In the 90's the Ohio Supreme court ruled that the schools in Ohio are unconstitutionally funded. Today we have the same system.

So maybe there is a way to ignore the Supreme court and some of its dumb decisions.

The Ohio constitution of 1851 at Article 6, Section 2, provided:

Sec. 2. The general assembly shall make such provisions, by taxation or otherwise, as, with the interest arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the State; but no religious or other sect or sects shall ever have any exclusive right to or control of any part of the school funds of this State.

The Ohio Supreme Court issued four opinions on school system and funding from 1997 thru 2002, known as DeRolph I thru IV.

The problem is that feel-good bullshit was inserted into the state constitution. Consider if the Federal Constitution had said, "the Congress shall make such provisions as will secure a thorough and efficient system of health care throughout the nation." It sounds good, it would be the organic law of the land, but what the hell would it mean in a legal sense?

An Amendment could be made to the Federal constitution requiring the legislature to fully fund Medicare, Medicaid, Social Security and whatever else one may choose to throw in there. And if the money does not exist, then what? On its face, the Ohio provision requires funding without regard to what funds are available, and to achieve an unclear result. The Court seems unable to define, in specific terms, what they require.

In DeRolph, the court took the case and then did not know what to do with it.

The Opinion of the Court is given below in full. In the dissenting opinion of MOYER, C.J., paragraphs 34 to 38:

{¶34} Unfortunately, the majority today issues an opinion that ignores as many questions as it decides. It thereby evades its fundamental responsibility to resolve a dispute it agreed five years ago to resolve and leaves the citizens of Ohio with a decision that can at best be described as ambiguous.

{¶35} As a result, it is virtually inconceivable that today’s judgment will, in fact, end litigation relative to the constitutionality of Ohio’s current schoolfunding system. The issues will almost certainly again come before this, or another, Ohio court. I write today in anticipation of that unfortunate eventuality. Specifically, I write to reiterate that I do not consider dicta contained in DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733 (“DeRolph I”), or DeRolph v. State (2000), 89 Ohio St.3d 1, 728 N.E.2d 993 (“DeRolph II”), to constitute the law of this case or controlling precedent.

{¶36} Unlike the majority, I do not believe the creation of a “complete systematic overhaul” to be the “core constitutional directive of DeRolph I,” majority opinion at ¶ 5, nor do I believe that the General Assembly is constitutionally required to make such an overhaul. See DeRolph III, 93 Ohio St.3d at 312, 754 N.E.2d 1184 (“It is the law contained in the syllabi to DeRolph I and DeRolph II and the principles established by court entry in the case at bar by which we are required to evaluate the constitutionality of the school-funding system now statutorily in place” [emphasis added]). Indeed, today’s majority opinion at ¶ 2 acknowledges that DeRolph I did “ ‘neither more nor less than the syllabus law sets forth,’ ” quoting DeRolph I, 78 Ohio St.3d at 262, 677 N.E.2d 733 (Pfeifer, J., concurring).

{¶37} The majority today vacates our decision in DeRolph III, replaces it with little more than a summary proclamation of a change of “collective mind,” declares the current school-funding system unconstitutional, and proclaims DeRolph I and II to be the law of the case. It thereby returns the parties (and all Ohio citizens) to the uncertain positions in which they stood two and one-half years ago on May 11, 2000, when DeRolph II was decided, with one exception: the majority fails to retain jurisdiction of the cause by the courts as it did after both DeRolph I and DeRolph II. In so doing, it implicitly declares this case concluded, yet does so without fully disposing of the issues that have developed during the litigation.

{¶38} The court in DeRolph I stayed the effect of its decision for 12 months and remanded the cause to the trial court, which was granted plenary jurisdiction to enforce that decision. Id., 78 Ohio St.3d at 213, 677 N.E.2d 733. Shortly thereafter, this court answered in the negative the trial court’s question whether the Supreme Court should “retain exclusive jurisdiction of the case to review all remedial legislation enacted.” DeRolph v. State (1997), 78 Ohio St.3d 419, 678 N.E.2d 886.

In DeRolph IV below, the majority made believe they solved the problem by pronouncing at paragraph 5, "we direct the General Assembly to enact a school-funding scheme that is thorough and efficient, as explained in DeRolph I, DeRolph II, and the accompanying concurrences."

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http://www.sconet.state.oh.us/rod/docs/pdf/0/1997/1997-ohio-84.pdf

DeRolph I, 51 pp.

DeRolph v. State, 78 Ohio St.3d 193, 1997

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http://www.sconet.state.oh.us/rod/docs/pdf/0/2000/2000-ohio-437.pdf

DeRolph II, 82 pp.

