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View Diary: Democrats Need a Pledge to the Middle Class (21 comments)

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  •  the exceptions clause, (0+ / 0-)

    otherwise you make a political issue out of the Court's political doctrines as FDR did with the four horsemen. On the ultimate question of whether we are a constitutional democracy, Congress could employ the Constitutional remedy at Art. 3, sec.2. Judicial supremacists should not be opposed to use of specified congressional powers.

    •  Ah, you are quoting musings in that law review (0+ / 0-)


      Let me give you a hint (as a lawyer, and as someone who has worked on a law review):  Musings in a law review are simply someone putting together thoughts to make some kind of theoretical argument. Often, they have no basis in reality whatsoever.  

      If you think that Congress is now, after 209 years, going to somehow pass legislation purporting to "overturn" Marbury v. Madison (the decision that is one of the foundations of the concept of separation of powers) and deprive the Supreme Court of judicial review, I think you have no basis in reality, either.  I seriously doubt there's anyone in Congress who would even think about introducing such legislation.  Not even FDR proposed legislation that would purportedly deprive the SCOTUS of the power of judicial review.  Not to mention that any such legislation would, itself, go the SCOTUS and the SCOTUS, relying on Marbury, would declare it unconstitutional.

      You have to stop  reading law review articles and assuming that they necessarily translate into reality.  

      •  follow Marbury, (0+ / 0-)

        Corruption of elections as the Montana case shows is a political question and a congressional power at art 1, sec 4. How you end an era of constitutional crisis such as Jim Crow is with a movement that determines legislation. One part of the legislation would address enforcement by Congress of its political question boundary. This might not be required given the outcome of voter mobilization and solutions in unfolding events.

        •  No, the way you overturn a SCOTUS decision that (1+ / 0-)
          Recommended by:

          is based on the First Amendment is to amend the Constitution (as happened with the 16th Amendment).  Or you convince a later SCOTUS that its earlier decision was constitutionally incorrect (as happened with Brown v. Board of Education).  Those are the two ways.  

          It's beyond ridiculous at this point, 200 years after Marbury v. Madison, to think that Congress is simply going to (1) pass legislation that mirrors what a SCOTUS has already said is unconstitutional; (2) include in that legislation a statement that the SCOTUS can't review that legislation; and (3) think that the SCOTUS won't declare that language itself to be unconstitutional under Marbury v. Madison.  

          In order for your approach to succeed, the SCOTUS would have to overturn its decision in Marbury v. Madison and deprive itself of the power of judicial review.  Because of Marbury, Congress can't just declare there is no review over a piece of legislation and have it end there.  Because Marbury has been the law for 200 years, that very statement would have its constitutionality tested at the SCOTUS.  

          •  congress went after the flag (0+ / 0-)

            burning cases. Overturning CU is not constitutionally impermissible, neither is the use of the exceptions clause, which  has and can be applied. It's a political question whether it ought to be. Otherwise you argue that the Court is exempted from Madisonian checks and balances. There are.many ways to go as with an amendment but eventually it comes down to legislation and Congress has the powers to protect itself against Court veto. Marbury does not strip congressional powers. This big stick may never be used, but the legislation doesn't have to wait 100 years as with application of the14th Amendment.

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