Originalism: What good is it?

[oggbashan]

All appellate Judges are originalists 95% of the time, a few 100% of the time. It couldn't work at all any other way.

The clear evidence for that is that the great majority of judgements are both unanimous and not controversial.

Most modern legislation is written by lawyers who think they know how judges will interpret what the legislation intends. They are usually right but politicians can mess up the original draft.

 

[KingOrfeo]

All appellate Judges are originalists 95% of the time, a few 100% of the time. It couldn't work at all any other way.

The clear evidence for that is that the great majority of judgements are both unanimous and not controversial.

Then it's not really any danger to the constitutional order, is it, if we have some non-originalists on the SCOTUS and other benches?

 

[KingOrfeo]

As an example, Scalia points to the 19th Amendment, which is the amendment that gave women the vote.

It was adopted by the American people in 1920. Why did we adopt a constitutional amendment for that purpose? The Equal Protection Clause existed in 1920; it was adopted right after the Civil War. And you know that if the issue of the franchise for women came up today, we would not have to have a constitutional amendment. Someone would come to the Supreme Court and say, “Your Honors, in a democracy, what could be a greater denial of equal protection than denial of the franchise?” And the Court would say, “Yes! Even though it never meant it before, the Equal Protection Clause means that women have to have the vote.”

But that’s not how the American people thought in 1920. In 1920, they looked at the Equal Protection Clause and said, “What does it mean?” Well, it clearly doesn’t mean that you can’t discriminate in the franchise — not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn’t unconstitutional, and we wanted it to be, we did things the good old-fashioned way and adopted an amendment.

http://erlc.com/resource-library/art...ntial-speeches

I wonder why he chose an example that makes originalism/textualism look worse by comparison?

If you believe, however, that the Constitution is not a legal text, like the texts involved when judges reconcile or decide which of two statutes prevail; if you think the Constitution is some exhortation to give effect to the most fundamental values of the society as those values change from year to year; if you think that it is meant to reflect, as some of the Supreme Court cases say, particularly those involving the Eighth Amendment, if you think it is simply meant to reflect the evolving standards of decency that mark the progress of a maturing society — if that is what you think it is, then why in the world would you have it interpreted by nine lawyers? What do I know about the evolving standards of decency of American society? I’m afraid to ask.

Because the Constitution is law and only lawyers are really competent to interpret it. The nine will make their ruling after both sides' lawyers have presented their cases, which means the nine will be fully informed of the sociological aspects of the issues. Lawyers are not sociologists, but they are adept at finding and presenting sociological evidence, happens all the time, especially in constitutional test cases.

We should have a system like the English — whatever the legislature thinks is constitutional is constitutional.

There's a lot to be said for that, actually. The UK's track record on human rights and civil liberties is good enough to cast doubt on the Framers' estimate of the value of separation of powers.

However, AIUI "unconstitutional" is not an entirely meaningless concept in British law. Courts cannot overturn acts of Parliament as unconstitutional because there is no written constitution against which to examine them; but they can rule that this is an unconstitutional trial. They might, though I'm not sure on this point, even be able to rule that this is an unconstitutional executive order or action, if it goes against the generally understood norms of the British constitutional system.

 

[Rightguide]

Yes, ever since Chief Justice Marshall took the bench. But was anything he did really illegitimate overreach? A "yes" in answer would overturn more than two centuries of constitutional jurisprudence -- do you seriously want to go as far as that?!

Any answer in the affirmative today doesn't change the fact that Marshall exceeded his Article III constitutional authority. Any congressional action prescribing the court's (nonexistent) powers of judicial review going forward would not be detrimental to the health of the Republic, in my opinion. After all, the ultimate soveriegnty of the Republic lies in the hands of the people and the states through their elected representatives, not an unelected bench of jurists with the authority to thwart the actions of all.

 

[Christobal]

I wonder why he chose an example that makes originalism/textualism look worse by comparison?



Because the Constitution is law and only lawyers are really competent to interpret it. The nine will make their ruling after both sides' lawyers have presented their cases. Lawyers are not sociologists, but they are adept at finding and presenting sociological evidence, happens all the time, especially in constitutional test cases.



There's a lot to be said for that, actually. The UK's track record on human rights and civil liberties is good enough to cast doubt on the Framers' estimate of the value of separation of powers.