DeRolph v. State, 89 Ohio St.3d 1, 2000-Ohio-437

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http://www.sconet.state.oh.us/rod/docs/pdf/0/2001/2001-ohio-1343.pdf

DeRolph III, 108 pp.

DeRolph v. State, 93 Ohio St.3d 309, 2001-Ohio-1343

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http://www.sconet.state.oh.us/rod/docs/pdf/0/2002/2002-ohio-6750.pdf

DeRolph IV, 25 pp.

DeRolph v. State, 97 Ohio St.3d 434, 2002-Ohio-6750

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DeRolph IV, Opinion of the Court (only)

DEROLPH ET AL., APPELLEES, v. THE STATE OF OHIO ET AL., APPELLANTS.

[Cite as DeRolph v. State, 97 Ohio St.3d 434, 2002-Ohio-6750.]

Constitutional law — Education — Schools — Current school-funding system unconstitutional —General Assembly directed to enact a school-funding scheme that is thorough and efficient.

(No. 1999-0570 — Submitted October 30, 2001 — Decided December 11, 2002.)

Common Pleas Court of Perry County, No. 22043.

ON MOTION FOR RECONSIDERATION.

__________________

PFEIFER, J.

{¶1} In DeRolph v. State (2001), 93 Ohio St.3d 309, 310, 754 N.E.2d 1184 (“DeRolph III”), this court issued an opinion with which none of the majority was “completely comfortable.” As the author, Chief Justice Moyer, noted, we did so in an attempt to eliminate the “uncertainty and fractious debate” occasioned by our continued role in the case. Id. at 311, 754 N.E.2d 1184. A motion was filed asking this court to reconsider its decision. We granted that motion and ordered a settlement conference pursuant to S.Ct.Prac.R. XIV(6)(A). DeRolph v. State (2001), 93 Ohio St.3d 628, 758 N.E.2d 1113. Settlement efforts were unavailing, and we now rule on the merits of the case on reconsideration.

{¶2} In DeRolph v. State (1997), 78 Ohio St.3d 193, 677 N.E.2d 733, syllabus, (“DeRolph I”), this court stated, “Ohio’s elementary and secondary public school financing system violates Section 2, Article VI of the Ohio Constitution, which mandates a thorough and efficient system of common schools throughout the state.” In DeRolph I, this court admonished the General Assembly to create a new school-funding system, but otherwise provided no specific

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guidance as to how to enact a constitutional school-funding system. Id. at 213, 677 N.E.2d 733. See id. at 262, 677 N.E.2d 733 (Pfeifer, J., concurring) (the majority opinion “does neither more nor less than the syllabus law sets forth”).

{¶3} Three years later, after the General Assembly had enacted various changes to the school-funding system, this court again determined that the schoolfunding system was unconstitutional. DeRolph v. State (2000), 89 Ohio St.3d 1, 728 N.E.2d 993 (“DeRolph II”). We stated, “ ‘[T]he sovereign people made it mandatory upon the General Assembly to secure not merely a system of common schools,’ but rather a thorough and efficient system of common schools. Miller v. Korns (1923), 107 Ohio St. 287, 297-298, 140 N.E. 773, 776, approved and followed.” DeRolph II, paragraph one of the syllabus. As in DeRolph I, the majority did not provide specific guidance to the General Assembly as to how to enact a constitutional school-funding system. But, see, DeRolph II at 47, 728 N.E.2d 993 (Pfeifer, J., concurring). Some of us praised the efforts of the General Assembly, and that praise was deserved. Id. at 41, 728 N.E.2d 993 (Douglas, J., concurring).

{¶4} We are aware of the difficulties that the General Assembly must overcome, and that is why we have been patient. The consensus arrived at in DeRolph III was in many ways the result of impatience. We do not regret that decision, because it reflected a genuine effort by the majority to reach a solution to a troubling constitutional issue. However, upon being asked to reconsider that decision, we have changed our collective mind. Despite the many good aspects of DeRolph III, we now vacate it. Accordingly, DeRolph I and II are the law of the case, and the current school-funding system is unconstitutional.

{¶5} To date, the principal legislative response to DeRolph I and DeRolph II has been to increase funding, which has benefited many schoolchildren. However, the General Assembly has not focused on the core

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constitutional directive of DeRolph I: “a complete systematic overhaul” of the school-funding system. Id., 78 Ohio St.3d at 212, 677 N.E.2d 733. Today we reiterate that that is what is needed, not further nibbling at the edges. Accordingly, we direct the General Assembly to enact a school-funding scheme that is thorough and efficient, as explained in DeRolph I, DeRolph II, and the accompanying concurrences.

