although I have to say I think Marshall's comment about Tricky Dick was made with tongue firmly in cheek.

I love your adherence to the Constitution, Thom . . . but I think this argument has been lost forever. With the federal government just outright spying on us and murdering us without a trial, judicial review is the least of our problems. And, getting Congress, the directly elected branch, to do the bidding of "the people" is now nearly impossible, too.

Sigh.

Difficult. But doable. I think Americans like to be apolitical until election time. Most never worry about these matters. Unless they are personally affected. The more people who are affected. The more interest. Give the people a chance. One problem we face is what I call the "Good Cop, Bad Cop" limitation. Which media pundit is your friend and which is your enemy? All the while never presenting the chance that there could be another possible solution to a problem.
And now comes the question. TSA, DHS, ACA, Patriot Act? Are you comfortable with them depending on the political party running the show? It started with the Crossfire show on CNN. The presentation is that there are only two sides to a story and one must be right.....Nahhhh!

He's made this argument several times before, why is it just now that some DUers need to be spanked?

and quite possibly a re-naming of one of the months out of the year.

Thomember?

One of the hardest working, decent souls our society
(what's left of it) can have fighting for us all!

The SC may not have the power according to the constitution but they are currently untouchable and act like kings doing whatever they like without accountability. They laugh at any who dare question anything they do. Just look at Thomas whose wife blatantly sells influence...or the Bush v Gore decision. Broccoli brain Scalia doesn't even bother to read what comes before the court anymore having already made his decision at the brfst. table.

We may not want a country like this but it's the country we have. Dysfunctional undemocratic senate with a filibuster controlled majority being dominated by a minority and a SC who overrules congress and we the people while remaining untouchable. Our only hope is throwing all the republicans out of office in 2012 and unpacking the conservative judiciary.

in Marbury vs. Madison ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=5&page=137 summary at http://www.lawnix.com/cases/marbury-madison.html )
one of the historic cases every law student should know of.

Please see the original DU thread on this issue and the comments by DU member stevenleser ( http://www.democraticunderground.com/101718710#post11 ).

For more background on the President and the Court see http://en.wikipedia.org/wiki/Worcester_v._Georgia
and a recent article discussing the issue stemming from Newt Gingrich's comments:
http://www.huffingtonpost.com/lyle-denniston/gingrich-supreme-court_b_1017418.html

Have been out of town and away from DU much of last few days, and I guess I'm glad I didn't see this originally. I appreciate your summary, and hope Hartmann might!

You'd make a great professor!

But, no need to disrespect Wikipedia. It's as reliable as any encyclopedia, even more reliable (since it's constantly updated/edited, by the people btw), imho. Here's a link to the very part of Article 3 Section 2 that you quoted from:

https://en.wikipedia.org/wiki/Article_3_%28U.S._Constitution%29#Section_2:_Judicial_power.2C_jurisdiction.2C_and_trial_by_jury

also paid conservative bloggers whose job is to give corporate conservative slants to Wikipedia and others. Its part of the well financed disinformation campaign by the GOP and their corporate, uber rich cronies.

But (just like with open source software), with so many eyes looking at it, it'll be corrected quickly.

There's a dispute over whether or not Congress is empowered by the constitution to take a particular action. How could that be anything but a case "in Law and Equity, arising under this Constitution" ? How is it not a "Controvers(y) to which the United States (is) a Party" ?

The real situation is much simpler. All three branches of government not only have the power but the responsibility to uphold the Constitution. If, for instance, Congress were to pass a law removing the right to free speech over the President's veto, he would still be within his powers to refuse to enforce it and the courts would be empowered to nullify it.

You forget also that "the judicial power" is not a term that sprang into existence with the signing of the Constitution. The framers had an existing understanding of what powers were "executive", legislative" and "judicial" even when they had not been held by different branches. But the judicial power most certainly included the power to void legislation "repugnant to the constitution". The genius of the framers wasn't to get rid of that power, but to divorce it from the executive and vest it in an independent judiciary.

From Federalist 78 -

especially Scalia and his sock puppet, Thomas.

The right-wing ideologues on the Supreme Court, IMO, have made themselves dictators for life, flouting the law and the Constitution in the process. Their wholesale corruption, on display for the entire world to see, has made a mockery of justice and the Supreme Court into the legal department of banksters and corporate malefactors.