However, AIUI "unconstitutional" is not an entirely meaningless concept in British law. Courts cannot overturn acts of Parliament as unconstitutional because there is no written constitution against which to examine them; but they can rule that this is an unconstitutional trial. They might, though I'm not sure on this point, even be able to rule that this is an unconstitutional executive order or action, if it goes against the generally understood norms of the British constitutional system.

Now I am totally confused Britain does not have a constitution but things can be found unconstitutional. I looked it up but I still don't get it.

 

[Colonel Hogan]

Any answer in the affirmative today doesn't change the fact that Marshall exceeded his Article III constitutional authority. Any congressional action prescribing the court's (nonexistent) powers of judicial review going forward would not be detrimental to the health of the Republic, in my opinion. After all, the ultimate soveriegnty of the Republic lies in the hands of the people and the states through their elected representatives, not an unelected bench of jurists with the authority to thwart the actions of all.

Frankly, I've never understood this argument. And I was a bit surprised to see it apparently endorsed by Scalia:

The only reason federal courts sit in judgment of the constitutionality of federal legislation is not because they are explicitly authorized to do so in the Constitution. Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn’t say anything like that.

The Article III language stating, "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" has always seemed pretty clear to me.

How the hell does one exercise "appellate jurisdiction as to LAW" without examining and reconciling the legal conflicts between Constitution and statute, i.e. "judicial review"? What is "judicial review" if not that? That may not constitute an explicit statement as Scalia notes, but it seems to me to be a pretty strong implication. I never understood why Marshall did not cite that specific text in Marbury.

IMHO, nothing about judicial review seems Constitutionally "novel."

 

[BotanyBoy]

Because the Constitution is law and only lawyers are really competent to interpret it.

AAAAAAAAHAHAHAHAHA!! And there is that famous lefty arrogance and self importance.

Ever the smug assholes.

 

[Rightguide]

Frankly, I've never understood this argument. And I was a bit surprised to see it apparently endorsed by Scalia:



The Article III language stating, "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" has always seemed pretty clear to me.

How the hell does one exercise "appellate jurisdiction as to LAW" without examining and reconciling the legal conflicts between Constitution and statute, i.e. "judicial review"? What is "judicial review" if not that? That may not constitute an explicit statement as Scalia notes, but it seems to me to be a pretty strong implication. I never understood why Marshall did not cite that specific text in Marbury.

IMHO, nothing about judicial review seems Constitutionally "novel."

Seems to me appellate jurisdiction is the power to review a lower court decision, original jurisdiction is the right of a given court to hear a case first, but the term or concept of "judicial review" isn't in the Constitution. Yes, Marshall said the court had the right to say "what the law is," But I suggest there is no power to say what it isn't. When the court assumes it does, it then introduces a concept of "judicial supremacy," which isn't in the Constitution either.

Writing as “Publius” in Federalist No. 78 Alexander Hamilton, asserted:

“the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution,” because the courts — lacking the legislature’s power of the purse or the executive’s “sword of the community” — have “neither Force nor Will, but merely judgment.”

We know today, because of Marbury v Madison, those words and that founding concept, no longer have legal validity. We know now that plenary powers granted to the Legislature and the Executive by the Constitution itself only exist in theory, not legal reality, as we saw in the case of Trump's travel ban. This is the danger of "judicial review" in that it usurps the constitutional authority of the political branches of government for itself creating a judicial supremacy not contemplated by the Founders. Today we have a court that sits like a super-legislature over the 50 states and both political branches of the Federal government second guessing every decision and policy.

When a court rules against a democratically enacted law without a solid constitutional basis, it is, in fact, making a raw political decision that is outside its Constitutional authority. I view "Judicial Review" as the slippery slope that enabled such things as the limitless expansions of Congress's power under the Commerce Clause that have led us to the monolithic federal state that looms before us today. Just my thought.

PS: The reason it's not constitutionally novel is it happened in 1803 and we've had to contend with it ever since.

 

[oggbashan]

...
There's a lot to be said for that, actually. The UK's track record on human rights and civil liberties is good enough to cast doubt on the Framers' estimate of the value of separation of powers.