{¶6} We are not unmindful of the difficulties facing the state, but those difficulties do not trump the Constitution. Section 2, Article VI of the Ohio Constitution states, “The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools * * *.” This language is essentially unchanged from the initial report from the Standing Committee on Education at the Constitutional Convention of 1850-51. I Report of the Debates and Proceedings of the Convention for the Revision of the Constitution, 1850-51 (1851) 693 (“Debates”). Even the minority report, presented by those opposed to the above language, had virtually the same import. It stated, “The General Assembly shall provide by law a system of common schools, and permanent means for the support thereof * * *.” Id. at 694.

{¶7} The delegates and through them the people of this state expressed their desire for more and better education and their desire that the state should be responsible for it. Delegate J. McCormick, from Adams County, stated, “Under the old Constitution it is provided that public schools and the cause of education shall be forever encouraged; and, under this constitutional provision, we have trusted the General Assembly for forty-eight years; and we may trust them for forty-eight years longer, without any good result. * * * Our system of common schools, instead of improving in legislative hands, has been degenerating; and I think it is time that we should take the thing in hands ourselves.” II Debates 702.

[3]

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William Hawkins, a delegate from Morgan County, said, “[W]e are warranted by public sentiment in requiring at the hands of the General Assembly a full, complete and efficient system of public education.” Id. at 16. The delegates perceived the General Assembly of that time as being insufficiently committed to education. Even though some delegates wanted to leave matters wholly to local authorities, see id. at 17, the delegates in their wisdom decided to include the Thorough and Efficient Clause in the Constitution. They and the people used the Constitution to command ongoing affirmative action by the General Assembly.

{¶8} James Taylor, a delegate from Erie County, stated, “I think it must be clear to every reflecting mind that the true policy of the statesman is to provide the means of education, and consequent moral improvement, to every child in the State, the offspring of the black man equally with that of the white man, the children of the poor equally with the rich.” Id. at 11. Samuel Quigley, a delegate from Columbiana County, stated, “[T]he report directs the Legislature to make full and ample provision for securing a thorough and efficient system of common school education, free to all the children in the State. The language of this section is expressive of the liberality worthy a great State, and a great people. There is no stopping place here short of a common school education to all children in the State.” Id. at 14. The delegates knew what they wanted, what the people wanted, and that it was necessary to use the Constitution to achieve what they wanted.

{¶9} The Thorough and Efficient Clause is part of our Constitution and part of our heritage. There were delegates who approved of even stronger language. Delegate McCormick proposed “a consolidation of all the general and local funds of the State, and distribution of the amount equally among the children of the State.” II Debates at 17. Otway Curry, a delegate from Union County, expressed his concern that the Thorough and Efficient Clause would “prove totally insufficient and powerless.” Id. at 710. Were this court to avoid its

[4]

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responsibility to give continued meaning to the Constitution, his fears would become reality.

{¶10} The Constitution of this state is the bedrock of our society. It expressly directs the General Assembly to secure a thorough and efficient system of common schools, and it does so expressly because the legislature of the midnineteenth century would not. As R.P. Ranney, a delegate from Trumbull County, put it, “I desire to lay a plan such as within certain limits the Legislature shall be bound to carry out.” Id. at 16.

{¶11} We realize that the General Assembly cannot spend money it does not have. Nevertheless, we reiterate that the constitutional mandate must be met. The Constitution protects us whether the state is flush or destitute. The Free Speech Clause of the United States Constitution, the Equal Protection Clause of the United States Constitution, the Thorough and Efficient Clause of the Ohio Constitution, and all other provisions of the Ohio and United States Constitutions protect and guard us at all times. Harman Stidger, a delegate from Stark County, said, “If we should leave every thing to the Legislature, why not adjourn this Convention sine die, at once?” Id. at 11. The same could be said of this court and the Ohio Constitution.

Judgment accordingly.

RESNICK and F.E. SWEENEY, JJ., concur.

RESNICK, J., concurs separately.

DOUGLAS, J., concurs in judgment only.

LUNDBERG STRATTON, J., concurs in part and dissents in part.

MOYER, C.J., dissents.

COOK, J., dissents.

__________________

"It is not there to "recognize the will of the people. It is there to interpret the law as it is, and render decisions in accordance with the law."

The Roe v Wade decision was based on an "emanation from a penumbra" in response to the will of the people at the time.

[misterwhite #139] Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."

I have voiced my dissent to Roe, believing jurisdiction should reside with the states.

The courts do not exist to "recognize the will of the people." It is not their purpose to respond to polls. It is YOU who espouses that they MUST respond to what you perceive to be the will of the people, or unlawful and unconstitutional action should be taken to knock them out of the game. You explicitly made reference to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions...."

This is preposterous nonsense.

Our lawfully established form of government allows the elimination of judicial review via the U.S. Constitution, Article III, Section 2.