What the Supreme Court, with their numerous and controversial 5-4 specials, seems to be doing is usurping the powers of the legislative and executive branches by nullifying progressive legislation by declaring it unconstitutional, for purely political reasons. These same rogues in robes are the first ones to denounce moderate and liberal judges as "judicial activists" when they uphold laws they don't like. The most egregious 5-4 specials have been Bush v. Gore, which installed Bush as "President"; and the most recent one, the Citizens United decision, which gave Big Money a license to bribe politicans and candidates for public office.

The only reason Scalia and/or Thomas haven't been impeached is that repukes, with their wholesale tribal mentality, have been protecting them and their power from the will of the people.

And Wong Sun. And scores of other cases upholding, creating, reinforcing and preserving the rights of men and women. Don't be quick to toss that for a Congress bought and sold. Be careful what you wish for.

Hartmann really needs to think before he talks; he has just reminded me why he's my least favorite "progressive."

We could, I suppose do something about it through the thing called elections. Gotta keep fighting!

any change for the better in this country before we're all just flushed down the drain.

As far as elections -- I think it was Phil Berrigan who said, "If elections made any difference, they'd be illegal".

I know..."keep fighting". I try, honestly. But there are a couple of things that I've experienced recently that convince me that those in power are bone-stupid and too incompetent to do the jobs they're assigned. <sigh>

I always learn something or at least see it in a different light...
And that is valuable to all of us.
K&R

I blame our education system.

I've never not taught this, and it's hard to imagine any survey course in government or civics that did not. I distinctly remember learning this in 9th grade myself.

... but even I comprehended the vast expansion of SCOTUS power in the early 19th century, contemporaneous with and associated with Marbury v. Madison.

It was made plain to me, and I detested history in grade school (K-12). I needed an associative framework to hang "teachings' upon... a framework I could only build by experience. It was always presented in ways that required rote memorization (GIGO) and that appalled me. (I was a math & science nerd.)

strong value of the directly elected legislature. At the same time, as stated in the Federalist Papers in various locations including that cited in reply to the OP here, the Framers pushing the new Constitution repeatedly assured their skeptics that their fear of any one branch of government overtaking the other would be prevented through the system of checks and balances. It was entirely their intent to frame up the Constitution in such a manner as to ensure that we did in fact have co-equal branches with an effective system of checks and balances. It states in the federalist papers that, indeed, the populace is the first check on government power. But beyond that, we would have this careful system of checks and balances to prevent any one branch from acquiring excessive power. As the constiutional scholars and experts, it is certainly the intended role of the court to be the arbiter of the Constitution and function to interpret its intent and decide if laws or parts of laws are constitutional. Again, the role of the court is to interpret and apply the Constitution. It can not place a check and balance upon the power of the legislative branch without the authority to overturn laws or parts of laws they deem in conflict with the Constitution. Without this authority, when would "separate but equal" in regard to school segregation have finally been struck down? Without this authority, when would laws outlawing abortion rights have been struck down? This function is essential if checks and balances and co-equality are going to really mean anything. And how do you place the court in check? You refine the laws or parts of laws it strikes down. You also elect Presidents and Senators who will appoint and confirm the best justices.

It is also true that the Supreme Court was not intended to overturn laws lightly, and that the Legislative and Executive branches, who are much more directly accountable to the people, need to be extended considerable deference in their lawmaking authority. This is one way that the SCOTUS of late has strayed. They are striking down laws and parts of laws for political and ideological reasons entirely, and not showing enough due deference to the other branches.

Many constitutional scholars would disagree with Hartman.

Article III Section 2 of the US Constitution reads...

could overturn legislation that 60 million plus people voted for, does not appear constitutional to me.

I think Hartmann's assertion is valid. The SCOTUS is supposed to interpret laws, not make or overturn them.

They warned against the masses in fact. That is the reason we have a republic (government by representative) and not a true democracy (government by vote). Frankly if you weren't a landowning, White, male, adult who could read* and afford to pay a poll tax*, you couldn't even vote for someone who would vote on the laws that you would follow. Incidentally, that left about 10-15% of the population even eligible to vote, never mind that voting isn't compulsory.

