From: dhartung@chinet.chi.il.us (Dan Hartung)
Subject: Re: Supreme Court and U.S. Constitution (was Re: Banned Computer Material 1992)
Organization: Chinet - Public Access UNIX
Date: Thu, 8 Oct 1992 22:42:27 GMT

jkp@cs.HUT.FI (Jyrki Kuoppala) writes:
>In article <1992Oct5.203001.29827@eff.org>, mnemonic@eff (Mike Godwin) 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.
>
>This is probably the (or a) relevant quote?
>
>"     [2] In all Cases affecting Ambassadors, other public Ministers
>and Consuls, and those in which a State shall be a Party, the supreme
>Court shall have original Jurisdiction. In all the other Cases before
>mentioned, the supreme Court shall have appellate Jurisdiction, both
>as to Law and Fact, with such Exceptions, and under such Regulations
>as the Congress shall make."

Sort of.  The point Mike was making was that judicial review over
laws passed by Congress and signed by the President was NOT explicitly
granted, in the sense that the Court could strike them down as if they
had not been passed.  This was a PRACTICE of the court started in the
case Marbury v. Madison, around 1810 or so.  The first time, in short,
that an actual LAW was challenged as being unconstitutional.  

The court ordered it struck down, and this has been the bulk of its
job ever since -- and the bulk of its controversy.

>>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.
>
>OK, I probably wasn't very clear with the idea (in my head or in my
>writing).  How about the issue of a jury or a government employee
>interpreting the Constitution?  This is where it is important what the
>Constitution means?  As an example, when in
>
>"     [3] The Senators and Representatives before mentioned, and the
>Members of the several State Legislatures, and all executive and
>judicial Officers, both of the United States and of the several
>States, shall be bound by Oath or Affirmation, to support this
>Constitution; but no religious Test shall ever be required as a
>Qualification to any Office or public Trust under the United States."
>
>the Constitution is mentioned, does this mean "Constitution as
>interpreted by the Supreme Court" or "Constitution as interpreted by
>each person having sworn the oath"?  What is the answer in US
>Constitutional Law tradition, and in opinions of Mike or anyone else?

Wouldn't we ALL like to know.  The truth is that the court has been
quite happy to contradict itself on these matters as its membership,
and the times, change.

>Sorry if this is old hat to everyone else.

No, no, you're quite welcome to ask.  Heck, most Americans don't 
understand this stuff.

It is probably important to mention that many conservatives believe
that the Constituion gives Congress the right to remove various
kinds of cases from the court's jurisdiction, but that the public
in general -- and more to the point, Congress -- feel that this is
a Bad Idea and will lead to even worse kinds of jurisdictional
fights than we have now.  (In other words, put hot potatoes in the
hands of congressmen who don't want to deal with them, especially
in reelection years....)

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