There is no provision to eliminate judicial review. Read it again, more carefully this time. Your assertion leads to the inevitable conclusion that the whole judicial branch can effectively, and permanently, be eliminated by the legislature.

If, as you posit, the legislature has the power to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions," what would escape this awesome power?

If the lawful power exists to eliminate any judicial review of federal legislative or executive actions you desire to exempt from judicial review, what federal legislative or executive actions cannot be exempted from judicial review?

There is authority given to the Congress to limit APPELLATE JURISDICTION of the Supreme Court.

However, were judicial review eliminated, as you indicate it can be, that would result in a king whose edicts could not be challenged by any legal process.

The Constitution states that Justices "shall hold their Offices during good Behaviour."

---

The Supreme Court has the final say on interpreting the Constitution.

Not so, the Justices may be impeached by the HOR. This happened to Justice Samuel Chase in 1805.

www.supremecourt.gov/faq.aspx#faqgi5

They're all eligible to be executed after a speedy trial. So they can't just do whatever they want without facing consequences.

The Supreme Court has the final say on interpreting the Constitution.

Not so, the Justices may be impeached by the HOR. This happened to Justice Samuel Chase in 1805.

The Supreme Court has the final say on interpreting the Constitution.

Justices may be impeached by the House. Justice Chase was impeached by the House, just as President Bill Clinton was impeached by the House.

All charges against Justice Chase involved actions taken as a trial judge in lower courts. Justice Chase was acquitted of all charges by the Senate.

That a Justice may be impeached for high crimes or misdemeanors is irrelevant to whether the U.S. Supreme Court has the final say on interpreting the Constitution.

U.S. Supreme Court
MARBURY v. MADISON, 5 U.S. 137 (1803)
5 U.S. 137

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

* * *

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

"It is YOU who espouses that they MUST respond to what you perceive to be the will of the people, or unlawful and unconstitutional action should be taken to knock them out of the game."

You seem confused so let me be clear:

I am saying that, based on observable action at these flag burning protests, the U.S. Supreme Court should declare flag flag bu fl flag flag bu flag flag burning to be categorized as "hate speech", "fighting words" or an incitement to imminent violence. Before someone is injured or killed.

IF the U.S. Supreme Court refuses to do this, I am saying that Congress should exercise their constitutional power under Article III, Section 2, and strip the court's appellate jurisdiction on this matter and turn it over to the states.

"If, as you posit, the legislature has the power to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions," what would escape this awesome power?"

Nothing. That's like asking, "If Congress has the power to regulate Commerce, what can't they regulate?" Same answer.

And why is this power "awesome" when Congress wields it but not when the U.S. Supreme Court wields it? Need I remind you that the people elect members of Congress, not the judiciary, and that Congress is responsible to the people, not the judiciary.

"If it is a statute law, the legislature has the power to amend or repeal the statute ...."

.... unless Congress removes the court's appellate jurisdiction on the matter.

"Shit-For-Brains loves judicial legislation, almost as much as he hates original intent."

Ohhhh, having 50 different laws is so messy and confusing. It's much better to have five unelected and unaccountable justices decide how all of us should live.

And if you don't like it, amend the U.S. Constitution.

You seem confused so let me be clear:

Let me make crystal clear what you actually said:

#138. To: nolu chan (#137)

"Tell me you really have a good faith belief that the U.S. Supreme Court is going to overturn Johnson."

Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game."

If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states. I think everyone has had enough of this f**king judicial oligarchy.

misterwhite  posted on  2016-12-07   9:31:13 ET  Reply   Trace   Private Reply  

Those are your actual words. You seem confused and unable to recall them accurately. I have done my best to assist with combatting your short-term memory loss and the resulting confusion.

I am saying that, based on observable action at these flag burning protests, the U.S. Supreme Court should declare flag flag bu fl flag flag bu flag flag burning to be categorized as "hate speech", "fighting words" or an incitement to imminent violence. Before someone is injured or killed.

It is not the function of the U.S. Supreme Court to ban flag burning before some asshat does something illegal such as assault or murder. When an asshat acts to unlawfully prevent constitutionally protected free speech, it is not the function of the government to coddle the lawbreaker.

The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning" to be categorized as "hate speech", "fighting words" or an incitement to imminent violence.

Just because some asshat responds with violence to constitutionally protected speech of which he does not approve, does not provide any basis to ban all such speech. The lawbreaker is put behind bars or put in the ground as appropriate.

If the law is deemed to need changing, it is up to the appropriate authority to change the law. That authority is not the court.

