Judicial Review vs. Constitutional Government vs. Congressional “ling, cheating, stealing and Bullying”

or in other words, (in order) Apples, Oranges, and rotten Pears… I’ll take Oranges when I can

Don’t get me wrong, I get you point… and it makes sense to me in a best case / reasonable case scenario, but what about worse case… I guess I’m just an old fashioned Plan for the worst, hope for the best kind of guy…

Comment from Jay_C
Time October 8, 2009 at 8:23 pm PDT

sorry, I also meant to say… these are not “reasonable times”, nor “best case times”.. in my opinion..

Comment from Michael Merritt
Time October 9, 2009 at 8:36 am PDT

@Jay_C

I am saying that judicial review can usurp the power of the elected branches of government.

Just because it can doesn’t mean it always will. For the most part, judicial review has been used for non-nefarious purposes. And it has also done wonders for protecting the 1st Amendment, and more recently, the 2nd.

It is true though, that the same exists in times like these, when Congress is overrun with one particular party, that can basically just “vote their way” to what they want. But which has the potential to do more damage? A Congressperson that can be voted out of office if they don’t do the bidding of their constituency? Or a Judge that may be there for life, that may turn take advantage of judicial review, and turn it into Activism?

There is reason to be concerned about who we put in to the robes, which is why they are vetted by Congress, fairly thoroughly. I would also point out that in recent years the justices who have most changed their judicial philosophies have been appointed by Republicans. So for all their worrying about appointing activist judges, the Republicans’ track record for appointing ones who stick to a conservative philosophy is against them. We’ll see how the recent batch does over the next decade or so; maybe their luck will finally turn around.

As for Congress, yeah, you can vote the people out, but it doesn’t mean that reversing legislation is simple. As they say, it’s very difficult to dismantle bureaucracy one it’s been created. Case in point: Social Security reform. I would think that this has to be one of the reasons Republicans are fighting so hard against the public option; because, one it is law, it will be near impossible to get rid of.

I guess I’m just an old fashioned Plan for the worst, hope for the best kind of guy…

I am also sometimes a “this could be what happens in the future” kind of guy, particularly when it comes to passing horrendous “national security” legislation. But despite a relative minority of high profile cases, judicial review’s reputation as a good tool seems to me to be well established.

Comment from Jay
Time October 9, 2009 at 9:24 pm PDT

A web cartoonist put up a copy of the painting, changing the “zoom” comments on it:
http://www.shortpacked.com/McNaughton%20Fine%20Art.htm

A lot of them are random humor but many of them raise fine points. For example, for Madison vs. Marbury he put:
“This horrible piece of paper allowed activist judges free reign to declare just about anything unconstitutional! Slavery, discrimination, you name it! What fools we were.”

For a good number of presidents, he also put up actual quotes from or about them, decrying the church, religion or God.
Franklin: “Lighthouses are more helpful than churches.”
Washington: “…on the days when the sacrament of the Lord’s Supper was to be administered, Washington’s custom was to arise just before the ceremony commenced, and walk out of the church.”
Adams: “God is an essence that we know nothing of. Until this awful blasphemy is got rid of, there never will be any liberal science in the world.”
Jefferson: “Question with boldness even the existence of a God…”
And so on…

Just goes to show you the sheer extreme right-wing bias the painter put into that piece.

Comment from Steve
Time October 10, 2009 at 10:10 am PDT

http://www.shortpacked.com/McNaughton%20Fine%20Art.htm

I believe this is the proper criticism.

Comment from Michael Merritt
Time October 10, 2009 at 5:21 pm PDT

I did like the rebuttal painting, Jay, but it does fall short in some places. He likes to point out that many of the figures portrayed were Unitarians. I’m not sure if he’s conflating them with the modern day Unitarian-Universalist church, but if so that’s not right. Unitarianism is still Christianity; they just have differing views about the relationship of Jesus Christ to God, much in the same way that Mormons have a differing view of Christianity.

No doubt that many contemporaries of those figures might have considered them not proper Christians, and it is perhaps this contrarian view of Christianity that also gave them the mind to be revolutionaries, but to act as if they were not Christians when they actually were is just trying to be revisionist.

