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It's ironic that the author quoted Federalist 78, which unequivocally states that it's the judiciary that is to determine the constitutionality of laws:
"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."
The author also cites the Dred Scott case to bolster his argument against the idea that the judiciary is to be the exclusive judge of constitutionality:
"We need look only to the Dred Scott case, which denied even free blacks citizenship and went on to proclaim black people inferior, to see the inherent flaw in this idea of judicial supremacy. Do you really accept that Dred Scott was legitimately the law of the land – even for one minute?"
Unfortunately, the decision was the law of the land, but thankfully only for a short time. It was overturned by the people by way of a constitutional amendment. The fact that the Court's decisions may be overturned, that the Court cannot enforce its own rulings but must rely on the executive department to do so, and that its appellate jurisdiction is within the control of Congress should make it clear that the notion of "judicial supremacy" is just a rhetorical bogeyman that has no real existence.
2 years ago on Who Decides Constitutionality?
The author fails to mention Federalist No. 78, which fully supports the concept of judicial review:
"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."
The Supreme Court cannot enforce its own decisions but must rely on the Executive Branch to do so. Its appellate jurisdiction can be limited by Congress. Its decisions can be overridden by constitutional amendments. So what's the problem?
2 years ago on Indiana State Senator: “I Will Decide What’s Constitutional, Not You”
"What about taxation? There are no limits placed on taxation for states so why can't states erect a special federal enforcement tax. They can say that when the federal government comes in and enforces a federal law that it consumes state resources such as public roads, electricity, utilities, and so forth. All of which puts wear and tear so why shouldn't federal employees be taxed when they enter the state to do their job? Why not use the income tax and say any federal employee who entered the state has to pay a 100% income tax for the year."
Such a tax would be unconstitutional per the 1819 Supreme Court case of McCulloch v. Maryland.
2 years ago on An important introduction to Nullification. http:/...
No, the Supreme Court ruled that the 14th Amendment didn't allow the states to maintain racially segregated schools. That's the whole point: who decides the constitutionality of laws -- the legislatures that pass them or the judiciary? Or, in the context of federal laws, the states or the judiciary?
2 years ago on The 2nd Amendment Preservation Act is Constitutional
The suggestion that Utah or any other state gets to determine the constitutionality of federal legislation is highly problematic. What if the author's argument had been adopted by a state seeking to maintain racially segregated schools in the 50's:
"Many believe that federal antisegregation laws are not made “in pursuance of” the Constitution, and are therefore unconstitutional. Therefore, state legislatures may interpose themselves between such unlawful mandates and their citizens to protect them from unconstitutional federal overreach."
I don't happen to agree with the Wickard case or its progeny, but I see bigger problems in allowing states to decide for themselve just which federal laws they will obey.
"The states also reserved the power to interpret the constitution, and to reject legislation not deemed to be pursuant to that document’s original intent."
Funny, my copy of the Constitution doesn't say this. Instead, it says that the judicial power of the United States is vested in the federal judiciary.
Of course, the States can always reject legislation they deem to be unconstitutional. It's called the amendment process.
2 years ago on Nullification and Racism
But the Constitution mentions only one thing that cannot be changed by an amendment -- no State may be deprived of equal suffrage in the Senate without its consent. By limiting the amendment power to this one issue, all else must be open to the amendment process.
2 years, 2 months ago on Repeal of the 2nd Amendment would not Abolish any Right
To say that the Bill of Rights didn't affirmatively create rights is incorrect. For example, where (aside from the 7th Amendment) is it written in stone that one has the right to a jury trial in a civil suit involving more than $20 ?
The author's failure to discuss the 14th Amendment as the basis for applying the Bill of Rights to the States is astonishing. It's as if he believes the States should be able to do anything they want to, as long as there's no explicit prohibition in the Constitution.
2 years, 2 months ago on Bill of Rights: The Founders' Vision is Dead and Gone
"The Founders certainly embraced the pro-freedom anti-tax logic, as they gave us a Constitution that barred the federal government from imposing any direct tax on any persons. That was part of the genius of the document. If the feds really needed cash, they’d need to tax the states."
No, that was the system under the failed Articles of Confederation. The Constitution, on the other hand, deliberately gave Congress a broad taxing power and specified exports as the only thing Congress couldn't tax. To suggest that the Constitution prohibits taxing individual people displays an incredible ignorance of the law.
2 years, 2 months ago on Is the GOP Leadership Ripping You Off Again?
The biggest difference between the 1913 tax on individuals and today's tax is the size of the personal exemption. In 1913 it was $3,000 for an individual and $4,000 for a married couple. That's $65,000-$80,000 in today's dollars. By failing to maintain this level of personal exemption, Congress has over the years increased the income tax hit tremendously. But they have the constitutional authority to do so.
2 years, 10 months ago on Freedom from the Income Tax
"Many people aren’t aware that America – conceived in liberty in 1776 – didn’t have a permanent income tax until 1913. In fact, the Constitution of the United States prohibited an income tax."
The Constitution has never prohibited an income tax. The nation's first was enacted in 1861, and its constitutionality was upheld by the Supreme Court in 1881.
The authority to impose an income tax comes from Article I, Section 8, Clause 1 of the Constitution, not the 16th Amendment; the sole purpose of the amendment was to overrule the Supreme Court's 1895 Pollock decision, in which it held that a tax on investment income was a direct tax on the underlying property and therefore had to be apportioned. Congress has always had the power to impose an income tax, and the amendment simply did away with the apportionment requirement with respect to certain types of income.
The oft-quoted "The income tax is, therefore, not a tax on income as such. It is an excise tax with respect to certain activities and privileges which is measured by the income they produce. The income is not the subject of the tax: it is the basis for determining the amount of the tax.” isn't quite accurate. The income tax is an excise on the receipt of income, regardless of the activity that generates the income. While there are statutory exemptions for some types of income, the tax doesn't simply reach "certain" activities or privileges -- it reaches all nonexempted income.
"In fact, from 1937-1995 the Supreme Court didn’t rule one single congressional act to be outside of their constitutional limits. "
Untrue. The Court did so at least 9 times during this period:
Bolling v. Sharpe (1954) 1862 statute establishing segregated schools in the District of Columbia
United States v. Brown (1965) Labor-Management Reporting and Disclosure Act of 1959 provision barring current or former communists from labor union office.
Shapiro v. Thompson (1969) District of Columbia law establishing one-year residency requirement for welfare benefits.
Oregon v. Mitchell (1970) Voting rights for eighteen-year-olds in state elections; overturned by Twenty-sixth Amendment.
Frontiero v. Richardson (1973) Gender-based benefits provision for members of armed forces; first of several sex discrimination rulings in benefits cases.
Buckley v. Valeo (1976) Federal Election Campaign Act of 1974 provisions limiting spending by political candidates and establishing Federal Election Commission with congressionally appointed members.
National League of Cities v. Usery (1976) Fair Labor Standards Act provisions extending wage and hour coverage to state and local government workers; overturned in 1985 (Garcia v. San Antonio Metropolitan Transit Authority).
Immigration and Naturalization Service v. Chadha (1983) Legislative veto provisions of Immigration and Nationality Act; ruling deemed to apply to similar provisions in as many as 200 statutes.
United States v. Eichman (1990) 1989 flag desecration statute.
2 years, 10 months ago on On Mandates, and Everything Else, Don't Count on the Courts!