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In reply to the discussion: Hey, Democratic Underground! Thom Hartmann called you out! [View all]fishwax
(29,149 posts)49. the federalist papers assert the importance of judicial review
Specifically, #78:
http://thomas.loc.gov/home/histdox/fed_78.html
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.
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.
IIRC, it was anti-federalists who opposed the power of judicial review implicit in the constitution, and saw it as one of the reasons to oppose ratification.
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He really makes a lot of sense; very intelligent and articulate man. I don't,
K Gardner
Mar 2012
#26
He is a journalist. Journalists name their sources when quoting those sources.
Vincardog
Mar 2012
#61
It points directly at the opinions he is disagreeing with, that is what civilized people do. None of
Vincardog
Mar 2012
#65
Please show me where that says "has the power to decide the constitutionality of laws passed by
Vincardog
Mar 2012
#62
is nowhere expressly conveyed. Right there it is settled law. ellisonz is howling at the moon
Vincardog
Mar 2012
#66
Don't you think that if after all this time the power of judicial review was not express...
ellisonz
Mar 2012
#67
The Constitution grants Congress the power to restrain the SCOTUS. Have you caught the Congress
Vincardog
Mar 2012
#68
Excuse me. I thought this whole thread was a constitutional argument. Think anything you want to.
Vincardog
Mar 2012
#71
Just because our government does not choose very often to pass an Amendment...
ellisonz
Mar 2012
#72
Last time I read it, the Constitution said that any authority not explicitly granted as belonging
Vincardog
Mar 2012
#74
If our government was not wholly owned by the fascist corporate machine I may agree with Thom.
Lint Head
Mar 2012
#23
He's correct. SCOTUS even decided that they had the power to unconstituionally appoint a pResident.
Zorra
Mar 2012
#29
Hartmann sounds like one of those wingnuts convinced that income tax is unconstitutional
muriel_volestrangler
Mar 2012
#39
Wow, you couldn't be more wrong. But then that is why we get called out I guess.
sabrina 1
Mar 2012
#56
Well, it looks like he'll be responding to some of the questions this weekend.
sabrina 1
Mar 2012
#78
I knew he isn't right wing; it was his insistence on his unique interpretation
muriel_volestrangler
Mar 2012
#79
I don't recall you making a thread of it the many times that Thom has praised DU readers. nt
Gold Metal Flake
Mar 2012
#40
Not a Hartmann fan myself. When I listened to him more than three years ago, it was....
Tarheel_Dem
Mar 2012
#52