Political Pistachio

Blog Home of the Writer and AM and FM Radio Host, Douglas V. Gibbs.
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Monday, June 24, 2013

Supreme Court: You have no right to remain silent - Evidence of the Damage Caused by Judicial Review

By Douglas V. Gibbs

Our court system is out of control, and is being used, along with the executive branch's seizure of power, to erode our fundamental rights.

The latest headline that the leftist media is refusing to report is about a recent Supreme Court decision:

Supreme Court Bombshell: No Right to Remain Silent

The Supreme Court handed down a decision on June 17 that has been ignored by most media outlets, despite its devastating effect on one of the most fundamental rights protected by the Constitution.

In a 5-4 ruling, the justices ruled that a person no longer has the right to remain silent as guaranteed by the Fifth Amendment. In relevant part, the Fifth Amendment mandates that no one “shall be compelled in any criminal case to be a witness against himself.”

Thanks to the Supreme Court’s decision in Salinas v. Texas, that part of the Bill of Rights has been excised — and has joined the list of so many other fundamental liberties that now lay on the scrap heap of history.

My Response?

This is why the founders never intended for judicial review to be a judicial power. . . 

Read the following excerpt from my Constitution Class handouts regarding Judicial Review: 

Judicial Review

Federal judges maintained that the federal courts should have the power of judicial review, or the power to determine the constitutionality of laws. In response to the judicial urgings for the powers to judge the extent of the federal government's powers, in the Kentucky and Virginia Resolutions of 1798, Thomas Jefferson and James Madison warned us that giving the federal government through its courts the power of judicial review would be a power that would continue to grow, regardless of elections, putting at risk the all important separation of powers, and other much-touted limits on power. The final arbiters of the Constitution are not the courts, argued these Founding Fathers who were believers in the limiting principles of the U.S. Constitution. The power of the federal government must be checked by state governments, and the people. The States and the People are the enforcers and protectors of the U.S. Constitution.

In today’s society it is commonly accepted that one of the roles of the federal court system is to interpret the Constitution, and issue rulings determining the constitutionality of laws. The Constitution does not grant this authority. The power of Judicial Review was given to the courts by themselves.

During John Adams' final moments in the presidency, he appointed a whole host of "midnight judges" (appointing 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801) in the hopes of retaining federalist control of the courts as Jefferson's Democratic-Republicans gained control of the Congress, and Jefferson himself accepted the presidency.

While Adams was still in office, most of the commissions for these newly appointed judges were delivered. However, unable to deliver all of them before Adams' term expired, some of them were left to be delivered by the incoming Secretary of State, James Madison. Jefferson ordered them not to be delivered, and without the commissions delivered, the remaining new appointees were unable to assume the offices and duties to which they had been appointed to by Adams. In Jefferson's opinion, the undelivered commissions were void.

One of those judges was a man named William Marbury. He sued, and the case worked its way up to the Supreme Court. After all of the dust settled, on February 24, 1803, the Court rendered a unanimous (4-0) decision that Marbury had the right to his commission, but the court did not have the power to force Madison to deliver the commission. Chief Justice Marshall wrote the opinion of the court, and in that opinion he wrote that the federal court system has the power of judicial review. Rather than simply applying the law to the cases, Marshall had decided based on case law that the courts have the authority to determine the validity of the law as well. This opinion, however, went against all of the limitations placed on the courts by the Constitution.

One of the most obvious fundamental principles of the Constitution is the limitations it places on the federal government. The Constitution is designed not to tell the federal government what it can't do, but to offer enumerated powers to which the authorities of the federal government are limited to. The powers are granted by the States, and any additional authorities must also be approved by the States. The process by which this can be accomplished is through the amendment process. Remember, it takes 3/4 of the States to ratify an amendment.

The power of Judicial Review, or the authority to determine if laws are constitutional, was not granted to the courts by the States in the Constitution. The courts took that power upon themselves through Justice Marshall's opinion of Marbury v. Madison.

The federal courts are a part of the federal government. The Constitution was designed to limit the authorities of the federal government by granting only a limited number of powers. Judicial Review enables the federal government, through the courts, to determine if the laws that the federal government made are constitutional. In other words, the federal government, through Judicial Review, can determine for itself what its own authorities are.

The idea that the federal court system has the authority to interpret the Constitution, and can decide if a law is constitutional or not, is unconstitutional, and is simply an attempt by those that believe in big government to gain power, and work towards a more centralized big federal governmental system.

-- Political Pistachio Conservative News and Commentary

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