3 ms·

It's funny, my first passing thought was collusion. It's meritless and baseless, but I assume it stems from my finding it frustrating that the courts allow a th

It's funny, my first passing thought was collusion. It's meritless and baseless, but I assume it stems from my finding it frustrating that the courts allow a thing to continue before they rule on its Constitutionality. It would seem to me that stopping unconstitutional behavior by the executive branch should be the most important thing before the court, and something that should not drag out for a decade. So why does the court allow a program that may be violating millions of peoples' constitutional rights to continue, all the while agreeing with and ruling in favor of government stall tactics? It's amazing to me that the court agreed with the executive that they had no right to judge on executive constitutionality! I get that it's procedural, but is it true that there has to be a ruling on something from a lower court before a higher court can even consider it? (And is it weird that they can rule on the procedure of a thing but not a thing?)

rayiner 11y ago
The court respecting its proper role in our tripartite system of government is also an important Constitutional concern. The framers gave primacy to the President and Congress when it came to issues of national security and defense.[1] It's not even clear the framers intended for the government's national security activities to be subject to any form of judicial review, much less that they intended the courts to be empowered to enjoin such activities before even deciding their Constitutionality. [1] With good reason. The U.S. at the time of the founding was a fledgling country, threatened by European powers as well as domestic insurrection. There was great concern that a government with three branches would not be able to cooperate to respond effectively to foreign and domestic threats.
- simoncion 11y ago
  > It's not even clear the framers intended for the government's national security activities to be subject to any form of judicial review... It seems very clear to me that The Framers would have expected that actions taken by the President or authorized by Congress in the name of national security concerns that are unconstitutional -or otherwise illegal- should be subject to Judicial review and subsequent termination. I mean, the alternative is to let the Executive and Legislative have immunity from consequence and freedom from scrutiny, just so long as they make the claim that their actions are for "national security". This would make The Constitution absolutely moot.
  - gdwatson 11y ago
    It's not clear that they intended judicial review at all. Keep in mind that the framers didn't assume permanent political parties, without which Congress and the president would be better able to check each other. And the system lacked any real federal law enforcement, leaving state nullification of federal law a practical possibility even if legally controversial. Judicial review is more important for us than it was for them because we lack so many of those counterweights. But a powerful judiciary introduces its own set of problems.
    - simoncion 11y ago
      > It's not clear that they intended judicial review at all. In 1796 [0] the Supreme Court chose to hear a case [1] challenging the constitutionality of an act of Congress. This was Judicial review of Legislative power. Alexander Hamilton [2] argued on behalf of the US Government. I respectfully disagree with your opinion. [0] 219 years ago, and only twenty years after the founding of the country. [1] https://en.wikipedia.org/wiki/Hylton_v._United_States https://en.wikipedia.org/wiki/Hylton_v._United_States [2] A Founding Father
      - gdwatson 11y ago
        On further reading it looks like most of the convention delegates favored the concept, though of course there are always dissenters. I stand corrected. But I stand by my point about the loss of other balances within and against federal power.
- jon_richards 11y ago
  Wouldn't the third amendment be a good example of judicial powers over the executive branch?

rayiner 11y ago

The court respecting its proper role in our tripartite system of government is also an important Constitutional concern. The framers gave primacy to the President and Congress when it came to issues of national security and defense.[1] It's not even clear the framers intended for the government's national security activities to be subject to any form of judicial review, much less that they intended the courts to be empowered to enjoin such activities before even deciding their Constitutionality. [1] With good reason. The U.S. at the time of the founding was a fledgling country, threatened by European powers as well as domestic insurrection. There was great concern that a government with three branches would not be able to cooperate to respond effectively to foreign and domestic threats.

simoncion 11y ago
> It's not even clear the framers intended for the government's national security activities to be subject to any form of judicial review... It seems very clear to me that The Framers would have expected that actions taken by the President or authorized by Congress in the name of national security concerns that are unconstitutional -or otherwise illegal- should be subject to Judicial review and subsequent termination. I mean, the alternative is to let the Executive and Legislative have immunity from consequence and freedom from scrutiny, just so long as they make the claim that their actions are for "national security". This would make The Constitution absolutely moot.
- gdwatson 11y ago
  It's not clear that they intended judicial review at all. Keep in mind that the framers didn't assume permanent political parties, without which Congress and the president would be better able to check each other. And the system lacked any real federal law enforcement, leaving state nullification of federal law a practical possibility even if legally controversial. Judicial review is more important for us than it was for them because we lack so many of those counterweights. But a powerful judiciary introduces its own set of problems.
  - simoncion 11y ago
    > It's not clear that they intended judicial review at all. In 1796 [0] the Supreme Court chose to hear a case [1] challenging the constitutionality of an act of Congress. This was Judicial review of Legislative power. Alexander Hamilton [2] argued on behalf of the US Government. I respectfully disagree with your opinion. [0] 219 years ago, and only twenty years after the founding of the country. [1] https://en.wikipedia.org/wiki/Hylton_v._United_States https://en.wikipedia.org/wiki/Hylton_v._United_States [2] A Founding Father
    - gdwatson 11y ago
      On further reading it looks like most of the convention delegates favored the concept, though of course there are always dissenters. I stand corrected. But I stand by my point about the loss of other balances within and against federal power.
jon_richards 11y ago
Wouldn't the third amendment be a good example of judicial powers over the executive branch?