*These two conditions were not universal, but did occur throughout US history.

did not care. I believe that others did, however.

I would imagine if we had them at our disposal, each may have differing opinions on what authority is granted the court, in the case in question?

in fashion to the way Senators were originally chosen per the Constitution before the 17th amendment.

by the Senate who, as you point out, were not themselves directly elected. Intentionally remote from the demos.

Though, I am aware of the appointment/confirmation process, thanks.

and their vote is split down party lines.

http://en.wikipedia.org/wiki/Supreme_Court_of_the_United_States

"During World War II, the Court continued to favor government power, upholding the internment of Japanese citizens."

Yet, today, some are seemingly appalled about a tax penalty, for not buying health insurance?

Party lines or no, the courts do serve as the final arbiters of the constitutionality of laws.

should they?

They are a check and balance to the power of the congress and the presidency.

in a consistent, reasonable fashion.

It's a pendulum. Sometimes it swings right, sometimes it swings left, but it goes back and forth across the same center.

Should we send this to Hartmann???

I'm out of town, spending only a little bit of time on DU this week, visiting 98 year-old Dad, so if you don't mind, I'd suggest you send it to Hartmann. If you're unable, let me know and I'll do it when I return home. Thanks

I don't follow Hartmann, and hope he's amenable to becoming a better informed pundit.
In particular, your point about the Government and Constitution being COMPLICATED, a point an 'esteemed' pundit would, I'd have thought understood, should be emphasized.

E

Since he tried "calling you out" by name in the video. Have at him!

Pain in the neck computer issues! Hope things are OK here. Whats new???

and here in Iowa, haven't seen a paper.

that gave Citizens United, Dow Chemical v. United States, and other cases that established corporate personhood. Not to mention other amenities that corporations have (for example corporations like Wal-Mart can't be sued under a class action lawsuit for discrimination of its workers if they work in separate departments).

No place in the Constitution does it say anything about corporations. No where in the benchmark case (Marbury v Madison) is this mentioned either.

Saying that judicial review caused Citizens United (et. al.) is like saying a tea kettle caused 9-11 by the very fact that it did not stop it. Judicial review has been a FUNDAMENTAL part of the judicial process since 1803. In over 200 YEARS Citizens United did not happen.

and the billionaires running for office that they don't exist. I don't know about you but those things are as real as they can get. If what the court did was so illegal then why have they been getting away with it since Marbury v. Madison? Sounds to me like they set a new precedent that has stood the test of time. And its being used against us with precision.

Marbury v Madison existed for over 200 years before this came up.

Atheism is the only thing that can save our planet!

Marbury v. Madison was a great power grab on the part of John Marshall. That being said, it's been the norm for a long, long time, and it seems unlikely to be overturned by anyone.

If we're going nuts about what's actually in the constitution, though, what about the phrase "limited government?" Not in the constitution. This phrase only arises later as a normative description.

It also would have been good to mention the Federalists, of whom Jefferson was, I suppose, speaking when he wrote about county judges (who also, BTW, did have some executive function in those days, as there was no bureaucracy at any level to speak of). There's a great historical irony in that the Federalists, in their war of words with the antifederalists over ratification, dismissed the claims, similar to those you see referring to the SCOTUS ever since Bush v. Gore, that the Supreme Court would be an unchecked, potentially tyrannical and unnacountable body. Hamilton, writing in Federalist 78, famously described the judiciary as the least dangerous branch and listed the several reasons why this was the case. It is an irony of history that the Federalists, once they had been chastened by the voters, effectively retreated to the judicary, where they still held the most appointments, and it was the Federalist John Marshall who conducted the power grab that the anti-federalists had feared before ratification.

Thom leaves out that fact.

I've never been wrong on global TV before! How cool is that?

That since the Supreme Court doesn't have the right to declare a law unconstitutional, that the Executice branch (Obama) could still carry out the law with individual mandate intact regardless of the ruling in June?

However all I can say is:

Not bad for a random Norwegian "socialist" to get honorable mention by Thom Hartmann. hehe

power to the People. Yeah, elections should and DO matter.

Thom Hartmann would like to sell your rights down the river.

which I'd challenge - and so would Jefferson.

