Has the Constitution been over-riden for years?

Question

By this i mean way back in the early 1800s, the Supreme Court Judge John Marshall gave the power to declare whether or not a law is unconstitional or not to the Judicial branch in a very famous Supreme Court Case. Well, it still stands today, and was just recently used and stopped the wire-tapping because they declared it unconstitutional. But since the Judicial Branch did that, does that mean what it does unconstitutional, since it's job is to punish criminals, and not create laws?(It created a law by saying this law was null, just like the emancipation proclamation towards slavery, a law to get rid of another law)

But then couldn't you say that the Supreme court and Congress have a very close correlation to each other?

Answer 1

Yes, you could say that.

The correlation between the two is as follows:

Congress of course creates law but the Judicial system reviews and interprets those laws in addition to punishing criminals and settling civil suits. Like the example you gave of the wire tapping case.

You question is not as complex as some of the other answerers expressed.

It is this simple:
- Congress has a duty while creating laws to follow the guidelines set forth within the constitution. When those guidelines are questioned, a case is created in the judicial system for review... and might eventually make it to the US Supreme Court. In these situations, the defendant is the Federal government.

- While in the judicial system, the courts will review the legislation and determine whether or not it violates the constitution based on their interpretation of it.

I don't like the argument that the judicial system also creates laws. I don't agree with that. I believe it is as I explained above and when they rule a law does not follow the constitution they rule it void and send it back to Congress for alteration.

PS Some would argue the constitution has been over-ridden 100s of times with Bush's executive orders concerning Faith-Based Initiatives within the government receiving tax dollar funds. Until those are questioned, they will not be reviewed.

Answer 2

1803 (Marbury v. Madison) and 1816 for state laws.

But that has nothing to do with the recent wiretapping case. The NSA program is invalid and illegal under FISA (50 USC 1801) and the Omnibus Crime Control Act (18 USC 2511). The program was invalid under current federal law, by the plain text of the statute, not because of some court interpretation of the constitution.

Read the court case and the holding. It wasn't about whether the program violated the constitution. It was about whether the program, which did violate federal law, was specifically allowed under other constitutional provision which overrode federal law.

Bush admitted that the program does not comply with FISA. His argument was that he is not bound by FISA, and has inherent authority under Article II to ignore the laws enacted by Congress.

The ruling in the wiretapping case was that Bush did not have inherent authority to ignore those laws, and that because he did not have inherent constitutional authority to violate those laws, Bush's claim that he did was not supported by the constitution.

Bush's actions would have been legal if he had gotten Congress to change the laws. Congress didn't, so Bush had to follow the laws. That's all the court ruling actually said. That Bush does not have the inherent authority to ignore the laws when he feels like it.

And the court's job is not to punish criminals. That's an executive function. Which is why law enforcement and prisons are both under the executive branch. The Court's job is to resolve legal disputes, and determine when someone has broken the laws. And that's what they did, in the wiretapping cases.

{EDIT}

Yes, both the Court and Congress have the authority to make laws. Congress makes prospective forward-looking laws (statutes) and the courts make binding precedent (common law). That's the division of power that we've had for centuries, long before the Marbury holding. For more details, read the article at the second link.

But I do agree that Marbury was a power grab, and that the court doesn't need the broad power to strike down laws as being unconstitutional. For more details, read the article at the third link. But that still has nothing to do with the NSA wiretapping case.

Answer 3

Yes. Look at Roe v Wade. The Supreme Court invented a right to privacy that does not exist in the Constitution to circumvent the legislature. You can read my full argument here on why Roe v Wade is bad law. http://answers.yahoo.com/question/index;_ylt=Asdu.QcZZjMTinywfjdAVi3sy6IX?qid=20060914070727AAQEWER

It is a known fact that the courts regluarly legislate from the bench. The problem is both extremes (liberal left and conservative right) have politicized the courts. Pres Bush has appointed 2 justices to the Supreme Court that are conservative (or I prefer strict interpreters). People throw the term conservative around for judges and it means something completely different that when it is applied to politics.

Judges are supposed to look at a law and see if it directly conflicts with the Constitution. They are not supposed to make new law: gay marriage, legalizing abortion, etc.

I strongly suggest anyone read the book Men in Black by Mark Levin. He is a brilliant man and comes on after Sean Hannity on WABC in NY at 6pm. You should be able to listen to him online. He goes over all of this in great detail on a regular basis.

Answer 4

Sadly a little known fact. The United States is a common law country. This type of law comes to us from England and is only practiced in a few countries in the world today (i.e., England, Australia, to a lesser extent India, etc.).

The vast majority of the world, however, is composed of civil law countries. The civil law comes from the Code Napolean (i.e. the Napoleanic Civil Code). This type of law is practiced by basically all European countries other than England and most other countries in the world. Additionally, the State of Louisiana is often called a Civil law system, allthough it's more correctly classified as a mixed jurisdiction.

Now, why this is important is because the basic difference between the common and civil law systems is that under a civil law system there is a systematic code of laws that are meant to be comprehensive. Judges are only to apply the laws (or -- and only if necessary -- intepret the laws), and all law making power is to be reserved for the legislature who may from time to time update the Code.

Under the common law, however, (remember, the system that we use!) not only are judges allowed to interpret laws, but they are also entitled to make new laws. Now, when there is a statute that covers a particular area of law, the judges are to apply that statute, of course. However, when there are holes in the written laws (and there are plenty since under a common law system a comprehensive code is not attempted) the judges make the law. The area of the law known as torts (tort means harm which is basically the area of the law in which you bring personal suit against another for some harm that he has caused you, but that does not arise under contract law), for example, has historically been nearly completely the creation of judges. Today the legislature has passed many laws that apply to torts, but the common law (i.e. judge made law) still predominates.

So for you to make the assumption that it is somehow wrong (or even unconstitutional!) for judges to make laws in unfounded, and patently ridiculous if you know anything about our legal system.

Unfortunately ignorance is the norm in this country. Sigh. :(

Answer 5

The supreme court's job is to interpret the constitution. So, when they say something is unconstitutional, they are interpreting the constitution to prove that the founding fathers did not approve of whatever action is being judged upon. Therefore, the constitution is not being over-ridden, it is merely being interpreted and examined in new ways for various cases.

Answer 6

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Answer 7

The US Constitution Has Been Amended Into A Mobius Strip

http://en.wikipedia.org/wiki/M%C3%B6bius_strip

Answer 8

The supreme court interprets the law based on their interpretation of its intent as applied towards the constitution.
That is ITS sole role.

Answer 9

Yes give credit 2 republics

Answer 10

We have been ignoring it for quite some time.