Explaining Judicial Review to the Left

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The reason tea partiers carried signs saying “Read the Constitution!” was that we were hoping people would read the Constitution.

Alas, we still have Rick Santorum saying Obamacare is the same as what he calls “Romneycare”; the otherwise brilliant Mickey Kaus sniffing that if states can mandate insurance purchases, then we’re “not talking about some basic individual liberty to not purchase stuff” (no, just the nation’s founding document, which protects “basic individual liberties” by putting constraints on Congress); and the former law professor, Barack Obama, alleging that a “good example” of judicial activism would be the Supreme Court (in his words, “a group of people”) overturning “a duly constituted and passed law.”

I don’t know how a court could overturn a law that hasn’t been “passed.” Otherwise, it wouldn’t be a law, it would be a bill. If it hasn’t even been “constituted,” it wouldn’t be anything at all.

Of course the courts can overturn laws — constituted and passed alike! If anything, the Supreme Court isn’t striking down enough laws.

Suppose Congress passed a law (after constituting it) prohibiting the publication of books about Hillary Clinton. That would be a violation of the First Amendment and the courts should strike it down. Failing to strike down such a law would be judicial activism.

That’s the judiciary’s job, which has been pretty well established since the 1803 case, Marbury v. Madison, heretofore the second most sacred opinion in the liberal canon. (Roe v. Wade is the first most sacred.)

Marbury captured the imagination of liberals only relatively recently when they realized that, simply as a procedural matter, the courts have the last word.

The judicial branch isn’t above the other two branches — much less the states or the people. It is (one of my favorite words) “co-equal” to the other branches. Indeed, the judiciary was laughably described by Alexander Hamilton in The Federalist Papers as the “least dangerous” branch.

Anticipating nearly every form of government corruption, our framers specifically designed the Constitution to prevent tyranny. But they never imagined the perfidy of 20th-century liberals. (Probably because the framers didn’t have NBC.)

What liberals figured out — and were mendacious enough to exploit — is that there is no obvious recourse for the other branches if the Supreme Court issues an insane ruling. So, beginning in the 1960s, liberals on the court started issuing insane rulings on a regular basis. Rather than referring to the Constitution, some of their opinions were apparently based on the dream journal of Andrea Dworkin.

Soon every law student could recite in his sleep Chief Justice John Marshall’s line in Marbury: “It is emphatically the province and duty of the Judicial Department to say what the law is.” So shut up and go home.

To take one example of a ludicrous ruling, at random, off the top of my head: In 1973, the Supreme Court announced that the Constitution mandates a right to abortion.

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  • Amused

    Ahhh , there goes Ann Again …pick and choose / cherry picking examples ….lol..,what about Roe vs Wade ? What about Federal law trumping State law in California regarding pot ?
    As usual Ann your statements are self contradictory and hypocritical . Ad wht of the recent ruling on "corporations are people too " ? more than half the country says it B.S.

  • Amused

    I am against abortion , but if that is not in the domain of the Constitution to make LEGAL , then where would a law to make it ILLEGAL be found ? Would you cite moral law ? Whose ? And if so , would it not be just as illegal to kill the unborn as it would to kill those already born but slowly killed by poisoning water supplies by big buisinesses for the sake of profit ? Unsafe occupational hazards in say mining , where safety knowingly and intentionally takes a back seat to profit ? I love the way the term "activist Supreme Court ruloings are thrown around by both sides of an issue . Very few rulings in the Supreme Court are clearly defined or even mentioned let alone considered in the Constitution , making ALL such rulings activist to a degree .
    But ahhhh , just another anti-Obama hypocritical strawman , that's all one could expect from you Ann . In fact that is in itself your sole purpose .

    • kep

      the framers of the constitution were great men but they were men and mortal. chief justice marshal added supreme courts judicial review within a decade, today men and women should.add a right to privacy including a personal decision on child birth.

    • StephenD

      "…then where would a law to make it ILLEGAL be found ?"

      It IS in the Constitution. The right to LIFE.

      We are talking of human life in a particular stage of development but no less human. Of course, then we would be forced to define murder as well. I would offer that Murder is the "purposeful taking of innocent human life." If the life of the mother is at risk than the fetus is no longer innocent and it is her decision. Other than that, it is innocent and deserves the same protection of the Constitution as you and I.
      There, an argument against abortion on demand without any religious overtures for you to lambast.

      • tagalog

        Specifically, "…no person shall be deprived of life, liberty, or property without due process of law." The Fifth Amendment. The Supreme Court carving out a brand-new (and highly doubtful) right to privacy from a variety of cherry-picked consitutional provisions derails due process of law and does an end-run around the Fifth Amendment.

  • Amused

    "paying for stuff " ? constraints on Congress ? Indeed ! Like Murtha's private airport in Johnston Pa, or palins bridge to nowhere in Alaska . or the recent 800k party in Vegas by Obama Admin. members ….yea " do as I say , not as I do " eh Ann ?
    Pfeh ! just more phony hypocrisy on your part Ann . So what else is new ?