Roe v. Wade was arguably a good decision, just like Brown v. Board, but it came 13 years after the FDA legalized birth control pills, and if SCOTUS hadn't done it, Congress would have within a few years. The times were changing. This is just one example of SCOTUS being a few years ahead of the representatives of "we the people."

It wasn't SCOTUS that ended segregation - that started a century earlier, reached climax in the 1950s - Eisenhower integrated the military, remember - it was already underway - and hit its peak in the 60s when the First Branch, the legislature, passed civil rights laws.

The idea that we need 9 unelected "wise people" to save us from ourselves is the same logic that sustained kings and queens in Europe for millenia. And it's - IMHO - wrong.

Keep in mind, our deference to these guys also brought us Dred Scott, which led to the bloodiest war (per capita) in American history - the Civil War. And in Brown, they were simply reversing *their own* decision in 1898 in Plessy v Ferguson. SCOTUS brought us nearly a century of legal segregation. SCOTUS - from Dartmouth to Santa Clara County to Buckley to First Nat'l Bank to Citizens United - *created out of whole cloth* the doctrines of "corporate personhood" and "money is not property, it's speech" - both of which have been expressly rejected - repeatedly - by both Congress and over a dozen presidents.

As Jefferson said, about the 1803 Marbury v Madison case in which Chief Justice John Marshall (Jefferson's 2nd cousin and sworn political enemy, which is why John Adams appointed him CJ on his way out of office, as a final FU to Jefferson) took onto the court a power not given them in the Constitution:

I wrote this in "Unequal Protection" by way of background for my thinking: (http://truth-out.org/index.php?option=com_k2&view=item&id=735:unequal-protection-the-early-role-of-corporations-in-america)

-----------------------
But the states, as Charles and Mary Beard write in The Rise of American Civilization, “had to reckon with the Federalist interpretation of the Constitution by John Marshall, who, as Chief Justice of the Supreme Court of the United States from 1801 to 1835, never failed to exalt the [pro-business] doctrines of Hamilton above the claims of the states.”19

Marshall, appointed to the Court by Federalist John Adams (who had appointed—for life—only Federalists to all federal judgeships), was what would today be called a judicial activist. As the Beards wrote, “By historic irony, he [Marshall] administered the oath of office to his bitterest enemy, Thomas Jefferson; and for a quarter of a century after the author of the Decla- ration of Independence retired to private life, the stern Chief Justice continued to announce old Federalist rulings from the Supreme Bench.”

In 1803, during the second year of Jefferson’s presidency, Marshall took on a power for himself and future Supreme Courts that made President Jefferson apoplectic. In the Marbury v. Madison case, as the Beards relate it,
Marshall had been in his high post only two years when he laid down for the first time in the name of the entire Court the doctrine that the judges have the power to declare an act of Congress null and void when in their opinion it violates the Constitution. This power was not expressly conferred on the Court [by the Constitution]. Though many able men had held that the judicial branch of the government enjoyed it, the principle was not positively established until 1803 [by Marshall’s ruling in this case]...
Jefferson, shocked, bluntly expressed his concern to his old friend Judge Spencer Roane, the son-in-law of Patrick Henry and a justice of the Virginia Supreme Court:

If this opinion be sound,” Jefferson wrote, “then indeed is our Constitution a complete felo de se [legally, a suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation...."

Jefferson continued in full fury,

"The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal....

"A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [an error or blunder], at least in a republican government."20

In his decision putting the Supreme Court above the elected officials (the legislature and the president), Marshall was echoing Hamilton’s Federalist mistrust of any form of government constrained solely by those elected by the people. Kings had faced challenges, the Federalists argued, and fought back because as kings they could force decisions without having to wait for a consensus by the people. This powerful federal judiciary, only partially answerable to the people, the Federalists believed, was essential to the survival of the nation.

Madison, an ally of Jefferson, in the Federalist Papers (No. 39) wrote: “It is ESSENTIAL [capitals Madison’s] to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.”22

----------------------

Finally, I rest my case with SCOTUS's Bush v. Gore, in which the 9 kings and queens - er, SCOTUS - ruled (read it!) that George W. Bush would be "irrevocably harmed" if the recount of the vote in Florida that had been ordered by the FL Supreme Court was allowed to continue.

