On 4/12/2013 4:43 AM, Giftzwerg wrote:
> Well, either judicial review is a real power that really exists, or you
> might as well not bother with a Constitution, no?
I'm more quibbling about the difference between the reality versus the
simplistic version we all (in the US) learned in school. The
nearly-exclusive granting of the power of considering Constitutionality
to the Supreme Court, while serving fairly well, was by no means baked
in from the beginning. It evolved though a controversial process.
> I mean, the First Amendment says, "Congress shall make no law respecting
> an establishment of religion..." Suppose Congress passes a law that
> says, "The official religion of the United States is Scientology."
The Second says that "...the right of the people to keep and bear arms
shall not be infringed." Suppose Congress passes a law that says,
"Short-barreled shotguns are illegal," because they are not "ordinary
military equipment." And suppose the Court were to agree.
Does that mean that the Constitutional language becomes (in the extreme)
null and void? Can the Supreme Court re-write the Constitution
willy-nilly because of "Separation of Powers" makes that their job?
If not, if there are limits, how are those limits imposed? Is it
merely self-restraint on behalf of the individual justices that protects
that actual language ratified by the States and people?
> Where does a citizen go to seek redress from a law that conflicts with
> the Constitution? The Congress? They just passed the offending law.
> The executive branch? Their job is executing laws.
>
> At this point, there's only one more square on the gameboard.
I think the answer should be all of the above, and then some.
Ask the agents of the executive branch to uphold their oaths to support
and defend the Constitution and not arrest you in violation thereof.
Take your case to court, and ask the judge or even the jury to refuse to
convict on the basis of bad law. If at first you don't succeed, appeal.
Go to the polls and try to "throw the bums out," those who violated
their oaths to "support and defend."
Look, I'm not trying to argue that there is a better way out there than
our current hierarchy. It has largely served us well. I simply was
struck by your original suggestion that *legislators* should rigorously
adhere to the literal word of the Constitution. In a situation that
would likely shock many of the originators of the Constitution, there is
today quite a bit of a gap between the "literal word" and the "accepted
interpretation" of the language (I'm thinking, for example, commerce
clause, but one's own interpretation of where SCOTUS got it wrong will
vary).
The answer, assuming all this leads to one, is that society should
remember that within our republic, we all have a duty to support and
defend the Constitution, oath or not. The balancing power of the court
itself must be balanced by the other branches of government and by the
people.
"Whose interpretation" is an interesting question at a time when, in
more than one instance, the accepted meaning of constitutional language
splits the country nearly 50-50. And the "correct" interpretation of
that language is one mere supreme court appointment away from being
flipped 180 degrees.
So, yes, it is kind of a trick question.