    • reader

      Is Coulter in the government? Not that I know of. Whatever's left of your brain is melting away.

      • Rifleman

        Apparently amused had his scattered, smothered, chunked and diced.

      • Maxie

        Abused is so hot for Coulter he goes all to pieces when her articles are posted here.

  • davarino

    Liberals are idiots that would rather have opinion "rule" this country rather than a well defined set of rules, the constitution. Even the liberal "rules" can change on a dime without notice or reason. One day they believe one thing and the next they can arbitrarily believe something else, guided by the all knowing media. The funny thing is that once the left enacts something and the people realize they are being duped, the left are very good at morphing into something else, PROGRESSIVES.

    If you dont like the constitution, tough, you have to get a majority of the states to agree to change it. Beyond that you will have a fight on your hands. Thats not judicial activism, thats patriots fighting for their freedom.

  • Margaret

    We are a nation of "law", a republic democracy. We have a foundation of law, the Constitution, but also a democracy where "the people" can rule by electing any idiots they choose. Unfortunately, we have chosen some evil, arrogant power-hungry Marxists.

    • drj1400

      We are a nation of laws, but we are not a democracy, we are a Constitutional Republic. The founders abhored "democracy" and considered it among the worst forms of government, so much so that they distanced "the people" in elections–of the three branches, only the House of Representative was elected DIRECTLY by the people. The Presidency, the Supreme Court, and the Senate were not elected directly–the President was voted on by electors, the Court was appointed by Presidents, and Senators were elected by state legislatures.

      In a pure democracy there are no minority rights, by definition, only majority rights. The fact that most Americans think we are a democracy is troubling.

  • tagalog

    Actually, there is recourse against a bad Supreme Court ruling, and that is to ignore the ruling. It's been done before. As the old saw goes, "the Supreme Court has no legions" to call upon to enforce its rulings. It the chief law enforcement officer, the President, doesn't deploy his forces to enforce the court ruling, it will fall from inattention.

    • reader

      Really? That's what the 5th Circuit Court told Holder to articulate: do these Marxists even recognize the Supreme Court as an equal branch of the Federal Government, and by extension, the Constitution itself? We know the answer – they really don't want to. They want to rule, as his Marxist advisor had spouted out.

      • tagalog

        Yes, really.

        Of course, laws can be ignored too, and are, daily, everywhere in our fair nation. So Obamacare, even if it is upheld, is not untouchable. The Supreme Court endorsing a law doesn't bullletproof that law. One extreme example is the federal Fugitive Slave Act.

        On the other hand, the Supreme Court invalidating a law DOES bulletproof resistance to its enforcement, obviously.

        • Rifleman

          I think reader thought you were giving your opinion on how it should be, rather than merely stating historic facts.

        • tagalog

          Another more recent example is the War Powers Act.

  • BS77

    Go Ann Go!!! If you haven't read DEMONIC…..go ahead and get a copy. Ann Coulter gives great evidence about the vast differences between the American Revolution and the French version…they are not remotely similar….just as liberals and conservatives….vast differences between mob socialism and the welfare state….and limited government, conservative Constitutional values.

  • LibertyWriter

    We need to also understand that the Constitution is not subject to 'review' and changed without amendment. The decisions of the SCOTUS, however can be and must be from time to time.

    One of the landmark decisions regarding the interstate commerce clause ruled that transportation between states is an unspecified part of commerce between the states; specifically a state could not prohibit a federally licensed steamboat service from operating in a state’s navigable waters in preference to a state licensee if the waters crossed state lines. The commerce clause was interpreted before this time as dealing with legislative disputes between states arising from commerce i.e. tariffs. The new ruling can be viewed as the first Interstate Byway.

    From the addition of the regulation of interstate transportation to the interstate commerce clause the next pivotal decision is one which we are more familiar is the case involving the wheat farmer Roscoe Filburn who grew wheat, not for sale in the market but for his own uses as livestock feed. This was in violation of Federal law which established limits (by regulatory commission) for acreage of wheat production in order to increase the price of wheat (federal price fixing). The government ordered the farmer to destroy the crop and pay a fine. The Supreme Court upheld this federal law stretching again the meaning of commerce.

    Now regulating commerce means regulating markets. The federal government with the concurrence of a decision by a renegade Supreme Court can now involve itself in a command economy. This is socialism.

  • Fred

    Chief Justice John Marshall’s line in Marbury: “It is emphatically the province and duty of the Judicial Department to say what the law is.”

    Of course the Constitution is subject to review and change without bothering with the formal amendment process. When the courts alone are the final arbitor of what the law and Contitution mean the law and Constitution can mean anything the courts say they mean. That is the Consitution's biggest flaw giving licsense to the courts to legislate. The Filburn case is like so many court rulings completely contrary to the intent of the Founders. When government can by decree keep a man from raising food to feed his family we've got a fundamental problem with a system that was set up to protect individual liberty, not supresss it.