However, AIUI "unconstitutional" is not an entirely meaningless concept in British law. Courts cannot overturn acts of Parliament as unconstitutional because there is no written constitution against which to examine them; but they can rule that this is an unconstitutional trial. They might, though I'm not sure on this point, even be able to rule that this is an unconstitutional executive order or action, if it goes against the generally understood norms of the British constitutional system.

That's what the UK Supreme Court did with Brexit. On a strict interpretation of constitutional law they decided that the Prime Minister could not invoke Article 50 to cause Brexit. Parliament had to agree first because when the UK joined the EU it was by Act of Parliament, and only Parliament can change an Act of Parliament.

The issue was not whether or not to invoke Article 50 but WHO could do it.

The Prime Minister and cabinet were relying on Henry VIII's ruling that the Monarch could change any law because it was the Monarch's law. Technically that might be possible under the English constitution. The Supreme Court ruled that it was not legal in this particular case.

Henry VIII's ruling allows for the British equivalent of the US President's Executive Orders but traditionally it has been reserved for minor and insignificant matters which Brexit certainly wasn't.

 

[Christobal]

OK you are the guy I would ask. The web tells me no. Does the UK have an actual written down document called a constitution.

 

[ishtat]

OK you are the guy I would ask. The web tells me no. Does the UK have an actual written down document called a constitution.

No it does not. But read the wiki article on Bill of Rights 1689 and subsequent legislation.

You will notice that certain provisions of the 1689 bill were written into the US constitution but later cancelled in UK by legislation, for example the right to bear arms.

In UK, Parliament is Sovereign and can change anything through legislation. One of the chief arguments of the Brexiteers was that the EU had 'taken' sovereignty from the UK Parliament. In fact of course Parliament had conceded some sovereignty - excepting the right to take it back - which of course flummoxed the Brussels dictat.

 

[Christobal]

No it does not. But read the wiki article on Bill of Rights 1689 and subsequent legislation.

You will notice that certain provisions of the 1689 bill were written into the US constitution but later cancelled in UK by legislation, for example the right to bear arms.

In UK, Parliament is Sovereign and can change anything through legislation. One of the chief arguments of the Brexiteers was that the EU had 'taken' sovereignty from the UK Parliament. In fact of course Parliament had conceded some sovereignty - excepting the right to take it back - which of course flummoxed the Brussels dictat.

Nice explanation.

 

[Colonel Hogan]

Seems to me appellate jurisdiction is the power to review a lower court decision, original jurisdiction is the right of a given court to hear a case first, but the term or concept of "judicial review" isn't in the Constitution. Yes, Marshall said the court had the right to say "what the law is," But I suggest there is no power to say what it isn't. When the court assumes it does, it then introduces a concept of "judicial supremacy," which isn't in the Constitution either.

Writing as “Publius” in Federalist No. 78 Alexander Hamilton, asserted:

“the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution,” because the courts — lacking the legislature’s power of the purse or the executive’s “sword of the community” — have “neither Force nor Will, but merely judgment.”

We know today, because of Marbury v Madison, those words and that founding concept, no longer have legal validity. We know now that plenary powers granted to the Legislature and the Executive by the Constitution itself only exist in theory, not legal reality, as we saw in the case of Trump's travel ban. This is the danger of "judicial review" in that it usurps the constitutional authority of the political branches of government for itself creating a judicial supremacy not contemplated by the Founders. Today we have a court that sits like a super-legislature over the 50 states and both political branches of the Federal government second guessing every decision and policy.

When a court rules against a democratically enacted law without a solid constitutional basis, it is, in fact, making a raw political decision that is outside its Constitutional authority. I view "Judicial Review" as the slippery slope that enabled such things as the limitless expansions of Congress's power under the Commerce Clause that have led us to the monolithic federal state that looms before us today. Just my thought.

PS: The reason it's not constitutionally novel is it happened in 1803 and we've had to contend with it ever since.

With all due respect, I think you are confusing two different concepts, and overstating the second.

With regard to the alleged non-existent power to "say what the law isn't," if a higher appellate court overrules a lower court ruling on a specif point of law (because as we all know appellate courts only decide points of law and NOT the facts of the case already adjudicated at trial), the higher court has most assuredly told the lower court "what the law isn't." Namely, it isn't that which was previously held. It's a distinction without a difference. More pointedly, however, the First Amendment says, among other things, "Congress shall make no law respecting......prohibiting......or abridging...." So, what if it happens to do exactly that? Shall the courts be powerless to sanction the violation of Constitutional protections? If not, how shall they affect their authority to "say what the law IS" apart from reviewing and passing judgment on the offending legislation that Congress passed? At the most basic level, that's all judicial review is.

