From: greeny@top.cis.syr.edu (J. S. Greenfield)
Subject: Re: Supreme Court and U.S. Constitution (was Re: Banned Computer Material 1992)
Organization: Syracuse University, CIS Dept.
Date: Wed, 7 Oct 92 16:23:57 EDT

In article <1992Oct7.010909.22723@ucsu.Colorado.EDU> fcrary@ucsu.Colorado.EDU (Frank Crary) writes:

>>I think it is probably not a good idea to insist that the Supreme Court's
>>power of judicial review is not grounded in the Constitution, even though
>>it is not explicitly granted there. Article III says that the judicial
>>branch has jurisdiction over all cases and controversies that arise under
>>the law and the Constitution of the United States. No other branch is
>>granted this authority.
>
>Having this jurisdiction doesn't mean they have the power to make final,
>binding interpertations of the Constitution. It at least implies that
>they can make rulings on specific cases, based on their understanding
>of the Constitution. But it does _not_ even hint that everyone else
>is required to defer to their interpertation. For them to have such
>power is a good idea, and one that the people expect elected officials
>to go along with, but there is nothing constitutional about it.

I don't follow your logic.  If the courts have jurisidiction over all
"cases and controversies" and, presumably, a claim that a statute/policy/etc.
conflicts with the Constitution is a "controversy," then doesn't the
courts' right to decide the controversy give them, at least, a de facto
ability to make final, binding decisions (if that was not, in fact, the
intent)?

Sure, the courts can't issue an a priori order to prevent the legislature from
passing a court-nullified law over again (or to prevent the executive from
establishing a court-nullified administrative policy over again), but the
court *does* have the ability to immediately enjoin any such statute/policy
from being enforced.  This means that, ultimately, the constitution *has*
given the courts this power.

With regards to the few quotes cited in a previos post, was anybody else
struck that Jefferson and Madison were upset that they *had*, in fact, given
the courts more power in the Constitution than had been their intent.  Their
statements sound like those of people who are waxing philosphical over their
own *failure* to come up with (what was in their minds) an adequate solution.


>By the way, since you seem to think Supreme Court rulings carry 
>great weight in matters of interperting the Constitution, can you
>cite a single ruling, where the jurisdiction clause of Article Three
>was interperted as a grant of the ultimate authority to interpert
>the Constitution? Or that this clause (or any other in the Constitution)
>compels the rest of the government to accept and support the Court's
>rulings? (Don't waste your time: There are no such rulings. The
>Court has only claimed these powers, without reference to the 
>Constitution.)

You are incorrect on this part.  One of the earliest and best known cases,
Marbury v. Madison (1803), makes specific reference to Article II:

"The judicial power of the of the United States is extended to all cases
arising under the constitution.  Could it be the intention of those who gave
this power, to say, that in using it, the constitution should not be looked
into?  That a case under the constitution should be decided, without
examining the instrument under which it arises?  This is too extravagant to
be maintained..."

There's more there, but you get the point.  Clearly, Marshall (and the
rest of the SC in that unanimous opinion) *did* cite Article III (section 2,
clause 1).


>>Your position about the Supreme Court's role is contrary to the generally
>>accepted view in the United States of the role of the United States
>>Supreme Court.
>
>The generally accepted view, is that they have the power to make 
>binding interpertations of the Constitution. However, it is _not_
>the accepted view, that this power comes from the Constitution. Rather,
>it comes from the people's expectations, and the political pressure
>this puts on elected officials.

I'm not sure what you mean here--that most people reject the idea that
the Constitution gives this right to the courts?  If so, I sincerely doubt
that this is, in fact, the case.



One last thing.  While Article VI, Clause 3 has already been cited, this
discussion has ignored Clause 2, which states:

"This Constitution, and 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."

[Note: the "supreme" for "Law of the Land" is not capitalized either.  So
much for the theory that this meant something with respect to the SC's powers.]

Clearly, the Constitution recognizes state courts to hold the final, binding
authority in matters of state law.  Are we truly to believe that the the
Constitution recognizes the states courts in this capacity wrt state laws/
constitution, but does *not* recognize the analogous capacity of federal
courts wrt to federal law/constitution?

To me, such an interpretation seems completely unsupported by any reasonable
logic.


-- 
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?"