Habeas Corpus goes back much further and is ultimately statutory judicial review. The judge overrides the executive’s determination of somebody’s imprisonment based on how the judge reads the law. Constitutional judicial review is reading the constitution as “supreme law of the land.”
Right, and I'm talking about the constitutional version of it. Or maybe it is more accurate to say Marshall's version of it allowing SCOTUS to be the overseers of legislation being constitutional or not.
There’s Federalist Paper 78 plus state courts did review under state constitutions before Marbury. It seems like you have an odd stance with this and BOR limiting rights, but also having no legal avenue to restrict Congressional actions. Without review, Congress can cancel elections legally.
We are talking about something theoretically that didn't come to pass. Coming to different end points isn't really that strange. I just happen to think that Hamiltons warning about the dangers of a bill of rights have come to pass.
Maybe there’s some law of the jungle where people rise up against Congressional laws overriding natural rights. Or a majoritarian system like UK would be better even with that risk, with only law of the jungle constraints. I don’t see the constraints being better with law of the jungle though.
You seem to discount Congress not acting in a way because it doesn't have authority to do so. This is fine, because we can reasonably presume they would. We can also reasonably presume the courts would exceed themselves as well, by acting as political entities.
I don't think we're actually disagreeing all that much, just presenting two different options of a possible outcome.
I’m okay with a reasoned argument for not having any supermajority reqs for law. Internationally, some countries and some don’t. I do think it’s odd to see so many anti-judicial review arguments after bad rulings, when those rulings are *withholding* review.
I'm not sure why you would find it odd. Our court system is clearly not serving us very well. Neither is our government system. People are exasperated with them and expressing such. I can see why you disagree with the components of them but not why you would find it odd for people to make them.
The anti-BOR arguments were also wrong. Even within the boundaries of Congress’ original powers, Congress could have done trials without due process, star chambers, cruel and unusual punishment, etc. Maybe 9th and 10th are superfluous, but not 1-8.
Disagree. Hamilton argument was that creating a list of "rights" would create a presumption that only these rights apply, and we could be limited to only those. That is very much the argument we see constantly from right wing jurisprudence.