Prop 8 ruled unconstitutional

[Buffett and Colbert]

It is unconstitutional that a *single* judge can block these measures.

I fucking dare you to back that up.

[Maineiacs]

It is unconstitutional that a *single* judge can block these measures.

I fucking dare you to back that up.

I'm with you. I'd love to see a refutation of judicial review or an argument in favor of repealing Article III of the Constitution.

[SaintB]

Susan Bolton & now this crazy Judge?

A single Judge should not have this kind of power. All these laws should continue until this single Judge can get the other judges needed for a majority to agree with him / her. If that judge is unable to do so, then this type of Judicial Authority should be unconstitutional. In fact, I'm sure it is. I can't imagine that the Founding Fathers would've set up a Judicial System granting a single individual to turn over a popular vote. Definitely not, the entire Bench would have to make this kind of motion to overturn a law, not a single Judge.

Gotta go pick up a law book again, I have a feeling this judge as well as Ms. Bolton should be impeached for over-reaching their authority, and of course any executive powers that are accomplises should like wise lose their jobs as well.

You REALLY have no understanding of the US Constitution....

[MisanthropicPopulism]

It is unconstitutional that a *single* judge can block these measures.

I fucking dare you to back that up.

The right-wing is apparently getting their panties in a knot over a federal judge overruling a state constitution. Apparently state constitutions overrule the US Constitution

[The Rich Port]

You REALLY have no understanding of the US Constitution....

The right-wing is apparently getting their panties in a knot over a federal judge overruling a state constitution. Apparently state constitutions overrule the US Constitution

Did no one else notice the irony? The country's name is Our Constitution, FER CRISSAKES.

Srsly, Our Constitution, you picked a horrible nation name.

[Farnhamia]

It is unconstitutional that a *single* judge can block these measures.

I fucking dare you to back that up.

The right-wing is apparently getting their panties in a knot over a federal judge overruling a state constitution. Apparently state constitutions overrule the US Constitution

I guess. It's interesting, though, that there hasn't been a huge, fiery eruption from the GOP on this. Some have spoken out but I haven't seen Boehner and McConnell ranting and yelling "No you can't!" The Newt's said something, I believe, but he's not the guy you want defending the sanctity of marriage, and the usual suspects from Focus on the Family, but otherwise it's been mostly silence. Rachel Maddow did a piece on this last night. Very interesting.

[The Rich Port]

I guess. It's interesting, though, that there hasn't been a huge, fiery eruption from the GOP on this. Some have spoken out but I haven't seen Boehner and McConnell ranting and yelling "No you can't!" The Newt's said something, I believe, but he's not the guy you want defending the sanctity of marriage, and the usual suspects from Focus on the Family, but otherwise it's been mostly silence. Rachel Maddow did a piece on this last night. Very interesting.

If we're lucky, they'll keep their traps shut permanently and not remind the vast population of chimps that watch FAUX News that it's once again time to rig votes in California. But I digress.

Give 'em some time... And if not, I'll bet they'll give Zephie a job.

[Farnhamia]

I guess. It's interesting, though, that there hasn't been a huge, fiery eruption from the GOP on this. Some have spoken out but I haven't seen Boehner and McConnell ranting and yelling "No you can't!" The Newt's said something, I believe, but he's not the guy you want defending the sanctity of marriage, and the usual suspects from Focus on the Family, but otherwise it's been mostly silence. Rachel Maddow did a piece on this last night. Very interesting.

If we're lucky, they'll keep their traps shut permanently and not remind the vast population of chimps that watch FAUX News that it's once again time to rig votes in California. But I digress.

Give 'em some time... And if not, I'll bet they'll give Zephie a job.

Maddow suggested that it could be because the Tea Party isn't as socially conservative as the religious right, and that the power base in the GOP has shifted away from the religious right. Their high point was making Congress stop what it was doing and actually intervene in a very sad family matter, the Terry Schiavo case, giving us the spectacle of Senators diagnosing that poor woman via a TV feed. Interesting times, eh?

[Buffett and Colbert]

Susan Bolton & now this crazy Judge?

A single Judge should not have this kind of power. All these laws should continue until this single Judge can get the other judges needed for a majority to agree with him / her. If that judge is unable to do so, then this type of Judicial Authority should be unconstitutional. In fact, I'm sure it is. I can't imagine that the Founding Fathers would've set up a Judicial System granting a single individual to turn over a popular vote. Definitely not, the entire Bench would have to make this kind of motion to overturn a law, not a single Judge.

