Bill of Rights and SCOTUS

Discussion in 'Off-topic Political' started by Mrs_Esterhouse, Jul 7, 2016.

  1. Mrs_Esterhouse

    Mrs_Esterhouse Swollen Member

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    Does SCOTUS have the power to declare the Bill of Rights null and void due to a "compelling government interest"?
     
  2. XDM40

    XDM40 Active Member

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    I don't think so but it won't stop them from trying.
     

  3. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Sure they do. That is the first part of the strict scrutiny analysis. See Korematsu v. United States. Concentration camps = A-OK.
     
  4. Mrs_Esterhouse

    Mrs_Esterhouse Swollen Member

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    I suspected so. Excuse me :puke:
     
  5. GoDores

    GoDores Like a Boss

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    SCOTUS has upheld many laws that seem to me to pretty clearly violate the plain text of the Bill of Rights. Even the "strict scrutiny" standard allows the court to uphold laws that violate the Constitution if the government proves it's really, really important and there's no better way to do what they want to do. So I think the clear answer to your question is "yes, it has that power and exercises it frequently."

    On the other hand, SCOTUS has no explicit Constitutional authority to rule on the constitutionality of laws in the first place. If Marbury v. Madison had been decided differently, it's possible that SCOTUS would not have the authority to apply judicial review, and no law could ever be overturned in the courts for violating the Constitution. So the alternative question is "does SCOTUS have the power to nullify laws that violate the Bill of Rights?", and the current answer is "yes, it has that power and exercises it at least some of the time", which is probably better for our rights than "no, it doesn't have that power."
     
  6. phaed

    phaed Active Member

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    SCOTUS doesn't even have the authority to interpret the constitution, much less declare parts of it void. they illegitimately gave themselves that authority not long after the constitution was signed (marbury vs madison).

    government disregarding the law and over-reaching for power didn't just begin recently. it has been their very nature from the beginning.
     
  7. Rugerer

    Rugerer GeePeeDoHolic

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    Declaring the entire BoR "null and void" is a bit far-reaching. In this particular case, they ruled against the government, as the penalty (loss of citizenship) was not constructed to provide the citizen with due process guaranteed in the 5A. But their statement below declares that the government absolutely has the powers delegated to it.

    Kennedy v. Mendoza-Martinez
    372 U.S. 144 (1963)
    https://supreme.justia.com/cases/federal/us/372/144/case.html

    Just declare an act "necessary and proper" and you're golden.

     
  8. EJR914

    EJR914 Cheezburger Operator

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    This. Also, thanks for the info, MP.

    Government has been over-reaching since the beginning when it was created, shortly after 1776.