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Friday, June 29, 2012

Unconstitutionality of Judicial Review

By Douglas V. Gibbs

Judicial Review is the power of the federal courts to determine if a law is Constitutional or not. This power was seized by the courts in the 1803 Marbury v. Madison case. The federal courts were not granted this authority by the States, or the people. It is not a constitutional authority.

The Constitution established the federal government to be a limited one, with its authorities expressly enumerated. Any authority not granted to the federal government on the pages of the U.S. Constitution, or prohibited to the States, is a State authority.

The Supreme Court's ability through judicial review to determine if a law is constitutional or not is the power to decide if the federal government has an authority. Since the Supreme Court is a part of the federal government, anytime the High Court determines the constitutionality of a federal law, it is literally a case of the federal government deciding for itself its own authorities.

The judicial branch was not established to be a check against Congress. The two Houses of Congress were originally designed to be checks against each other. The House of Representatives was the voice of the people, the Senate was the voice of the States, and they checked each other, while working together to check the executive and judicial branches. As for the party or parties responsible for determining the constitutionality of federal law, that task falls upon the States, and the people. As the final arbiters of the Constitution, the States have the authority to ignore, or nullify, unconstitutional laws. If the law is unconstitutional, then it is illegal, and therefore the States cannot be compelled to follow those laws.

The U.S. Constitution is written in a manner that grants express powers to the federal government. If a need for an issue to be taken care of by the federal government arises that is not authorized by the Constitution, then the appropriate procedure would be for the federal government to request that authority by proposing an amendment, and then the States would choose whether or not to grant that authority by whether or not they ratify the amendment. That makes sense when one considers that the creation of the federal government by the Constitution was orchestrated by the States, and the States giving the federal government a few of their powers for the purpose of protecting, preserving, and promoting the union. Prior to the Constitutional Convention in 1787, the States held all powers - which means the States have original authority over all governmental powers.

The very idea that the federal courts even have the authority of judicial review where the courts can strike down laws based on its interpretation on whether or not the law is constitutional is ridiculous. The very idea of judicial review is at complete odds with the idea of limiting principles as provided by the U.S. Constitution. The courts may have an opinion on the matter of the constitutionality of a law, but they hold no legislative power. On the federal level only the Congress, as per Article I, Section 1, has legislative powers, which is the ability to create law, modify law, repeal law, et cetera. Therefore, the courts have no authority to strike down a federal law. In the case of a State law, or state amendment, that was passed under the authority of the State as per the 10th Amendment, the federal courts not only have no authority to strike down the State law, but they are not even supposed to hear the case in the first place.

The liberal left has continuously shown disdain for the Law of the Land, and often try to use the courts to usurp the Constitution.

-- Political Pistachio Conservative News and Commentary

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