Wednesday, September 29, 2010

All Three Branches Determine Constitutionality Of Legislation:

I have to agree with Ramesh Ponnuru here. Congressmen take an OATH to uphold the Constitution. They exercise their power of "legislative review" by NOT WRITING OR VOTING FOR BILLS which they think violate the Constitution. If they don't do this, they shouldn't be in Congress. If an unconstitutional bill gets by them, the President should veto it because he too takes an oath to uphold the Constitution. And if it goes that far, SCOTUS should strike it down. That way all 3 branches of government get to determine the constitutionality of legislation. The Court just gets the last say.


Democratic-Republican said...

I believe that this was Jefferson's idea in a sense. He believed that all three branches had equal powers in determining what is constitutional (and this is why, I believe, that original intent is a myth since today's populous gets to interpret the constitution in light of today's culture). However, Jefferson did not support judicial review where the Court gets the last say. My question to you would be, who should get the last word?

It cannot be a majority since then minority rights would be violated. It cannot be the President since the nation would be a monarchy. Should we just view the judicial branch as an institution that determines what the current law says and it is up to Congress to change the law? Again, would this risk the idea that Congress could undermine minority rights?

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