Gotta go pick up a law book again, I have a feeling this judge as well as Ms. Bolton should be impeached for over-reaching their authority, and of course any executive powers that are accomplises should like wise lose their jobs as well.

You REALLY have no understanding of the US Constitution....

Ironically

[The Rich Port]

You REALLY have no understanding of the US Constitution....

Ironically

I beat ya to it.

[Buffett and Colbert]

You REALLY have no understanding of the US Constitution....

Ironically

I beat ya to it.

Jódete.

[The Black Forrest]

Susan Bolton & now this crazy Judge?

A single Judge should not have this kind of power. All these laws should continue until this single Judge can get the other judges needed for a majority to agree with him / her. If that judge is unable to do so, then this type of Judicial Authority should be unconstitutional. In fact, I'm sure it is. I can't imagine that the Founding Fathers would've set up a Judicial System granting a single individual to turn over a popular vote. Definitely not, the entire Bench would have to make this kind of motion to overturn a law, not a single Judge.

Gotta go pick up a law book again, I have a feeling this judge as well as Ms. Bolton should be impeached for over-reaching their authority, and of course any executive powers that are accomplises should like wise lose their jobs as well.

Interesting.

So where in the Constitution is this?

[The Rich Port]

Jódete.

llorón

[Grave_n_idle]

You REALLY have no understanding of the US Constitution....

The right-wing is apparently getting their panties in a knot over a federal judge overruling a state constitution. Apparently state constitutions overrule the US Constitution

Did no one else notice the irony? The country's name is Our Constitution, FER CRISSAKES.

Srsly, Our Constitution, you picked a horrible nation name.

Hey now, there's no rules that says you can't call your nation "Our Constitution" just because you haven't read it.

[The Rich Port]

Hey now, there's no rules that says you can't call your nation "Our Constitution" just because you haven't read it.

Actually, remembering that one guy who complains about America becoming a Communist hellhole, it could not be the American Constitution. So maybe we should digress...

[Seangoli]

It is unconstitutional that a *single* judge can block these measures.

I fucking dare you to back that up.

The right-wing is apparently getting their panties in a knot over a federal judge overruling a state constitution. Apparently state constitutions overrule the US Constitution

I guess. It's interesting, though, that there hasn't been a huge, fiery eruption from the GOP on this. Some have spoken out but I haven't seen Boehner and McConnell ranting and yelling "No you can't!" The Newt's said something, I believe, but he's not the guy you want defending the sanctity of marriage, and the usual suspects from Focus on the Family, but otherwise it's been mostly silence. Rachel Maddow did a piece on this last night. Very interesting.

My guess is that due to the recent issues in the GOP(That is, they are pissing off even their own voting base), I'm willing to bet they are keeping silently and ignoring so as not to look like crazy lunatics. Granted, if this decision came a few years ago, there'd be a shitstorm like none other. However, right now, it is not politically beneficial to even touch this with a 10-foot-pole as it would drive even more people farther away. They're already repugnant, no point in adding more festering rot to the garbage heap.

[Neo Art]

Seriously, Judges should not be given this power. A *single* Judge should not be given this power. It is unconstitutional that a *single* judge can block these measures.

No, there needs to be a change. Before any of these "stays" or "injunctions" can be brought a majority of the judges need to agree. A single judge should not be able to rule over a vote.

Here, let me illustrate:

People vote to legalize alcohol.
8/9 judges are silent on the issue.
1 judge decides the vote violated the constitution.
The law is made void until the Judges hear an appeal.

No, it should take a majority of the Judges until any law can be put under an injunction. I could care less about the ISSUE being debated here regarding *fagscoughfags* but the very power of a SINGLE JUDGE to overturn a Vote of a Majority of the People is wrong in the utmost.

Seriously, it's posts like this that I don't even bother replying to these kinds of topics anymore.

[Muravyets]

Seriously, Judges should not be given this power. A *single* Judge should not be given this power. It is unconstitutional that a *single* judge can block these measures.

No, there needs to be a change. Before any of these "stays" or "injunctions" can be brought a majority of the judges need to agree. A single judge should not be able to rule over a vote.

Here, let me illustrate:

People vote to legalize alcohol.
8/9 judges are silent on the issue.
1 judge decides the vote violated the constitution.
The law is made void until the Judges hear an appeal.

No, it should take a majority of the Judges until any law can be put under an injunction. I could care less about the ISSUE being debated here regarding *fagscoughfags* but the very power of a SINGLE JUDGE to overturn a Vote of a Majority of the People is wrong in the utmost.