[138] Trump (and Congress) could threaten to "eliminate any judicial review by the U.S. Supreme Court of certain federal legislative or executive actions and of certain state actions, or alternatively transfer the judicial review responsibility to state courts by "knocking [federal courts]...out of the game." If the U.S. Supreme Court refuses to define flag burning as "hate speech", "fighting words" or an incitement to imminent violence, then Congress should act, leaving the decision to the states.

[158] IF the U.S. Supreme Court refuses to do this, I am saying that Congress should exercise their constitutional power under Article III, Section 2, and strip the court's appellate jurisdiction on this matter and turn it over to the states.

There is no constitutional way for Congress to so act.

Congress cannot take away the ORIGINAL jurisdiction of the Federal courts. It can only limit the APPELLATE jurisdiction of the U.S. Supreme Court.

The U.S. District Courts hold ORIGINAL jurisdiction in most cases. They are bound by existing precedents set by their Circuit Court or the U.S. Supreme Court.

What you imagine you can do is elimate the entire Federal judicial branch.

Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.

Congress lacks authority to move jurisdiction from the Federal courts to the State courts. Federal jurisdiction is assigned by the Constitution. Federal law only determines which Federal court exercises the jurisdiction assigned by the Constitution. The jurisdiction of the Judicial branch is only limited by declaring and implementing martial law.

Congress has no authority to eliminate the entire Judicial branch, nor limit any Federal jurisdiction except for Supreme Court APPELLATE jurisdiction. That does not leave jack shit up to the States, or State courts as final authority on matters assigned to the jurisdiction of the Federal courts by the Constitution.

There is no ORIGINAL jurisdiction in the Courts of Appeals. They never function as a trial court or court of the first instance.

ORIGINAL jurisdiction for most Federal cases is assigned to the District Courts. They function as trial courts.

The Supreme Court can function as either a trial court or an appellate court. They can even convene a jury trial.

If your illustrious and grand newly powers were real, and were implemented, then by this simple magical device, the Congress could return the questions of slavery and abortion to the State courts as the final arbiter of whether all abortions were lawful (or unlawful) within a state, or whether any provision of the Constitution would be subject to review by the Federal courts.

All Federal court jurisdiction could be rendered null and void near the Mexican border and vigilantes could just aliens crossing illegally. As there would be no applicable Federal law, States could make any such shooting unprosecutable.

And, of course, as you would put the Federal Judicial branch courts out of business, if someone burns a flag in Washington, D.C. and some asshat decides to behead him on the spot, the crime would not have occurred in any state and there could be no Federal prosecution... unless... wait for it.... martial law were declared and the lawless one could be dragged before a military tribunal, a Federal court of the Executive branch.

Quit making believe that Congress has the authority to eliminate the Judicial branch and return constitutionally assigned Federal jurisdiction to the States.

"If it is a statute law, the legislature has the power to amend or repeal the statute ...."

.... unless Congress removes the court's appellate jurisdiction on the matter.

Limiting the APPELLATE jurisdiction of the U.S. SUPREME COURT is irrelevant to this point.

If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes. They have the power to override any veto.

If it is an interpretation of the CONSTITUTION, Congress can't do a thing about it but propose a Constitutional amendment to the States, for their approval.

You may not like the Amercan system of government, and express disdain for it, or even hate it with a passion, and you may wish for a king and all the royal power that comes with royal monarchy, but that is not the system that we have.

Congress cannot remove the jurisdiction of the Federal Judicial branch because you find it inconvenient to your desire to crush what has been held to be constitutionally protected free speech.

"If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes."

Oh? Congress passed, and the President signed, the Defense of Marriage Act and it was ruled unconstitutional by the U.S. Supreme Court. Now what? How do you re-write, "Marriage is between one man and one woman"?

Well, you can't. So the House voted 233-194 to remove U.S. Supreme Court appellate jurisdiction. But the legislation died in the Senate.

"because you find it inconvenient to your desire to crush what has been held to be constitutionally protected free speech."

That's my point. Flag burning shouldn't be protected -- no more than "hate speech", fighting words", or behavior that acts as an incitement to imminent violence.

"The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning"

Are you mocking my stutter? Do you think the first amendment protects your making fun of people with a browser disability?

Go burn a flag.

It's much better to have five unelected and unaccountable justices decide how all of us should live.

I am still studying the issue, but here are the bones of the solution. Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally. In any case dependent on the resolution of a question of the constitutionality of an act of Congress, the Court would be allowed to proceed only with the explicit permission of Congress. That permission could be either conditional or unconditional, depending on Congressional will as expressed in the permission granted to the Court in the specific case.

I'll return this proposed solution with additional details after a brief discussion of the history of judicial review. Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary.

Brutus, the antifederalist, predicted this in his Essay No. XV, when he observed that federal judges would "extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion."

