From: greeny@top.cis.syr.edu (J. S. Greenfield)
Subject: Re: double jeopardy (facist LA police)
Organization: Syracuse University, CIS Dept.
Date: Sat, 15 Aug 92 19:52:39 EDT

In article <1992Aug14.170524.1@acad3.alaska.edu> fsars@acad3.alaska.edu (Allen R Sparks) writes:
>> 
>>   Hear hear Mr. Greenfield.  If the constitution is so damn simple to
>>   understand, then why the heck did the founding fathers find it so
>>   important to have a branch of the government who's sole responsibility
>>   is to interpret that document?
>
>Well, I don't know what the Federalist Papers say, but keep in mind
>that the role of the Supreme Court was never defined.  No where in the
>Constitution does it say that the SC has the power to declare a law
>Unconstitutional.

Not quite.  It is (essentially) explicitly stated that *state* laws can
(and must) be declared unconstitutional. (Article VI, Clause 2).  What is
*not* explictly stated is whether the courts could declare a *federal*
law unconstitutional.

Of course, Article III, Section 2, Clause 1 does state:

"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,
under their Authority..."

and Clause 2 also refers to the Supreme Court having jurisdiction to decide
matters "both as to Law and Fact..."


Article VI, Clause 2 states:

"This Constitution, and all the Laws of the United States which shall be made
in Pursuance thereof; and all treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution
or laws of any State to the Contrary notwithstanding."

(The latter half of this is what I refer to as an explicit statement that
courts can (and must) rule on the (federal) constitutionality of provisions
of state laws and constitutions.)


I think one would be hard-pressed to argue that, under the Constitution,
no mechanism exists to determine whether a law has been made "in Pursuance"
of the constitution.  And given that the judicial branch was delegated the
power to determine matters of law, I think one would be hard-pressed to
argue that the courts are not empowered to make that determination.


>It was Marshall who got around to declaring a law unconstitutional for
>the first time, and he was the third Chief Justice.

Well, it was under Marshall that the judicial system first declared an act of
Congress unconstitutional (Marbury v. Madison).  And there was some
controversy at the time.  But I still suggest that one would be hard-pressed
to find any logic that supports the contention that the courts do *not*
hold the power of judicial review (of federal laws) under the constitution.


>Your statement, "a branch of the government who's sole responsibility
>is to interpret that document" is inaccurate.  The Judiciary Branch's
>responsibility extends to interpreting all laws passed by Congress,
>not just the Constitutionality of those laws.  Even if you were to
>limit your statement to the SC, instead of the whole Judicial Branch,
>the Supreme Court hears appeals all the time regarding laws passed by
>Congress, without deciding on their Constitutionality, especially if
>two different Courts of Appeals disagree.

And they can even make determinations of simple fact--although, we don't
often think in terms of the higher courts (SC and CAs) undertaking such
"lowly" pursuits. :)


-- 
J. S. Greenfield                                         greeny@top.cis.syr.edu
(I like to put 'greeny' here, 
but my d*mn system wants a 
*real* name!)                        "What's the difference between an orange?"
Xref: sparky misc.legal:16202 talk.politics.misc:40892