Seriously, it's posts like this that I don't even bother replying to these kinds of topics anymore.

You should at least though make enough of an appearance to put an official "Real Lawyer Sez Dis Is Crap" statement on the record. It's a like a civic duty or something.

[The Resurgent Dream]

Seriously, Judges should not be given this power. A *single* Judge should not be given this power. It is unconstitutional that a *single* judge can block these measures.

No, there needs to be a change. Before any of these "stays" or "injunctions" can be brought a majority of the judges need to agree. A single judge should not be able to rule over a vote.

Here, let me illustrate:

People vote to legalize alcohol.
8/9 judges are silent on the issue.
1 judge decides the vote violated the constitution.
The law is made void until the Judges hear an appeal.

No, it should take a majority of the Judges until any law can be put under an injunction. I could care less about the ISSUE being debated here regarding *fagscoughfags* but the very power of a SINGLE JUDGE to overturn a Vote of a Majority of the People is wrong in the utmost.

Seriously, it's posts like this that I don't even bother replying to these kinds of topics anymore.

You should at least though make enough of an appearance to put an official "Real Lawyer Sez Dis Is Crap" statement on the record. It's a like a civic duty or something.

I'm 2/3rds a lawyer. Does that count?

[Buffett and Colbert]

Seriously, Judges should not be given this power. A *single* Judge should not be given this power. It is unconstitutional that a *single* judge can block these measures.

No, there needs to be a change. Before any of these "stays" or "injunctions" can be brought a majority of the judges need to agree. A single judge should not be able to rule over a vote.

Here, let me illustrate:

People vote to legalize alcohol.
8/9 judges are silent on the issue.
1 judge decides the vote violated the constitution.
The law is made void until the Judges hear an appeal.

No, it should take a majority of the Judges until any law can be put under an injunction. I could care less about the ISSUE being debated here regarding *fagscoughfags* but the very power of a SINGLE JUDGE to overturn a Vote of a Majority of the People is wrong in the utmost.

Seriously, it's posts like this that I don't even bother replying to these kinds of topics anymore.

You should at least though make enough of an appearance to put an official "Real Lawyer Sez Dis Is Crap" statement on the record. It's a like a civic duty or something.

Is it my civic duty as a law abiding citizen who likes to inflate his ego by playing lawyer to put an official "Real Poser Sez Dis Is Crap"?

[Kiskaanak]

I'm 2/3rds a lawyer. Does that count?

What the fuck does that even mean?

In Canada, you don't get to call yourself a lawyer unless you've actually passed the Bar. In fact, you can be disbarred before you ever get barred for passing yourself off as any sort of lawyer, when you aren't.

[Buffett and Colbert]

I'm 2/3rds a lawyer. Does that count?

What the fuck does that even mean?

In Canada, you don't get to call yourself a lawyer unless you've actually passed the Bar. In fact, you can be disbarred before you ever get barred for passing yourself off as any sort of lawyer, when you aren't.

I think he means he's in law school...

[The Cat-Tribe]

NOTE: I make my standard apology for the length of this post - but OC's posts pushed my buttons and triggered my obsessive side.

Seriously, Judges should not be given this power. A *single* Judge should not be given this power. It is unconstitutional that a *single* judge can block these measures.¹

No, there needs to be a change. Before any of these "stays" or "injunctions" can be brought a majority of the judges need to agree. A single judge should not be able to rule over a vote.²

Here, let me illustrate:

People vote to legalize alcohol.
8/9 judges are silent on the issue.
1 judge decides the vote violated the constitution.
The law is made void until the Judges hear an appeal.

No, it should take a majority of the Judges until any law can be put under an injunction. I could care less about the ISSUE being debated here regarding *fagscoughfags* but the very power of a SINGLE JUDGE to overturn a Vote of a Majority of the People is wrong in the utmost.

Its Tyranny and for proof, allow me to show what our Founding Fathers thought of such abuses of power:

Declaration of Independence: He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them

³,⁴

5/9 Judges on the Bench to make an Injunction or Stay on a Law voted in by the Public. Giving a single judge this type of power is not what our Founding Fathers would have wanted.⁵

Susan Bolton & now this crazy Judge?