Which brings me to your overstatement of the second concept. Judicial review does not inherently "usurp constitutional authority ....by creating for itself a judicial supremacy." It only does that when it is employed incorrectly. And that is the crux of Scalia argument with respect to those judges who apply a "living Constitution" philosophy of "interpretation." It really isn't interpretation at all. It's imposition. And certainly there is nothing in the Constitution that imbues the judiciary with that right.

I just don't believe that abomination should serve to indict the quite essential function of properly administered judicial review.

 

[Rightguide]

With all due respect, I think you are confusing two different concepts, and overstating the second.

With regard to the alleged non-existent power to "say what the law isn't," if a higher appellate court overrules a lower court ruling on a specif point of law (because as we all know appellate courts only decide points of law and NOT the facts of the case already adjudicated at trial), the higher court has most assuredly told the lower court "what the law isn't." Namely, it isn't that which was previously held. It's a distinction without a difference. More pointedly, however, the First Amendment says, among other things, "Congress shall make no law respecting......prohibiting......or abridging...." So, what if it happens to do exactly that? Shall the courts be powerless to sanction the violation of Constitutional protections? If not, how shall they affect their authority to "say what the law IS" apart from reviewing and passing judgment on the offending legislation that Congress passed? At the most basic level, that's all judicial review is.

Which brings me to your overstatement of the second concept. Judicial review does not inherently "usurp constitutional authority ....by creating for itself a judicial supremacy." It only does that when it is employed incorrectly. And that is the crux of Scalia argument with respect to those judges who apply a "living Constitution" philosophy of "interpretation." It really isn't interpretation at all. It's imposition. And certainly there is nothing in the Constitution that imbues the judiciary with that right.

I just don't believe that abomination should serve to indict the quite essential function of properly administered judicial review.

Let me ask you a question. Was Trump's first travel ban decided on the merits of the law? How about the second? In the area of immigration and in foreign policy, the Constitution gives "plenary" power to the Congress and the Executive. Which means to me the founders intended no role for the judiciary in these political matters; yet here we are with a federal judge and an appellate court second-guessing the President's motives, the past history of his public remarks, substituting their foreign policy acumen for his, and stopping him from acting in his CinC role while ignoring the underlying legal basis under long established immigration law. Did the court make a political decision or a legal decision?

 

[Hard_Rom]

The UK governing system has evolved quite a bit since the American Revolution. The party system was relatively new. The PM was pretty much a king's man. American constitution is very idealistic. Probably contains a few fixes the early primitive UK democratic system has now evolved.

The UK, Canada, Australia and New Zealand do not have the separation of powers like the US and are hardly less democratic. Belgium ran for a while without a democratically elected government.

Separation of powers and democracy are not requisites for a benevolent government. Nice safeguards but not required.

A country, after all, is not something you build as the pharaohs built the pyramids, and then leave standing there to defy eternity. A country is something that is built every day out of certain basic shared values.

Pierre Trudeau

 

[Colonel Hogan]

Let me ask you a question. Was Trump's first travel ban decided on the merits of the law? How about the second? In the area of immigration and in foreign policy, the Constitution gives "plenary" power to the Congress and the Executive. Which means to me the founders intended no role for the judiciary in these political matters; yet here we are with a federal judge and an appellate court second-guessing the President's motives, the past history of his public remarks, substituting their foreign policy acumen for his, and stopping him from acting in his CinC role while ignoring the underlying legal basis under long established immigration law. Did the court make a political decision or a legal decision?

You're not going to like this answer, and in some ways I'm a little squeamish as to how I know it is going to sound to you. But I know I'm right.

Technically, yes, the federal courts did make a legal decision, but in both cases where they ruled against the plenary power you identified, they made their ruling very poorly. But that doesn't mean it wasn't a legal decision or that they did not have proper authority to make it.

