Extrasense said:
If Legislative and Executive were so stupid to desire such measures, the protection that we have now, would be by no means better than we would have if "judicial review" were eliminated as I suggest
Interesting. Seems a bit like sex without a condom. After all, there's no difference between 85%, 95%, 99%, and 0%, is there?
Just to make sure I am reading you correctly ... by all means disagree if I'm taking you wrongly:
If the L & E desired to usurp the constitution
the protection we have now (e.g. today)
would be no better than if judicial review were taken away.
A very interesting proposition, but it rings like an insupportable thesis. Nakedly apparent is the question of judicial vs. congressional "tyranny". You seem to prefer the latter. Today I have protection against religious intrusion. The ACLU has gone before the courts and argued successfully in opposition to laws both promoting and denigrating religious expression. Without the courts, what stops Congress from advancing one religion and suppressing another?
Because, tomorrow Legislative and Executive CAN suspend judicial review, and next day enact whatever they want. 2 days of protection.
That would be entertaining to witness.
Contemporary political discourse is nowhere near sufficiently prepared to engage the issues surrounding the whole of judicial review. Suspending judicial review would require armed force.
Last July, House Republicans attempted just that. The bill didn't pass, though, so nobody ever had a chance to sue it. But the proposition serves as an example: the only reason one wishes to suspend judicial review is in order to violate the Constitution.
The Supreme Law of the Land means nothing without a means of enforcement.
The courts need not assert their authority of judicial review: the issues come to them.
After all, it's people and their lawyers who file lawsuits. All judicial review is, in the end, is a comparison of the hierarchy of laws. Party A sues Party B. Party B responds by pointing to Law C (city). Party A rebuts by pointing to a higher authority of Law D (state). Party B argues that Law E (federal) supersedes D. Party A points to the Supreme Law of the Land, the highest tier of law, to contradict E with Constitutional point F. Point F will win. Period.
If General Jones orders Colonel Smith to conduct a war with careful regard for civilian life, and Smith passes that order on to Commander Jackson, and Commander Jackson orders a town to be razed, what of Private Williams? He balks at the order. Commander Jackson points to his orders. Williams points to the orders given Commander Jackson, and asserts there is a discord between the order at the top of the chain, and the order coming from Jackson.
Abusers at Abu Ghraib and other U.S. military installations pointed to orders. Yet this is not a proper defense, since they have instructions that supersede direct orders should the circumstances arise. Williams, choosing to disobey Jackson's order, will be placed under arrest at the order of Lieutenant Brown, but will he be convicted for refusing to disobey a higher authority?
Suspending judicial review? To revisit the sex metaphor, why not throw away the condoms and give yourself a few strategic razor cuts before plunging into wild sex with an AIDS patient?
I disagree with the assertion that our protection against tyranny will not be diminished by the loss of judicial review. In fact, I find that assertion laughable.
We depend on the "good" intentions of all three powers and their actors, and their reasonabe ability to understand what the "good" is.
Yes, we do. Which is strange in a way, considering the amount of complaining Americans put out about their politicians. Politicians are dishonest--this is a standard presupposition of American political affairs. And yet we continue to endorse the dishonesty.
Strange, that. But in the end, necessary. What you're proposing is to put constitutional compliance in the hands of a legislative body that is clearly recognized as sold.
We elect certain judges. This is the business of the people. But there comes a point at which the people need to be guaranteed a certain consistency in matters of law and justice. Hence, appointed judges that serve for life. Their petitioners are lawyers, not lobbyists. Their decisions are made in consideration of the law, not re-election.
You would, in fact, nullify our American Revolution. That, I admit, would be a sad day.
Farthermore, we believe that three heads better than one or two, henceforth three branches of government
So why lobotomize one of those heads? Among the diverse potential results, optimizing its contribution to the process is not one of those.