A single Judge should not have this kind of power. All these laws should continue until this single Judge can get the other judges needed for a majority to agree with him / her. If that judge is unable to do so, then this type of Judicial Authority should be unconstitutional.⁶ In fact, I'm sure it is. I can't imagine that the Founding Fathers would've set up a Judicial System granting a single individual to turn over a popular vote. Definitely not, the entire Bench would have to make this kind of motion to overturn a law, not a single Judge.⁷

Gotta go pick up a law book again, I have a feeling this judge as well as Ms. Bolton should be impeached for over-reaching their authority, and of course any executive powers that are accomplises should like wise lose their jobs as well.⁸

1. I urge you to actually read all 136 pages of U.S. District Court for the Northern District of California Chief Judge Walker's thorough, detailed, and persuasive opinion that has your bollocks in a twist before you comment on it further.

2. At the very least, read this post of mine summarizing the holding.

3. Why do you hate liberty and equity? Seriously, the whole idea behind modern free states (particularly the U.S. constitutional Republic) is that we form government to protect our rights. Direct democracy does not necessarily protect rights (something the Founders of the U.S. discussed at length). A way of protecting rights is placing structural limits on the power of the majority. A bill of rights is such a limit. So are the Due Process and Equal Protection Clauses of the 14th Amendment. As I have said ad naseum, contrary to your whining about judicial tyranny or the "vote of a majority of the people," fundamental rights and equal protection of the laws do not depend on the whim of majority opinion or the outcome of elections.

The Supreme Court explained this in West Virginia State Board of Education v. Barnette, 319 US 624, 638 (1943):

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Despite this being a nearly 70-year old precedent, some right-wingers have rejected it as judicial activism. Well, guess what? Here is the same sentiment from U.S. Supreme Court Justice Antonin Scalia:

The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

See also:
Declaration of Independence (emphasis added):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

James Madison, Federalist No. 51(emphasis added):

But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

4. It was Chief Justice Walker's duty sworn duty under the Constitution to exercise the power of judicial review and declare void any law that would violate the Constitution. See generally Article III and Article VI of the U.S. Constitution.

Chief Justice Marshall explained this duty at length in the seminal case of Marbury v. Madison, 5 U.S. 137 (1803). The unanimous Court in Marbury declared: "It is emphatically the province and the duty of the judicial department to say what the law is" and "an act of the legislature repugnant to the constitution is void." Thus, the courts must void any law that violates the Constitution. That this was intended by the Founders to be so read is confirmed by Alexander Hamilton's The Federalist #78. Hamilton states: "There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid." Hamilton further states: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body." Thus, again, it is the duty of judges to nullify unconstitutional laws.

The same sentiment is echoed in SCOTUS's unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown v. Board of Education case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

The judiciary's enforcement of the Constitution by voiding unconstitutional legislation is the opposite of tyranny, as Hamilton explained in Federalist #78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

5. Here is a more lengthy (and, I afraid, a bit repetitive) explanation of how judicial review is an express part of the Constitution and central to the system of checks and balances.

A. Judicial review is the very essence of the existence of the Supreme Court (and "inferior" federal courts) and is clearly provided for in our Constitution. See generally Article III and Article VI of the U.S. Constitution. This is spelled out at length in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) and in The Federalist #78.

B. Where exactly in the Constitution is judicial review found? Well, let's quickly note that Artice VI tells us that: "This Constitution ... shall be the supreme Law of the Land." Let us also note that Article I and Article II fail to give final power to interpret the Constitution to either the executive or legislative branch. So, let's now turn to Article III, Section 1: "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. ..."

It is inherent in the idea of judicial power that the Court has the power to interpret law. As Justice Marshall declared in Marbury, "It is emphatically the province and the duty of the judicial department to say what the law is." That this was intended by the Founders to be so read is confirmed by Federalist #78: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."

One also can look to the overall scheme of the Constitution, particularly the setting up of checks and balances. The judicial power to interpret law is the judiciary's primary check on the other branches. Without it, the system of checks and balances fails. Regardless, in Article III, Section 2, we are informed: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." Thus, any doubt that the Court has the power in both Law and Equity to rule on cases involving the meaning of the Constitution is removed. Such cases are emphatically within the judicial Power.

Finally, in Article III, Section 2, we learn: "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. " Thus, the judicial power includes the jurisdiction over both fact and law questions in cases arising under the Constitution. Again, the Court has the power to interpret law, including the Supreme Law of the Land.

C. Where did the concept of judicial review come from? Judicial review did not spring full-blown from the brain of Chief Justice Marshall in Marbury. The concept had been long known. The generation that framed the Constitution presumed that courts would declare void legislation that was repugnant or contrary to the Constitution. They held this presumption because of colonial American practice. Judicial review in the English common law originated at least as early as Dr. Bonham's Case in 1610. Judicial review was utilized in a much more limited form by Privy Council review of colonial legislation and its validity under the colonial charters. In 1761 James Otis, in the Writs of Assistance Case in Boston, argued that British officers had no power under the law to use search warrants that did not stipulate the object of the search. Otis based his challenge to the underlying act of Parliament on Bonham's Case, the English Constitution, and the principle of “natural equity.” John Adams subsequently adopted this reasoning to defend the rights of Americans by appeal to a law superior to parliamentary enactment. And there were several instances known to the Founders of state court invalidation of state legislation as inconsistent with state constitutions.