SCOTUS should be the third among equals, not the lord over the other two branches of government. And, as Article 3, Section 2 says, shall operate "under such Regulations as the Congress shall make."

And "We the People" - by voting in or out our elected representatives based on their voting records - should be (absent SCOTUS's Citizens United) the first AND final arbiters of constitutional law - and first and final protectors of the rights of all minorities...

Thom

I listened to your rant on KPOJ and I completely agree with you.

All you did was insist that DUers read the Constitution. There's nothing wrong with that.

Steve in Portland

on edit: There is nothing in Article III that gives the SCOTUS the power to overturn laws passed by Congress, unless they pertain to treaties and ambassadorships, as far as I can see.

Here is the entire text of Article III:

SECTION 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

SECTION 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

SECTION 3.

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

---

Nothing in there about declaring laws unconstitutional.

Conservative men in black robes have stolen the power of our elected Congress.

Fair enough. I disagree. I think the Constitution has too long been interpreted by the autocrats outside of the Framer's intent, a society of equals.

was removed from the landscape, Congress would have the ability to impeach certain Supreme (now mediocre) Court justices. Because of lobbyists' influence, our democracy now goes to the highest bidder. It was the corrupt Roberts Court that gave lobbyists total control of elected officials with the Citizens United Not Timid decision.

If anyone wants to watch what actual news looks like they can watch RT. I'd recommend watching on a Tuesday or Thursday from 8:30 pm EST to 11, that way the viewer can watch Max Keiser, Thom Hartmann and The Alyona Show. The viewer will learn more in one night watching RT than they would watching a full year of mainstream media.

And no, I don't work for them, just love their programming.

Article III

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Amendment 11 - Judicial Limits. Ratified 2/7/1795. Note History

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

http://www.usconstitution.net/const.html#Article3

I think that gives the courts the authority to hear and decide cases alleging violations of the Constitution, whether the violations consist of laws passed by Congress or of other conduct by the government.

For example, if Illinois passed a law saying it was illegal to videotape a cop in public (as they did), and you were arrested under it, and took it to SCOTUS, they could refuse to send you to jail because the law was, in their opinion, not consistent with the highest law in the land, the Constitution. That would *not* strike down the law - it would just mean that every prosecutor in Illinois would stop trying to enforce it because they knew they'd eventually lose at SCOTUS. Or at least most would. THEN the legislature of Illinois - the appropriate place for law-ending and law-making - would take up the law and revise it so that it could be enforced.

And even that is a stretch. SCOTUS in the first years of this nation almost *never* turned to the Constitution - they were, as you quoted above, simply the final court of appeals - the place where the buck finally stopped.

Thom

for if they can refuse to enforce any law or act of Congress they think is unconstitutional they have effectively
rendered any such law null and void.

Again, read Hamilton in Federalist 78 - where he said that SCOTUS has no enforcement powers. They can rule, but, as Andrew Jackson famously said, "John Marshall has made his decision; now let him enforce it."

Making and removing laws is the expressed power of the legislature (and the President with the veto or signature power). Period.

SCOTUS can throw a wrench in the process, but not lord over the other two branches of government.

He influenced me to serve in local govt, to which I say (sometimes...)AAUUUGGGHHHH!!!!

Then, when I collect my exploding head (as I believe we do here form time to time), I go do my background reading.

We are better for it.

Mr. Hartman,

On the March 28th show you asked your listeners to read the Constituion and cite where in the document that judicial review is mentioned in the document. Your request is specious. There is no enumerated power and you knew that when you challenged your audience. I could ask where is the president's cabinet mentioned in the Constitution? Where is the FDA, SEC, FCC, mentioned? They are not enumerated either but they are implied, resulting and inherent powers. All cabinet secretaries and regulatory agencies were implemented to assist the executive and legislative branches perform their respective responsibilities as delineated in the Constituion.

I submit, therefore that the justification behind judicical review is that it too is an implied power and probably an inherent power. With this in mind, my reasoning is that the Constitution is law, that it is the duty of courts to interpret the law in order to decide cases in accordance with it, and that therefore the Supreme Court has the authority and indeed is duty-bound to interpret the Constituion, and of course to prefer to it to any law. I would further add that the Constitution enjoins the courts to enforce the Constitution as the supreme law of the land (Article 6, Section 2), only those acts of Congress that are in "pursuance of the Constitution".