Any civil suit brought before a court is first reviewed for "standing" (locus standi) to determine if the petitioner has legal grounds for bringing the suit forth, and if the court has appropriate jurisdiction to hear the case and grant relief. If that standing is found to exist and the court believes it has proper jurisdiction, then it will hear the case. Neither of these two elements were preempted by the Constitutional authority you correctly identified and would serve to prevent a court from hearing that case. BOTH of these elements, however, ARE reviewable as a matter of law at the next level and could well be the basis for overturning that court's decision. That's how the law works.

But it should have been more than enough to result in a ruling in favor of the President's executive order -- with the possible exception of restrictions against valid Green Card holders. Those individuals, by virtue of having previously cleared a specific immigration hurdle were entitled to a due process under the very immigration regulations by which they gained their cards. But foreign visa applicants with no prior relationship with the United States were more than covered by the plenary Constitutional power granted to Congress including that which it ceded to the President legislatively.

And frankly, I believe that proper legal finding would have ultimately been upheld under further appeals.

But you are wrong that the unarguable authority which the Constitution gives Congress in immigration matters PRECLUDES that authority from being the subject of a lawsuit.

ANY law, and the vast majority of the Constitution itself, is and has been subject to judicial review when the law or Constitution has been applied by one party to another and the second party has taken the position that the law has been applied illegally or is unconstitutional on its face.

The United States judicial system exists, in part, for that very purpose.

 

[Rightguide]

You're not going to like this answer, and in some ways I'm a little squeamish as to how I know it is going to sound to you. But I know I'm right.

To me it's not a matter of being right or wrong or upset about how something sounds. I'm way past that and have been since activist judges discovered, unbeknownst to the authors, a right of abortion lurking in the 14th Amendment, an amendment that has been converted into a trove of justifications for liberal agenda items not possible through the democratic legislative process. So I come to this discussion knowing the courts legislate from the bench, as they have, when they construct penumbras in the law that have nothing to do with the intention of its authors.

Technically, yes, the federal courts did make a legal decision, but in both cases where they ruled against the plenary power you identified, they made their ruling very poorly. But that doesn't mean it wasn't a legal decision or that they did not have proper authority to make it.

It would seem a "legal decision" was made only because the "political" decision was made in a court of law, not because the actual legal authority of the President under Section 212(f) of the Immigration and Nationality Act (8 U.S. Code § 1182 )was discussed or commented on, but simply ignored in order to reach that "political" decision. Washington State argued the President was constrained by U.S.C. § 1152(a)(1)(A), which states:

“no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Which doesn't address Presidential authority under the previously mentioned statute and the fact that even if an alien is issued a valid visa, he is subject to being denied admission to this country when he arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010). There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of the Order under § 1182(f).

In Justice Jackson’s words regarding plenary powers in general:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.[2] In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."

The 9th Circuit didn't even apply a presumption of constitutionality and it ignored completely Justice Jackson's Youngstown framework in order to apply a political remedy.

Any civil suit brought before a court is first reviewed for "standing" (locus standi) to determine if the petitioner has legal grounds for bringing the suit forth, and if the court has appropriate jurisdiction to hear the case and grant relief. If that standing is found to exist and the court believes it has proper jurisdiction, then it will hear the case. Neither of these two elements were preempted by the Constitutional authority you correctly identified and would serve to prevent a court from hearing that case. BOTH of these elements, however, ARE reviewable as a matter of law at the next level and could well be the basis for overturning that court's decision. That's how the law works.

Here's how the law used to work. In order that a lawsuit be sustained a plaintiff must demonstrate standing. Plaintiffs must show actual injury or harm that is imminent and irreparable, not speculative. In my humble opinion and the opinion of others, Washington State demonstrated no such injury, other than vague claims that companies like Microsoft were injured because they wouldn't be able to establish an immigration policy that fit their business model. Essentially a veiled rejection of federal sovereignty over immigration.

But it should have been more than enough to result in a ruling in favor of the President's executive order -- with the possible exception of restrictions against valid Green Card holders. Those individuals, by virtue of having previously cleared a specific immigration hurdle were entitled to a due process under the very immigration regulations by which they gained their cards. But foreign visa applicants with no prior relationship with the United States were more than covered by the plenary Constitutional power granted to Congress including that which it ceded to the President legislatively.

I agree, but the notion that the President cannot ban immigration from a country just because the majority living there are of a single religion, and therefore becomes a ban on religion, is absurd on its face. A Visa does not allow a foreign citizen entry into the United States, it only allows travel to the the Port of Entry where the Immigration Dept or Homeland Security either authorizes or denies admission into the United States.

