Larry Kudlow: The government needs to pay 50% of healthcare costs

[Idaho_Cowboy]

Would you be so kind as to point out for me the word or phrase in the constitution that grants the courts the power to "interpret" the constitution?  I have not been able to find that and would thank you kindly if you would enlighten me as to its whereabouts.

Well the USSC claimed that power in Marbury vs Madison. It was hotly contested back in its day. The problem is it undercuts the checks and balances of the government. All 3 branches have a responsibility to undo and refuse unconstitutional laws. "Oh well, the court said it's okay," should never have been modus operandi but then again staunch anti-federalist are very rare in modern times.

[Bigun]

Sigh.  We're not going back to Marbury vs. Madison.  You've already lost that one.  Badly.

ONLY in YOUR fevered mind! Nowhere else!

[Bigun]

Well the USSC claimed that power in Marbury vs Madison. It was hotly contested back in its day. The problem is it undercuts the checks and balances of the government. All 3 branches have a responsibility to undo and refuse unconstitutional laws. "Oh well, the court said it's okay," should never have been modus operandi but then again staunch anti-federalist are very rare in modern times.

Actually it wasn't all that hotly contested because many if not most of the founders were still around back then and they merely laughed at John Marshal's attempt to usurp powers not granted!

[r9etb]

"General welfare" applies to the federal government. It does not apply to individuals.

To be more clear, the phrase is, "general Welfare of the United States."  As such, it does not apply to the federal government (I'm not quite sure what you mean by that).  It refers to actions Congress may take that lie outside the purview of a single state, and which in some way confers a benefit to all of the states.

[r9etb]

ONLY in YOUR fevered mind! Nowhere else!

Just to remind you: Marbury vs. Madison has been accepted and applied for over 200 years. 

For you to pretend that it doesn't really apply, is not rational.

[Idaho_Cowboy]

Actually it wasn't all that hotly contested because many if not most of the founders were still around back then and they merely laughed at John Marshal's attempt to usurp powers not granted!

Patrick Henry had a conniption fit. The ability of the court to overreach its powers was one of the items the anti-federalist were forced to compromise on; they warned it would happen and it did.

Andrew Jackson famously showed his contempt for the courts ability to define and re-define the constitution.

[Bigun]

Just to remind you: Marbury vs. Madison has been accepted and applied for over 200 years. 

For you to pretend that it doesn't really apply, is not rational.

I asked for you to show me where the constitution grants the power of judicial review to the courts! I note that you have not done so and I know why!  Because you can't!  It isn't there!

James Madison himself told them what they could do with their decision in that case didn't he?  And he prevailed! Mr. Marbury NEVER got the commission he sued for did he?
 

[r9etb]

Well the USSC claimed that power in Marbury vs Madison. It was hotly contested back in its day. The problem is it undercuts the checks and balances of the government. All 3 branches have a responsibility to undo and refuse unconstitutional laws.

You're wrong about that.  It does not undercut the checks and balances, it actually establishes the terms of checks and balances for the Judicial Branch.  The Constitution doesn't actually say how the Court should respond to laws that are obviously counter to the terms of the Constitution.  Without the principle of Judicial Review, Congress could pass, and the president could sign, any number of laws that explicitly violate the Constitution.  Without Marbury vs. Madison, the court's ability to void unconstitutional actions would not exist.

See the explanation in Marbury vs. Madison itself, or in the numerous analyses of the decision.

[r9etb]

I asked for you to show me where the constitution grants the power of judicial review to the courts! I note that you have not done so and I know why!  Because you can't!  It isn't there!

James Madison himself told them what they could do with their decision in that case didn't he?  And he prevailed! Mr. Marbury NEVER got the commission he sued for did he?

Whatever.  You're irrational on this topic. 

[Bigun]

Patrick Henry had a conniption fit. The ability of the court to overreach its powers was one of the items the anti-federalist were forced to compromise on; they warned it would happen and it did.

Andrew Jackson famously showed his contempt for the courts ability to define and re-define the constitution.

All true!  As is what I said!

[Idaho_Cowboy]

You're wrong about that.  It does not undercut the checks and balances, it actually establishes the terms of checks and balances for the Judicial Branch.  The Constitution doesn't actually say how the Court should respond to laws that are obviously counter to the terms of the Constitution.  Without the principle of Judicial Review, Congress could pass, and the president could sign, any number of laws that explicitly violate the Constitution.  Without Marbury vs. Madison, the court's ability to void unconstitutional actions would not exist.

See the explanation in Marbury vs. Madison itself, or in the numerous analyses of the decision.

Trust me I read them. Judicial overreach was one of my yuge research papers back in college political science class. Some of the problems stem from the God like status people think Marbury vs. Madison granted the court. Just because the court deems something constitutional doesn't make it so.   

