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Originally posted by Publius
It is topics like this that never cease to amaze me on so many levels. First of all, go read your constitution people. You will not find anywhere within the constitution where it specifically gives the Supreme Court to right of Judicial Review over any act of government, including Congress. This power was seized by a judicially active court under John Marshall in the case of Marbury v. Madison, 5 US 137 (1803).
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The Commerce Clause is what Congress uses to justify a vast majority of its legislation. The framers of the constitution did not intent for this to be the case, and more likley than not, they would be repulsed by this usage of the Commerce Clause. For better or worse, the strict constructionist view of the constitution is dead to the majority of the government.
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Since that time there has been much lively debate about judicial review, especially when it concerns acts of congress, and the pendulum has swung both ways on this one between active courts taking more power for themselves and Congress seeking to take back a power which it continues to maintain it ultimately holds. Congress does in fact hold ultimate power over the Courts because, if it so choose, it could dissolve all but the Supreme Court thereby insuring that the Court was too swamped with cases to play an active role.
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Congress could try that but it would cost them their entire treasury of legitimacy. Legitimacy is what allows Congress and the SCOTUS to "get away" with actions that border on un-constitution and judicial activism, respectivly. When that idea is added to the near fact that anyone voting for that bill would lose their senate seat, the likelyhood of this happening is nil. If your wondering, the loss of the senate seat would come from outrage of the legal profession and the amazing wealth that they contribute to Senator's campaigns. Since the court clog would essentially destroy the legal field, you can bet that a LOT of money would be going to people who would resciend the legislation.
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However, I have to come down on the side of the courts on this one. If it were not for the active courts to challenge the combined power of the legislative and executive branches, there would be little in the way of insure personal liberties against an overly aggressive combined effort of the two branches. This should be evident from the vast body of cases that the Supreme Court has chosen to hear. Pick as case, any case, and you will see that the Court chooses its battles for a specific reason, most usually because it wishes to address a particular problem that is facing society at large. The Court was established to be a neutral party between the people and the government and, I would argue, for the most part it has been successful in this role. Even if you don’t agree with a particular decision of the Court (9th circus anyone?) you have to admit that the topics that the Court chooses to address are ones that need to be openly debated within society and sometimes the Court needs to act as the cartelist for getting this important debate started.
As for this particular bill, I find it rather asinine. If the Congress doesn’t like a particular ruling of the Court it has within its power the ability to rewrite the legislation such that it will meet judicial scrutiny. This is the very first thing that anyone learns when taking any basic constitutional law class. The ultimate power resides with we the people. [/B]
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Have to agree with the last section of your post.