There are of course arguments against the above and the essence of Chief Justice Marshall's logic, but I've furnished you an article and section written within the Constitution and the justification for judicial review.

I am sure the founder gave the states an out when everything else fails. Overall very good research and analysis. But things have changed a lot since then, states are far less powerful, the people and not the state govts appoint senators now among st many other changes

Anyone who has taken a course in Constitutional law or had other constitutional legal training knows that the Constitution says very little about the Supreme Court, but that does not really matter because the power of judicial review was established in Marbury v. Madison when Chief Justice Marshall wrote:

"It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each."

The Supreme Court has had this power for ~210 years, mostly due to the work of Mr. John Marshall. To argue that the Supreme Court does not have this power would seem to throw 210 years of Court decisions (Brown v Board, etc) to the wind.

do read the Wikipedia article which has a great deal of historical background
(with footnoted sources):

http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States

A few years back, I debated a conservative at a think tank here in DC - there was a room full of cubicles, and virtually screen was editing a wikipedia page...

This entry does NOT include Hamilton's criticism of judicial review in Federalist 78 - the very one it quotes where he also supports it. And Hamilton was the Federalist in the bunch - the antifederalists (turned in 1798 by Thomas Jefferson into the Democratic Republican Party, and today known as the Democratic Party) opposed the idea by and large. Similarly, Jefferson's extensive writings against JR are not quoted, although one of his weaker ones is.

As I said earlier, wikipedia is not a reliable source - it's constantly being edited by right-wing think tanks here in DC, and professional right-wingers "working from home."

That said, this isn't entirely a right-left issue. Check out Newt on it:

that is in danger of being overturned?

Is Hartmann believe in original intent like many right-wingers? reasoning if the law under consideration now were the subject of Brown v Board of Education or Roe v Wade?

Or does Hartman really not believe in stare decisis and hold to original intent like so many right-wingers do?

Last edited Sat Mar 31, 2012, 08:24 PM - Edit history (1)

I missed that part on your show and noticed people talking about it afterwards.
I thought that seemed terribly out if character for you- you wont even let anyone talk ill of someone who us not on the air to defend themselves.I

I thank you for your show. I have learned so much from it. I don't know where I was in history class, but obviously I was asleep.

I want to add that the things I learn from you are very diverse. I will never forget your story about helminthic therapy in Germany. As someone who has an autoimmune disease, I was Like heck ya, I will have a worm cocktail if it helps me. I think that the Europeans are so wise in many respects.

If Congress proposes a piece of legislation and the POTUS passes it into law, can the SCOTUS stop, (rescind, veto, overturn), this law?

If the answer is yes, then please explain to me in as simple terms as I am asking the following: How is one third of a co-equal government able to do what the other two can not do?
For instance, can the Executive branch overturn the combined efforts of the Legislative and the Judicial? Conversely can the Legislative branch overturn the will of the combined efforts of the Judicial and the Executive branches?

Yes, I know the two examples I gave do not reflect the way our government works*, I use the examples here to illustrate something I see as undemocratic in our democracy. If the SCOTUS has the power to nullify the combined will of the Legislative and Executive branches, in my opinion that, by definition negates the notion that they are co-equal.

Furthermore it makes the SCOTUS the most powerful branch of government in the land.

*Executive alone with such power, kings and dictators. Legislative alone with such power would be the preferred government of fascists and corporatists. Neither is acceptable by those who strongly believe in a government of by and for its citizenry.

For years the SCOTUS has parsed who has rights under the Constitution. Non-citizens don't have it (wrong), U.S. citizens aren't protected by the 4th amendment if they are living or travelling outside the U.S., now the OK to assasinate citizens labelled 'terrorists', there is no such thing as 'authorization for use of force' by congress in the constitution (only the right to declare war). Shrub and company shredded the constitution and I don't remember hearing a peep from the so-called 'patriots' of the tea-party are the laughable oath-keepers.
Since 'we the people' allowed this, we now have an out of control plutocracy.
Does anyone think there will be a way back from this?