[Bigun]

Whatever.  You're irrational on this topic.

Someone is irrational to be sure! And it isn't me!

If the founders had intended for the court to have that power I'm quite sure they would have said so!

[Bigun]

Trust me I read them. Judicial overreach was one of my yuge research papers back in college political science class. Some of the problems stem from the God like status people think Marbury vs. Madison granted the court. Just because the court deems something constitutional doesn't make it so.

The court can declare that lead is now gold but it still won't be so!

[r9etb]

Trust me I read them. Judicial overreach was one of my yuge research papers back in college political science class. Some of the problems stem from the God like status people think Marbury vs. Madison granted the court. Just because the court deems something constitutional doesn't make it so.

So, as it applies to the topic of this thread.  Suppose Marbury vs. Madison never happened.

Now suppose that Congress passes a law that creates a tax to fund something to promote "the general Welfare," however defined.  And the president duly signs the law.

Now you stand up and say, "Congress doesn't have the authority to do that!"  But your Congressman, and the majority who voted for him, say Congress does have that authority.

So what are your options?  A lawsuit is impossible: because Marbury vs. Madison never occurred, the courts have no choice but to say, "well, it certainly seems you're right, but we have no power to rule on such matters. So sorry." 

It's an untenable situation: without judicial review, there are no effective checks and balances when Congress and the president team up to do things that are contrary to the Constitution.  Who other than the courts can intervene in such cases?

Seriously: whatever the faults of modern jurisprudence, judicial review is a good thing.

[Jazzhead]

If the founders had intended for the court to have that power I'm quite sure they would have said so!

They did!  See Section 2 of Article III of the Constitution -  The second paragraph grants the SCOTUS "appellate jurisdiction" over matters within the scope of the federal courts.   "Appellate jurisdiction" means the authority to review matters decided by courts having "original jurisdiction",  and necessarily includes the authority to interpret and construe the applicable law.

So, even without regard to Marbury,  the text of the Constitution itself vests the SCOTUS with the authority to interpret the law.   It's a necessary ingredient of any court's "appellate" jurisdiction.     

[mountaineer]

So, it would appear the consensus we've reached on this thread is:

[r9etb]

They did!  See Section 2 of Article III of the Constitution -  The second paragraph grants the SCOTUS "appellate jurisdiction" over matters within the scope of the federal courts.   "Appellate jurisdiction" means the authority to review matters decided by courts having "original jurisdiction",  and necessarily includes the authority to interpret and construe the applicable law.

So, even without regard to Marbury,  the text of the Constitution itself vests the SCOTUS with the authority to interpret the law.   It's a necessary ingredient of any court's "appellate" jurisdiction.   

Can you believe we're actually arguing this? 

[Idaho_Cowboy]

So, it would appear the consensus we've reached on this thread is:

I think it's finally run its course. It's been fun though.

[txradioguy]

They did!  See Section 2 of Article III of the Constitution -  The second paragraph grants the SCOTUS "appellate jurisdiction" over matters within the scope of the federal courts.   "Appellate jurisdiction" means the authority to review matters decided by courts having "original jurisdiction",  and necessarily includes the authority to interpret and construe the applicable law.

You were so close to being right...and then messed it up with your own interpretation of what appellate jurisdiction means.

Appellate jurisdiction is the power of a higher court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right.

https://en.wikipedia.org/wiki/Appellate_jurisdiction

So, even without regard to Marbury,  the text of the Constitution itself vests the SCOTUS with the authority to interpret the law.   It's a necessary ingredient of any court's "appellate" jurisdiction.   

Again you are trying to superimpose your own opinion of what you think it means versus what it really means.

The jurisdiction you are so incorrectly trying to hang your hat on was a method to allow someone who thinks they got an unfair shake in a court decision to have a higher court...a "court of appeals"...review the evidence...witness testimony...motions that were granted or not granted to see if the ruling of the lower court followed the laws of the place where the court case took place.

It did not give the SCOTUS carte blanche to "interpret the law".  The do have the power to decide everything I just described above and to make sure that the rulings fall within the boundaries of the Constitution...but in no way were they or any appeals court every set up to "interpret the law"...or the Constitution for that matter.

[Jazzhead]

Again you are trying to superimpose your own opinion of what you think it means versus what it really means.

And so you're the authority as to what it "really" means?  Spare me your arrogance and condescension.   

The appellate jurisdiction of the SCOTUS is specifically conferred by the Constitution,  and the SCOTUS's ability to interpret the law has been settled, following Marbury, for nearly 200 years.   

There is no controversy here, outside of the fever swamps. 

Why should I disregard the clear authority enunciated in Marbury based on the say-so of some guy in his pajamas?   

