Sadistic_Bastard said:
I'm not sure I am understanding the question. In my example, the Amendment trumps the later law, and the court would have to find the law unconstitutional. Did you mean the Amendment?
But what if they don't? You say that they would "have to" find the law unconstitutional, but what if they just decide not too, ignoring the amendment in question?
In reality, the case would have been decided by lower courts already. The SCOTUS could decline to hear the case, but that would be a de facto ruling that merely affirmed what the lower courts ruled. If they took the case, I have a hard time believing that 9 people would refuse to consider an Amendment in the deliberations. Anything that that would give rise to that sort of action would never pass in the first place.
In theory, there is nothing other than the Executive branch that could enforce a court ruling. If the President failed to enforce a ruling, it might give Congress grounds for impeachment, but I haven't studied the Constitution closely enough to be able to answer that question.
dead_ringer said:
i wasn't picking a fight and i'm sorry that you took it as such. what i disagreed with (which is why i said "partially incorrect") was your assertion that the political branches can always enforce their will on the court - i assume you meant by constitutional amendment - while this is partially true, there are numerous instances when congress has tried to force the court into its understanding of an issue and the court has had none of it - and we go on with no crisis...
as to the second part: that's why i said "significant" instances, and there have not been many cases of unenforcement. if you know of some, provide examples of such, and i will gladly concede.
again, not being combative, just disagreeing.
1) I'm not being combative, this is what is known as argument or debate. You present your side, I present my side, then we discuss the points to find who has a more cogent argument. It's not personal.
2) You didn't seem to read my post, or if you did just skimmed through it without trying to understand what I said. At no time did I claim that "the political branches can always enforce their will on the court", what I said was that the lack of power to enforce their decisions is a check against judicial abuse, and that the final check always exists with the elected delegates.
3) I would consider any instance in which the government ignored the courts decisions to be significant, before I provide examples, what is your criteria for it being a "significant" occurance?
1. oh, i didn't think you were being combative. i just didnt want this to turn into an insult of each other's intelligence/understanding fest. and i know what an argument is, especially cogent legal argument, and i know you do too so let's get past that.
2. perhaps i was unclear as to your statement previously, but from your other statements it seems that you are arguing that the political branches always have the final say in an issue of constitutionality. "always" meaning in every case... i would argue that the political branches only have this say in the event of a constitutional amendment, which since the bill of rights has been exceedingly rare. traditionally amendments have been passed to further voting rights, prohibit undue discrimination, and to put in place non substantive procedures. they have not generally been passed to limit or restrict liberty or to push a political agenda. furthermore, states have next to no power to enfroce their will against a federal court ruling - save intense petition for a constitutional amendment, which hasn't really occured since the passage of the 11th amendment (immunites of states from suit). our constitutional history since Marbury has affirmed the finality of a supreme court holding and respect of the executive and congress of those opinions. while it is techincally possible for congress to check the court, traditionally judicial review has been the rule.
of course good faith on the part of the president and the congress is essential.
3. i would say that "significant" instances would involve matters of federal and state legislation (especially commerce powers and spending powers), matters of due process and equal protection, states' rights, etc. i would include cases like Cherokee Nation where the gov of georgia and honor and president jackson refused to enforce the holding initially, but eventually did.
i love con law discussions and it is my focus these days. if you know of instance of unenforcement i welcome a presentation of those instances so as to further my understanding of constitutional history. i assume you agree that unenforcement by the executive is inherently bad. if not i welcome that discussion as well.
Michael_DeSade
Seattle, WA
OLD SKOOL
NOV 28, 2004 04:53 PM