As for Thomas Jefferson, the rebuttalist describes him as “basically an atheist,” which is also a misrepresentation. Jefferson had a belief in God, and his editing of the Bible was to tear out the parts where Jesus performed miracles. He still liked the guy as a teacher of morals. Jefferson was still a believer, albeit one opposed to traditional Christian doctrine, even if he is almost quite literally taken as the patron saint of atheists by that group.

As for Robert Livingston, he was recalled by the New York Assembly, because they were against the Continental Congress’ intentions, but I see no evidence that Livingston himself was against the Declaration. He helped draft it!

As for Fisher Ames, [citation needed].

Comment from Ron
Time October 12, 2009 at 9:56 pm PDT

What we need, in order for “We the People” to be the final arbiters of American Law, is a Constitutional amendment which gives the Supreme Court power of judicial review, i.e.: the power to strike down laws as un-Constitutional; and at the same time the amendment should give Congress 2/3 override power over all Supreme Court decisions just as Congress has 2/3 override power over Presidential vetoes.

“You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power are the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves….When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves….” Thomas Jefferson

Comment from Ron
Time October 12, 2009 at 10:09 pm PDT

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” Abraham Lincoln

We need the ability to overthrow Supreme Court decisions which pervert the Constitution – 2/3 override power for Congress!

Comment from Andrew
Time October 14, 2009 at 10:15 pm PDT

Let it be known that most of the founding fathers were Dieist. They believed in an unassociated power. The Bible had no function in the formation of the Constitution. I will say that it is a beautiful painting but the portrayal of Liberals, Democrats, Moderates and any person who anti-conservative is appalling. And as for “The Liberal Reporter” FOX brags that it has the most viewers in the country. FOX is constantly spewing anti-moderate, and anti-democratic rhetoric.

Comment from Jay_C
Time October 26, 2009 at 7:06 pm PDT

@Jay

My comments inline…starting with ***
I’m not sure how these quotes can be construed as ”decrying the church religion or God”???

For a good number of presidents, he also put up actual quotes from or about them, decrying the church, religion or God.
Franklin: “Lighthouses are more helpful than churches.”

*** Franklin was a non-dogmatic believer, who felt that organized religion was necessary to keep men good to their fellow men. Though he rarely attended church himself, his faith in God was an important factor in his support for the American Revolution.***

Washington: “…on the days when the sacrament of the Lord’s Supper was to be administered, Washington’s custom was to arise just before the ceremony commenced, and walk out of the church.”

*** Washington regularly attended Sunday services and purchased a family pew at several churches. Rev. Lee Massey, his pastor in Mt Vernon, wrote: “I never knew so constant an attendant in church as Washington” Whether Washington partook of communion is a question of tremendous controversy.***

Adams: “God is an essence that we know nothing of. Until this awful blasphemy is got rid of, there never will be any liberal science in the world.”

*** John Adams believed in the essential goodness of the creation, but did not believe in the divinity of Christ or that God intervened in the affairs of individuals. He also believed that regular church service was beneficial to man’s moral sense.***

Jefferson: “Question with boldness even the existence of a God…”

***you left out a bunch here…” “”Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blind-folded fear.”

***Furthermore… The religious views of Thomas Jefferson diverged widely from the orthodox Christianity of his day, however, throughout his life Jefferson was intensely interested in theology, biblical study, and morality. He is most closely connected with the Episcopal Church, the religious philosophy of Deism, and Unitarianism***

Comment from Jay_C
Time October 26, 2009 at 7:16 pm PDT

I’m not denying that they were not hard and fast on any one particular religion, and even, yes, had Deist beliefs as well, but like myself, certainly do not decry church religion or God… to the contrary, they all saw many virtues to church, religion, and God, and thus incorperated many of those virtues into the founding of this Country.

In fact, to stretch it and even say that they were solely deists, or, in other words that they reject *most* supernatural events (prophecy, miracles, etc.) and tend to assert that God (or “The Supreme Architect”) has a plan for the universe that is not altered either by God intervening in the affairs of human life or by suspending the natural laws of the universe”

Goes against your argument that their words indicate they “decry God”…