[Weird Tolkienish Figure]

It did not give the SCOTUS carte blanche to "interpret the law".  The do have the power to decide everything I just described above and to make sure that the rulings fall within the boundaries of the Constitution...but in no way were they or any appeals court every set up to "interpret the law"...or the Constitution for that matter.

Don't agree with you on this. The Judicial branch interprets law. That is their function.


I will say that the framers left out anything saying that the USSC is the law of the land for good reason, they were as concerned with judicial overreach as we are today.


Imagine a worse case scenario for Judicial overreach:


1) USSC makes some interpretation that defies common sense and logic


2) Congress moves to impeach USSC justice


3) USSC declares impeachment unconstitutional


4) People try to elect anti-USSC judges


5) USSC declares those elections unconstitutional


6) and so on and so forth


Now you may laugh at me but this kind of thing happens in Venezuela on a daily basis, where the courts are stacked with Marduro cronies.


What happens when USSC declares taht illegals have the right to vote? Or that citizens of other nations have the right to vote?


What happens when the USSC declares the constitution itself unconstitutional? The electoral college goes agianst the principle of "one man one vote" right? They already ruled that way for state legislatures:


https://en.wikipedia.org/wiki/Reynolds_v._Sims


Lots of what-ifs and hypotheticals, but you cannot place absolute faith in 9 robed humans.


The USSC has made some kooky judgement in years past.


There is a movement to nullify this election. Frankly I'm actually rather nervous about it. I could see liberals leaning on Ginsberg and the wise latina to do God knows what.

[txradioguy]

Don't agree with you on this. The Judicial branch interprets law. That is their function.


I will say that the framers left out anything saying that the USSC is the law of the land for good reason, they were as concerned with judicial overreach as we are today.


Imagine a worse case scenario for Judicial overreach:


1) USSC makes some interpretation that defies common sense and logic


2) Congress moves to impeach USSC justice


3) USSC declares impeachment unconstitutional


4) People try to elect anti-USSC judges


5) USSC declares those elections unconstitutional


6) and so on and so forth


Now you may laugh at me but this kind of thing happens in Venezuela on a daily basis, where the courts are stacked with Marduro cronies.


What happens when USSC declares taht illegals have the right to vote? Or that citizens of other nations have the right to vote?


What happens when the USSC declares the constitution itself unconstitutional? The electoral college goes agianst the principle of "one man one vote" right? They already ruled that way for state legislatures:


https://en.wikipedia.org/wiki/Reynolds_v._Sims


Lots of what-ifs and hypotheticals, but you cannot place absolute faith in 9 robed humans.


The USSC has made some kooky judgement in years past.


There is a movement to nullify this election. Frankly I'm actually rather nervous about it. I could see liberals leaning on Ginsberg and the wise latina to do God knows what.

No I get all of that.


What I meant to say is it doesn't give them carte blanche to interpret the Constitution and treat it like it's a living breathing document.  I thought I fixed that but I was typing on my BlackBerry at the time.

Because when they attempt to interpret the Constitution...find "rights" that aren't there and stuff like that...you're absolutely correct...we as a country get some very very strange rulings out of that court room.

[Cyber Liberty]

And so you're the authority as to what it "really" means?  Spare me your arrogance and condescension.   

The appellate jurisdiction of the SCOTUS is specifically conferred by the Constitution,  and the SCOTUS's ability to interpret the law has been settled, following Marbury, for nearly 200 years.   

There is no controversy here, outside of the fever swamps. 

Why should I disregard the clear authority enunciated in Marbury based on the say-so of some guy in his pajamas?

Temper, temper....

[Weird Tolkienish Figure]

No I get all of that.


What I meant to say is it doesn't give them carte blanche to interpret the Constitution and treat it like it's a living breathing document.  I thought I fixed that but I was typing on my BlackBerry at the time.

Because when they attempt to interpret the Constitution...find "rights" that aren't there and stuff like that...you're absolutely correct...we as a country get some very very strange rulings out of that court room.

Interpreting the Constitution is inevitable IMO. We have originalists who like to go into the Madison papers and such. The living breathing document I agree with you about. The constitution can become so living and breathing that it's more like a rotting jellyfish being kicked down a beach, amounting to nothing substantial.


We can argue until the cows come home. We need better justices appointed and IMO we may need some amendment against judicial overreach. But such things can backfire too. We need to be careful, if we do end up getting full amendment power. Such things are not to be undertaken lightly.

[txradioguy]

Interpreting the Constitution is inevitable IMO. We have originalists who like to go into the Madison papers and such. The living breathing document I agree with you about. The constitution can become so living and breathing that it's more like a rotting jellyfish being kicked down a beach, amounting to nothing substantial.


We can argue until the cows come home. We need better justices appointed and IMO we may need some amendment against judicial overreach. But such things can backfire too. We need to be careful, if we do end up getting full amendment power. Such things are not to be undertaken lightly.

Agree 100%