We have now arrived at the point where the Court arrogantly and unconstitutionally legislates from the bench at will, assuming powers reserved to Congress. Allowing that to continue undermines our republican form of government and the rule of law. By subjecting the Court to limitations upon such usurpations, Congress could reestablish America's lost balance of powers.

A statutory solution provides tremendous opportunities for flexible and innovative solutions, especially with the guidance of a President with great negotiation skills. With that in mind, the following is little more than a very rough first draft for possible statutory construction.

Congress would require the Court to submit a request to engage in judicial review on a case-by-case basis, with the Court given an opportunity to provide Congress with a justification for the request. If the justification was sufficiently compelling, Congress might allow the Court to proceed unconditionally, if it so chose. Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities.

Personally, I would prefer Congress to impose its will on the Court without any regard to the feelings of the corrupt justices controlling it. However, Congress could take (or pretend to take) a more concilliatory approach, treating the solution as some form of partnership between the two branches. (Such as a binding Memorandum of Understanding or something similar.)

Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.

Anyway, like I said, first conceptual draft.

"If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes."

Oh? Congress passed, and the President signed, the Defense of Marriage Act and it was ruled unconstitutional by the U.S. Supreme Court. Now what? How do you re-write, "Marriage is between one man and one woman"?

Well, you can't. So the House voted 233-194 to remove U.S. Supreme Court appellate jurisdiction. But the legislation died in the Senate.

Jurisdiction cannot be removed retroactively.

Congress passed a law that was ruled UNCONSTITUTIONAL. the Court held it UNCONSTITUTIONAL. If they rewrote it so it would be CONSTITUTIONAL, they would have no problem.

Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL. It would not remove the binding precedent that has already been cast upon the UNCONSTITUTIONAL effort, and which is binding on all Federal and State courts.

Writing another UNCONSTITITIONAL law will not escape Federal judicial review.

[nolu chan #162]

If it is a STATUTE, Congress wrote it in the first place, and they can change it or repeal it without help from any other branch, and independent of what any other branch wants or believes. They have the power to override any veto.

If it is an interpretation of the CONSTITUTION, Congress can't do a thing about it but propose a Constitutional amendment to the States, for their approval.

You cannot escape the law with your juvenile tricks.

The U.S. Supreme Court should NOT declare "flag flag bu fl flag flag bu flag flag burning"

Are you mocking my stutter? Do you think the first amendment protects your making fun of people with a browser disability?

Go burn a flag.

I quoted you. It made as much sense as your attempts to reinvent the legal system.

I will go burn your surrender flag, Mr. WHITE.

Rather than limiting and regulating the appellate jurisdiction of the United States Supreme Court and the lesser federal courts by a specific topic or set of topics, Congress could and should restrict judicial review generally.

What you desire the Congress is, of course, blatantly unconstitutional.

Laurence H. Tribe, American Constitutional Law, #rd Ed., Vol. 1, pp. 272-73:

The question whether a federal court has jurisdiction to review the constitutionality of a congressional withdrawal of jurisdiction is distinct from the question of what limitations the Constitution in fact imposes upon such legislation. Plainly, the usual limitations of the Bill of Rights and of Article I, § 9, apply: the paradigmatic example of an external constitutional limitation would be the undisputed prohibitions imposed by the Due Process and Free Speech Clauses on legislation that would, say, restrict access to the federal courts on the basis of a litigant's race, religion, gender or political affiliation or viewpoint. Moreover, laws designed to hinder the exercise of constitutional rights are, to that degree, unconstitutional. Likewise, even those jurisdictional statutes which unintentionally burden the exercise of such rights warrant strict scrutiny;²⁴ thus, if busing were demonstrably the only remedy to effectuate one's right not to attend a segregated school, federal legislation limiting judicial power to order busing as a remedy would appear highly suspect. Even the withdrawal of a gratuity—whether in the form of a welfare payment that a state is not independently required to make²⁵ or in the form of an extension of court jurisdiction that Congress is not independently compelled to provide—may be forbidden if it penalizes a separately secured right.²⁶ Congress, in short, is not entirely at liberty to create free-fire zones around currently unpopular constitutional rights.²⁷

Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court.

Congress was not granted the authority to limit the original jurisdiction of any federal court, and that is where the trial is held, the court of first instance.

Congress cannot limit the original jurisdiction of any court, and cannot limit the appellate jurisdiction of ant U.S. Circuit Court of Appeals.

Article 3, Section 2:

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Do try reading the constitutional provision with the knowledge that Appellate jurisdiction does not arise until Original jurisdiction has been exercised at the trial court level. Appellate jurisdiction seems to arise in the U.S. Supreme Court after it has been excercised first in a U.S. Circuit Court of Appeals.

