People often tell me I wouldn't hate SCOTUS so much of it was more liberal. I just reiterate to them that no unelected, serving for life, body of judges should be the final arbiters of what is and isn't law. It's just a bad system.
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The serving for life part is bad. The no judicial review ideas though are bonkers. Even the UK, with no constraints on parliament’s law, has judges do statutory review of executive actions. But no statutory review means exec only limited by morals or public revolt.
aug 10, 2025, 1:45 am • 8 0 • view
Judicial review was a concoction of Marshall's that isn't nearly as sacrosanct as we tend to think of it today. I am more in line with Hamilton, who also argued that a bill of rights could be inherently dangerous, and who I think is correct when we look at how judicial review has been applied.
aug 10, 2025, 1:53 am • 4 0 • view
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.”
aug 10, 2025, 1:58 am • 3 0 • view
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.
aug 10, 2025, 2:02 am • 1 0 • view
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.
aug 10, 2025, 2:15 am • 3 0 • view
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.
aug 10, 2025, 2:17 am • 0 0 • view
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.
aug 10, 2025, 2:17 am • 1 0 • view
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.
aug 10, 2025, 2:20 am • 0 0 • view
I don't think we're actually disagreeing all that much, just presenting two different options of a possible outcome.
aug 10, 2025, 2:21 am • 0 0 • view
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.
aug 10, 2025, 2:29 am • 1 0 • view
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.
aug 10, 2025, 2:38 am • 1 0 • view
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.
aug 10, 2025, 2:02 am • 0 0 • view
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.
aug 10, 2025, 2:06 am • 1 0 • view