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One: Three presidents (Johnson, Nixon, and Clinton), and two: I think he was being sarcastic.
This is the same man (Newt Gingrich) who said that he would have activist judges explain their decisions to congress. Or just shot.
Very big Daydream Believer. "That's not knowledge, that's a crapshoot!" -Al Murray "Welcome to QI" -Stephen FrySome comments:
@Flyboy
Judicial review was not created by Marbury v. Madison. See here.
The earlier Ellsworth Court used the process, too.
It's also implied by Federalist Papers, and to a lesser extent by common sense: why have a constitution that is overwritten by statutes? Judiciary's purpose is to settle disputes, so it makes sense to include interpretation of laws in that.
The Congress before Marbury tried to be responsible; Madison actually argued in the House about the national bank being unconstitutional, and Hamilton argued the opposite. The Congress back then actually tried to prevent measures based on constitutionality, instead of leaving the responsibility to courts.
@Ramidel
I think what Congress can do is pass laws that agree with Supreme Court's decisions. If president tries to ignore those, then Congress will get angry and may impeach after all. Even an acquittal can disrupt the president's activities and warn him not to act recklessly.
@Treblain
I think at Dred Scott point, the states were already at a breaking point, so it's an exceptional case. Keep in mind that states started to secede between Lincoln's election and inauguration - so that would be before Lincoln went against the Court cases.
If Gingrich wants to put states at a breaking point, that's a problem of its own, and he would better have sensible reasons to act like that. Having laws realistically unenforceable is a justifiable cause; the opposite, trying to force something prohibited by law (taking away civil rights) is not.
edited 19th Jan '12 11:30:33 PM by abstractematics
Now using Trivialis handle.Well Considering that FDR's "Court-Packing" in the late 1930s caused such a shitstorm and he was just filling it with pro-new deal judges rather than ignoring the supreme court entirely I would say Gingrich would seriously end up in some serious shit.
Like if FDR, one of the most famous and relatively popular presidents of the time couldn't win with just stacking SCOTUS, how would Gingrich get away from rendering the entire court obsolete?
@Abstract,
"Implications" don't really matter. What is there is what we've got, unfortunately. And even Wikipedia, which you linked, supports my position that the loophole exists and could be legally exploited:
Is this good? No. But in a purely technical sense, Gingrich could do this, and legally get away with it, in theory.
"Shit, our candidate is a psychopath. Better replace him with Newt Gingrich."Um, no. The judicial branch is the legal mediator, so you can't just sidestep it. You can try anyway, but you need to have a good cause for it.
Now using Trivialis handle.Well, I apply the "in theory" because of course in reality such a concept would instantly crash and burn into a fiery political inferno.
But theoretically, what he's proposing is perfectly legal, albeit only if one takes the letter of the law and not the spirit.
"Shit, our candidate is a psychopath. Better replace him with Newt Gingrich."I think Article III of the Constitution would say otherwise.
What Gingrich is proposing is not about judicial review. It's disregard for a branch of the government and its authority to decide cases. It's judicial power. What power does it have if no one listens to its decisions?
edited 20th Jan '12 1:42:17 PM by abstractematics
Now using Trivialis handle.Well, as for disregarding actual decisions by the Supreme Court made with existing law, he wouldn't be able to (legally) get away with it. If he's suggesting that, then he's simply (more of) an idiot. But in the limited context of judicial review, he could pass by on a technicality.
"Shit, our candidate is a psychopath. Better replace him with Newt Gingrich."Are we really surprises he would say this? Newt has proven to be the king of hypocrisy on so many levels of politics and morality.
And given our current panel of Supreme Justices, I honestly don't see them sitting quietly and waiting for the president to call on their raised hands. We have a very outspoken group who, even if I don't agree with all of them individually, are very quick to explain their logic and where they came to their decisions from.
Though if Newt somehow did get elected, well. I guess I'll just have to say sorry America and run to Canada.
"Oh wait. She doesn't have a... Forget what I said, don't catch the preggo. Just wear her hat." - Question MarcAs far as what would happen, remember that the judiciary is more than just the Supreme Court. It also includes the lesser Federal courts and the States' courts. Gingrich wants the authority to hold and imprison people forever without charging them with a crime. The remedy if you are wrongfully imprisoned is to petition for a Writ of Habeas Corpus. BUT if you are physically prevented from seeking a legal remedy, then the courts are powerless to intervene on their own. What this means is that even though the Courts have repeatedly said that it is illegal to deprive a person of their freedom without due process, Gingrich intends to use force to do that anyway.
Got that? Gingrich has declared his intention to forcibly prevent people subject to the laws of the United States of America from exercising their legal rights as enshrined in the Constitution.
edited 24th Jan '12 4:22:06 PM by Lawyerdude
What we obtain too cheap, we esteem too lightly.Not this again... those aren't mutually contradictory terms. Republic just means everything that is not a monarchy. Everything. USA? Republic, and democratic. Germany? Republic, and democratic. But also Putin's Russia - Republic. And Saddam's Iraq - Republic.
Unbent, Unbowed, Unbroken. Unrelated ME1 FanficThe USA is a Federal Democratic Republic. It is Federal because power is shared between the national and state governments. It is a Republic because it is not a Monarchy. It is Democratic because sovereignty derives from the people, who exercise political power through their elected representatives.
As far as the NDAA goes, whether it codified existing power or created new power is a matter of debate. But whether it is constitutional or not has yet to be decided. Gingrich could, as he has threatened, forcibly prevent challenges to the NDAA by simply imprisoning people incommunicado and without access to legal recourse.
edited 25th Jan '12 11:05:36 AM by Lawyerdude
What we obtain too cheap, we esteem too lightly.Constitutional Federal Democratic-Republic. If that seems contradictory, take a basic high school government class and stop asking us to clarify simple terms that everybody should already know anyhow.
In any case, no, he wouldn't get away with it, but fighting him over it would be difficult.
I worry that if he—or somebody like him in the future—tried this they would win not because they're legally correct, but because there would simply not be the political will to fight them.
"Shit, our candidate is a psychopath. Better replace him with Newt Gingrich."