1 Stat. 80 (24 Sept. 1789)

SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

To see the jurisdiction held by the U.S. District Courts, see 28 U.S.C. Chapter 85 (§§ 1330 - 1369).

Although the Marbury decision is often pointed to as the source of judicial review, its roots predate that decision. Judicial review, while arguably extraconstitutional, is not unconstitutional per se. Its expanding scope over the years is what has led to our current runaway judiciary.

Marbury is not the first decision of judicial review in the U.S. Supreme Court. That would be Hylton v. United States, 3 U.S. 71 (1796). Hylton reviewed the constitutionality of a tax law and upheld it. Calder v. Bull was also a case of judicial review. What distinguishes Marbury is that it was the first case of judicial review resulting in a law being overturned, not that it is the source of judicial review.

Judicial review is not arguable as unconstitutional in court unless you desire to invite Rule 11 sanctions.

https://supreme.justia.com/cases/federal/us/3/171/

Hylton v. United States, 3 U.S. 3 Dall. 171 (1796)

Hylton v. United States

3 U.S. (3 Dall.) 171

Syllabus

The act of Congress of 6 June 1794, laying "a tax on carriages for the conveyance of persons, kept for the use of the owner," is a constitutional law, and is within the authority granted to Congress by the eighth section of the first article of the Constitution.

https://supreme.justia.com/cases/federal/us/3/386/

Calder v. Bull, 3 Dall. 386 (1798)

AUGUST TERM, 1798.

CALDER and wife v. BULL and wife.

Constitutional law.—Eminent domain.—Ex post facto laws.

The judiciary is a co-ordinate branch of the government, and may declare a statute to be void, as repugnant to the constitution.

Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege.

Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers. This has been so since Chief Justice John Jay refused to provide such an opinion to President George Washington and Secretary Alexander Hamilton. The court opines on cases or controversies before the court, pursuant to U.S. Const. Art 3, Sec. 2, Cl. 1, Case or Controversy provision.

Congress was not granted any authority to limit the appellate jurisdiction of any court except the U.S. Supreme Court.

"The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. "

Congress may limit both the appellate and original jurisdiction of the inferior courts it establishes. For example, the United States Bankruptcy Court.

Poor Shit-For-Brains.

Any such request for an advisory opinion would be rejected as impermissible under the constitutional grant of powers.

"Most famously, the circuit court in Philadelphia refused to carry the Act into effect in Hayburn’s Case, but declined to issue a decision and opinion in that case. Instead, the judges and Justices voiced their constitutional objections to President George Washington in a formal letter, as other circuit courts had also done." Whittington, K. E. (2008). Judicial Review of Congress Before the Civil War. Geo. LJ, 97, 1257.

Poor Shit-For-Brains.

"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution."

False interpretation of the Courts interpretive powers.

Congress lacks authority to make law repugnant to the Constitution.

The SCOTUS lacks authority to issue opinions repugnant to the the Constitution.

All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution.

"Alternatively, Congress could seek imput from the Court regarding possible modifications of any challenged law. That second possibilty has a precedent in the events surrounding Hayburn’s Case, 2 U.S. 409 (1792), in which the Court withheld a decision, allowing Congress an opportunity to revise the statute and eliminate the percieved constitutional infirmities."

This, I like. Have the courts review legislation prior to a vote. I'm guessing they wouldn't be interested in 99.9% of the legislation that goes on, so this isn't that much of a burden.

This is an issue that's always bothered me anyways. Congress takes forever to pass legislation and, when they do, it's struck down by the courts. What a waste of time.

This way the judicial branch has their say but they're not the final word. Moreso, the court's constitutional findings could be used as part of the debate in Congress.

This places the onus on representatives elected by the people, not unelected and unaccountable justices.

(I'd also like to see Congress directly involved in passing regulations, rather than avoiding responsibility by allowing agencies to issue them. But that's a topic for another thread.)

(I'd also like Congress to issue a "Declaration of Conflict" whenever we send troops into battle anywhere. Time for them to go on record before money is spent and people start dying. Again, another topic for another thread.)

OK. I'm done.

"Congress could even invite a nonbinding review from the Court prior to final enactment of selected legislative proposals, although that opportunity could be withdrawn at the first instance of judicial abuse of the privilege."

If the review is nonbinding the court could say whatever they want. If they try this "emanation from a penumbra" bullshit, Congress could simply laugh at them

Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.

"You cannot escape the law with your juvenile tricks."

Congress sure thought they could. The House even passed legislation removing judicial review on the definition of marriage. Had it gotten out of committee and passed the Senate you'd be eating your words.

"Taking away the APPELLATE jurisdiction of the Supreme Court would not make the UNCONSTITIONAL legislation CONSTITUTIONAL."

