I have a Constitutional question

[Leftest]

I have been racking my brain trying to figure out how certain laws are allowed to exist without being totally shot down the moment they're brought up. Am I missing something after I read the Constitution and some landmark Supreme Court cases?

Like for example: In pertaining to the USA Patriot Act. After reading Marbury v. Madison and not finding any Constitutional Amendments granting the federal government jurisdiction to usurp the Fourth, Sixth and Eighth Amendments as well as one's attorney/client and doctor/patient privilege.

Am I wrong in interpreting Marbury v. Madison as stating that NO legislative Act may override the US Constitution? Also, that each branch of government ONLY has powers granted to them by the Constitution? In other words: If there's no Constitutional Article or Amendment pertaining to a certain subject, then the federal government has NO jurisdiction in such matters?

If that be the case. Then how the fuck is the USA Patriot Act allowed to exists? Am I incorrect? Am I missing something? Or is it just that our government isn't a government of the US Constitution?

A foot note to this topic, as far as I am concerned, is also the Controlled Substance Act and asset seizure laws. I mean I don't see any Constitutional Amendment granting the federal government any jurisdiction in matters concerning drug use the way it had a Constitutional Amendment granting jurisdiction in matters concerning alcohol use after the Eighteenth Amendment was ratified. Nor do I see any Constitutional Amendment eliminating one's Fifth Amendment right not to be deprived of property without due process of law - which is what current asset seizure laws do.

Am I wrong on all this? Or is our government a big lie?

Excerpt from Marbury v. Madison

The question, whether an Act repugnant to the Constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if Acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or, that the legislature may alter the Constitution by an ordinary Act.

Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative Acts, and, like other Acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an Act of the legislature, repugnant to the Constitution, is VOID.



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[tk2kewl]

1. I believe you need a plaintiff to establish standing and then pursue

the case. And that plaintiff may need to navigate the entire legal system exhausting all appeals before the case can be appealed to the SCOTUS.

[pinto]

2. Marbury v Madison

http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

Marbury v. Madison (1803)
Just as George Washington helped shape the actual form that the executive branch would take, so the third chief justice, John Marshall, shaped the role that the courts would play.

Under the administrations of Washington and his successor, John Adams, only members of the ruling Federalist Party were appointed to the bench, and under the terms of the Constitution, they held office for life during "good behavior." Thus, when the opposing Republicans won the election of 1800, the Jeffersonians found that while they controlled the presidency and Congress, the Federalists still dominated the judiciary. One of the first acts of the new administration was to repeal the Judiciary Act of 1800, which had created a number of new judgeships. Although President Adams had attempted to fill the vacancies prior to the end of his term, a number of commissions had not been delivered, and one of the appointees, William Marbury, sued Secretary of State James Madison to force him to deliver his commission as a justice of the peace.

The new chief justice, John Marshall, understood that if the Court awarded Marbury a writ of mandamus (an order to force Madison to deliver the commission) the Jefferson administration would ignore it, and thus significantly weaken the authority of the courts. On the other hand, if the Court denied the writ, it might well appear that the justices had acted out of fear. Either case would be a denial of the basic principle of the supremacy of the law.

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights. (See Part V.)

For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political Background of Marbury v. Madison (1970).

Chief Justice Marshall's opinion of the Court follows at the link.

http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm

[Zodiak]

3. Yes, it is a big lie

and has been for some years. Know why? Because of our court system. Without the judges actually taking the appropriate cases and ruling according to Constitutional Law, the Legislature can pretty much do what it wants. Of course, on the other side, they would argue that the income tax and social programs would fall under the same category (seizure of property and forcible redistribution of wealth).

The Patriot Act is Law because our government wants it to be, and short of massive civil disobediance, there is nothing we can do about it. The Constitution is only a rag by which the current party in power uses when it suits them, and nothing more. That is what we have learned from the age of Bush.

Our country was sick long before we noticed it; Bush has almost killed it. When we get to the other side of this crisis, we are going to have to totally revamp our social compact or suffer this fate again. A nice government on paper, but not so good in practice.

[Jim__]

4. I believe you're right, but ...

what the Constitution actually means is up to the interpretation of the Supreme Court.

On the issue of property seizure, I believe that the court has already ruled its constitutional - I can't remember the name of the case, so I can't look up their reasoning. The Earl Warren court - in my opinion - definitely would not have allowed this.

On the Patriot Act, I believe there are unconstitutional provisions - but, you need to have standing, and then get the court to agree with you. So far, no one has been able to do that.

[eallen]

5. Two important points.

First, there is no Constitution process defined by which laws are "totally shot down the moment they're brought up." There is a Constitutional process for bringing cases to court. It is an interesting notion that the judiciary or some other body should review laws for their Constitutionality after Congress passes them. But the Constitution doesn't provide for that. It would require an amendment.

Second, many of the powers of Congress are quite far reaching. Consider, for example, the last two:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Those, and previous powers related to defense, pretty clearly give Congress the power to define and prosecute crimes related to national defense, from which it follows that Congress can establish investigative agencies for that purpose, and the procedures for such investigations. That pretty much covers much of the Patriot Act. As a civil libertarian, there are parts of the Patriot Act I'd like to see struck down. But I think those parts run afoul of the Constitution in the Bill of Rights, not in the powers of Congress.