And frankly, I believe that proper legal finding would have ultimately been upheld under further appeals.

The fact that the 9th Circuit refused an En Banc hearing and upheld Robart's original order indicates the kind of insult to the actual law that activist jurists represent. In addition, an unusual dissent of five judges in the 9th Circuit Court was issued. They noted among other things the ruling in support of Robart, “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) where the Court stated the following:

“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.”

The dissent also agreed with the ruling in the Boston court supporting the President's travel ban which ruled:

“so long as there is one facially legitimate and bona fide reason for the President’s actions, our inquiry is at an end.”

Which supports my contention that within the plenary powers of the Executive or the Legislature there is no role for the judiciary.

But you are wrong that the unarguable authority which the Constitution gives Congress in immigration matters PRECLUDES that authority from being the subject of a lawsuit.

the standard for standing for a lawsuit by the state against the federal government are narrow and well defined and I'll go out on a limb and say the SCOTUS will point out the lack of standing of the state of Washington in the case at hand. As I have previously shown.

Anybody can file a suit, but the courts have a responsibility to throw out cases that lack standing or are totally frivolus to longstanding jurisprudence. Just my opinion. Without plenary power granted to the Executive and the Legislative, the judicial branch would control the government completely to both legal and political issues. The "political question doctrine" would be out the window.

ANY law, and the vast majority of the Constitution itself, is and has been subject to judicial review when the law or Constitution has been applied by one party to another and the second party has taken the position that the law has been applied illegally or is unconstitutional on its face.

Since 1803 this goes without saying, but that doesn't mean we'll find the term in the Constitution or likewise any contemplation of an establishment of Judicial Supremacy. Nor will we find a judicial amendment process for the plenary powers of the Legislature or the Executive.

When we maintain the courts inherently "interpret the law" we are then saying the intent of Congress and the plain black letter of the law are superfluous and subordinate to the judgement of the court, who are in practice, politically immune.

 

[KingOrfeo]

Now I am totally confused Britain does not have a constitution but things can be found unconstitutional. I looked it up but I still don't get it.

Well, I recall a courtroom scene from Breaker Morant -- three Australian soldiers in the Boer War are charged with murdering Boer POWs; they appear before a British Army court-martial; their lawyer protests that "This trial is unconstitutional" because Australia has been granted dominion status, therefore Australians can only be tried in an Australian court. The judge or presiding officer rejects that argument, I forget on what grounds, but definitely not on the grounds that "unconstitutional" is a meaningless concept in British law.

 

[KingOrfeo]

AAAAAAAAHAHAHAHAHA!! And there is that famous lefty arrogance and self importance.

Ever the smug assholes.

It is not lefty arrogance to assert that only lawyers are really competent to interpret the law, the same way only doctors are really competent to interpret your symptoms.

 

[KingOrfeo]

Writing as “Publius” in Federalist No. 78 Alexander Hamilton, asserted:

“the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution,” because the courts — lacking the legislature’s power of the purse or the executive’s “sword of the community” — have “neither Force nor Will, but merely judgment.”

And judicial review is judgment.

 

[Rightguide]

And judicial review is judgment.

I had a feeling the whiff of the totalitarianism of judicial supremacy present in the concept of judicial review would appeal to you.

 

[Rightguide]

It is not lefty arrogance to assert that only lawyers are really competent to interpret the law, the same way only doctors are really competent to interpret your symptoms.

Yes, lawyers have succeeded in encrypting the 7591 words of plain and simple English contained within the prose of the Constitution into an arcane bibliotheca of codified jurisprudence and legalese, containing millions upon millions of words, only they understand.

 

[KingOrfeo]

Yes, lawyers have succeeded in encrypting the 7591 words of plain and simple English contained within the prose of the Constitution . . .

. . . all of which, as legal terminology, may have other than common meaning.

 

[KingOrfeo]

I had a feeling the whiff of the totalitarianism of judicial supremacy present in the concept of judicial review would appeal to you.

Irrelevant. Judicial review is judgment; in a system with a written constitution, judicial review cannot logically be excluded from the scope of a court of law's discretion.

 

[Rightguide]

. . . all of which, as legal terminology, may have other than common meaning.

Yes, unlike the Constitution.