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View Diary: Thank You for Helping To Stop Alito (497 comments)

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  •  Federalist #78 (4.00)
    http://mydd.com/...

    The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

    Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

    There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

    If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

    Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

    weather forecast

    The palaces of kings are built upon the ruins of the bowers of paradise. - Paine

    by Cedwyn on Fri Jan 27, 2006 at 07:07:30 PM PST

    [ Parent ]

    •  Filibuster, How To (only you can make it happen!): (none)
      First : Call the three Democrats (Mary Landrieu, Ken Salazar, and Dianne Feinstein) who oppose Alito but also said they oppose a filibuster. We must persuade them that a vote against Alito is meaningless if they don't support a filibuster. Senator Salazar (D-CO) 202-224-5852 Sen. Mary Landrieu (D-LA) 202-224-5824 Sen. Dianne Feinstein (D-CA) 202-224-3841

      Second : Call your own Democratic Senator: 888-355-3588 or 888-818-6641. If you can't get through, look up the Senator's District Office number in your phone book or here: http://capwiz.com/...

      Third : Unbelievably, three Democrats (Ben Nelson, Tim Johnson and Robert Byrd) support Alito! Tell them to either support filibuster or at least "don't get in the way." Sen. Ben Nelson (D-NE) 202-224-6551 Sen. Robert Byrd (D-WV) 202-224-3954 Sen. Tim Johnson (D-SD) 202-224-5842
      888-355-3588 or 888-818-6641. If you can't get through, look up the Senator's District Office number in your phone book or here: http://capwiz.com/...

      Fourth: Call the "Red State" Democrats: (Message same as above -- "No" is meaningless) Tom Carper (DE)
      Kent Conrad (ND)
      Byron Dorgan (ND)
      Blanche Lincoln (AR) Mark Pryor (AR)

      Fifth : Call these "Blue State" and pro-choice Republicans: (Message: A "Unitary Executive" is dangerous to balance of powers--please do not get in the way of a filibuster.) Lincoln Chafee (RI)
      Susan Collins (ME)
      Lisa Murkowsky (AK)
      Bob Smith (OR)
      Olympia Snowe (ME)
      Ted Stevens (AK)

      For extra credit, call all of the 2008 Presidential candidates who are sitting Senators--Evan Bayh, Joe Biden, Hillary Clinton, Russ Feingold, and John Kerry--and tell them to either LEAD THE FILIBUSTER or KISS YOUR SUPPORT GOODBYE. 888-355-3588 or 888-818-6641. If you can't get through, look up the Senator's District Office number in your phone book or here: http://capwiz.com/...

      You can also send that message to the Democratic Senatorial Campaign Committee (202-224-2447) and the Democratic National Committee (202-863-8000).
      Polls and public opinion are another way to apply pressure -- get word out about why Alito needs to be filibustered:

      Write a letter to the editor of your local newspaper. (Click here)

      People for the American Way has collected nearly 65,000 signatures to send to the Senate, please add yours: Save the Court Petition

      John Kerry has endorsed this anti-Alito petition, signers' names will be read into the Congressional Record:http://www.johnkerry.com/...

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