It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue. We would never know.

If the review is nonbinding the court could say whatever they want.

Yep. Or even say nothing at all.

Congress could remind them of their silence if they later pray for permission to consider a constitutional challenge to that particular federal statute.

Besides, the court has always looked at Congressional legislation as nonbinding. Screw 'em.

It would make the constitutional/unconstitutional argument moot. The court would not be allowed to rule on the issue.

Yep. Congress, in its act of 27th March, 1868, removed the Supreme Court's appellate jurisdiction to hear habeas corpus appeals. In response, the Court, in Ex parte McCardle, 74 U.S. 506, (1868), went to its collective knee and kissed the legislature's, er, ring.

Moreso, the court's constitutional findings could be used as part of the debate in Congress.

Good point. Helping to clarify potential legal considerations in the legislative history and aiding statutory interpretation in future adjudications. That could even reach to more pedestrian concerns such a statutory ambiguity.

And you don't respect private property either, so you're a communist as well!

If they own the flag, they can do with it as they wish

I couldn't agree more.

This comment is not sarcasm.

It has always struck me that the USSC and the US Justice system is very much like that of the Jewish religion. They follow more the commentary on the Word, than the Word itself. Centuries of thought by what they say is the best and brightest, is thought to be equal to or above the actual words handed down to Moses.

"If you own a flag and you burn it, what skin is it off of my nose?"

I understand. As I'm sure you understand that to most people the American flag is a symbol of our country and it stands for something.

And I'm sure you understand how some people (not you, obviously) could become upset when someone burns the flag at a protest. And that action could lead to violence.

Now. Why would you want to protect this behavior yet ban "hate speech", "fighting words" and other behavior that acts as an incitement to imminent violence?

"If you burn my flag, it is a crime. If I burn my flag it is free speech."

Hate speech is just words and nothing is burned. Yet there are laws against it.

the Imperial Presidency we have had on and off since Lincoln(on), Coolidge(off), FDR(on), Johnson/Nixon/Reagan/Bushes/Clinton/Obama(all on)

Not a good record.

Trump's comment about jail time is bad enough, but the idea of "loss of citizenship" is too much. Most of us were born in the USA of citizen parents. What would one be if they lost US citizenship, United Nations citizens?

Where would they deport someone who's not a citizen of any country? Some dopey kid who burned a US flag, would likely become radicalized. If you just laughed at them, they'd likely outgrow it in a few years and become a great American.

The "cure" is worse than the disease.

"Time to return to original intent."

Well, original "something". Scalia was big on original meaning.

Original intent would be what the writer had in mind when he wrote the words. Original meaning would be what an average reader thinks when he reads those words in that historical period.

Either one would be better than the method the courts use today ... which is "what they think".

"Where would they deport someone who's not a citizen of any country?"

Well, they obviously hate the United States. So they must believe there are other countries they'd prefer. Ask them to pick one and we'll work something out with that country.

"That could even reach to more pedestrian concerns such a statutory ambiguity."

Yeah. What you said. That too.

(I think "The Ambiguous Statutes" would be a great name for a rock band.)

they obviously hate the United States.

No, most likely they just hate the corrupt unconstitutional government.

You seem to love Obama and worship his tyrannical regime, but you're in the minority.

Love the USA, but hate the rotten D&R government.

"No, most likely they just hate the corrupt unconstitutional government."

The American flag represents the country, not the current government. If you "Love the USA, but hate the rotten D&R government", then find something else to burn.

By burning the symbol of your country.

Protecting our country includes the symbol such as flag burning to make an explicit perspective that there is whole lot of wrongs by the US Government that are not addressed by politicians.

"Protecting our country includes the symbol such as flag burning to make an explicit perspective that there is whole lot of wrongs by the US Government that are not addressed by politicians."

Liberal clap-trap gobbledygook.

You don't like the government? Burn something else.

clap-trap gobbledygook

With a government closing free expression, that you agree with, no wonder the place has turned into a tyrannical do-nothing failure for all the world to see.

"With a government closing free expression"

Do you mean banning "hate speech"?

"Congress lacks authority to make law repugnant to the Court's interpretation of the Constitution.". Nolu chump

False interpretation of the Courts interpretive powers.

Congress lacks authority to make law repugnant to the Constitution.

The SCOTUS lacks authority to issue opinions repugnant to the the Constitution.

All three branches of our federal government, and our State/local governments, lack authority to make law repugnant to the constitution.

Yes, original intent is the only way to go. All precedents should be burned, and each case decided with only logical understanding of the intent of the law.

I've made that argument many times here, to our local chumps, --- but they can't seem to understand. Maybe it's because they don't really honor our constitutions original intent.