Practically all of the Founders who expressed an opinion on the issue in the Constitutional Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation, and I have already noted the power of judicial review was explicity set forth in The Federalist Papers. Similar statements affirming the power of judicial review were made by Founders duing the state ratifying conventions. In enacting the Judiciary Act of 1789, Congress explicitly made provision for the exercise of the power, and in other debates questions of constitutionality and of judicial review were prominent.

And, as I have also noted, in the 200 years since Marbury the power of judicial review has been accepted and further expounded. If it were truly a mere power-grab, it could have long ago been nullified. Objections to judicial review motivated by a dislike for a specific line of caselaw are both historically inaccurate and rather tedious. (In writing this brief overview of some of the history of judicial review, I've relied on numerous sources beyond the original sources linked above. I wouldn't claim to have known all of the above off the top of my head. )

D. Is judicial review valid? Another case you might check out that confirms the Court's power of judicial review is the unanimous decision in Cooper v. Aaron, 358 U.S. 1 (1958):

As this case reaches us it raises questions of the highest importance to the maintenance of our federal system of government. It necessarily involves a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution. Specifically it involves actions by the Governor and Legislature of Arkansas upon the premise that they are not bound by our holding in Brown v. Board of Education, 347 U.S. 483. That holding was that the Fourteenth Amendment forbids States to use their governmental powers to bar children on racial grounds from attending schools where there is state participation through any arrangement, management, funds or property. We are urged to uphold a suspension of the Little Rock School Board's plan to do away with segregated public schools in Little Rock until state laws and efforts to upset and nullify our holding in Brown v. Board of Education have been further challenged and tested in the courts. We reject these contentions.
. . .
However, we should answer the premise of the actions of the Governor and Legislature that they are not bound by our holding in the Brown case. It is necessary only to recall some basic constitutional propositions which are settled doctrine.

Article VI of the Constitution makes the Constitution the "supreme Law of the Land." In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as "the fundamental and paramount law of the nation," declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that "It is emphatically the province and duty of the judicial department to say what the law is." This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, "to support this Constitution." Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' "anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . ." Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

E. More on the history of judicial review. I've already established that judicial review was not a new idea and had existed under common law. Here is more from Currie, The Constitution in the Supreme Court: The Powers of the Federal Court 1801-1835, 49 U. Chi. L. Rev. 646, 655-656 (1982):

The Privy Council had occasionally applied the ultra vires principle to set aside legislative acts contravening municipal and colonial charters. State courts had set aside state statutes under constitutions no more explicit about judicial review than the federal. The Supreme Court itself had measured a state law against a state constitution in Cooper v. Telfair, 4 U.S. (4 Dall.) 14 (1800), and had struck down another under the supremacy clause in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796); in both cases the power of judicial review was expressly affirmed. Even Acts of Congress had been struck down by federal circuit courts, and the Supreme Court had reviewed the constitutionality of a federal statute in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Justice James Iredell had expressly asserted this power both in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), and in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), and [Justice] Chase had acknowledged it in Cooper. In the [Consitutional] Convention, moreover, both proponents and opponents fo the proposed Council of Revision had recognized that the courts would review the validity of congresssional legislation, and Alexander Hamilton had proclaimed the same doctrine in The Federalist.

F. Also, I'll note the following from A. Bickel, The Least Dangerous Branch 15-16 (1965):

[It] is as clear as such matters can be that the Framers of the Constitution specifically expected that the federal courts would assume a power -- of whatever exact dimensions --to pass on the constitutionality of actions of the Congress and the President, as well as of the several states. Moreover, not even a colorable showing of decisive historical evidence to the contrary can be made. Nor can it be maintained that the language of the Constitution is compelling the other way

.
G. On the question of judicial vs. legislative supremacy, Alexander Hamilton explains in Federalist #78:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Again, the above is from several prior posts of mine on the subject. Feel free to show where I am wrong.

6. The power of a single U.S. District Court judge to issue an injunction against an unconstitutional state law is not only constitutional, but expressly approved by Congress -- dating back to the Founders themselves.

Rule 65 of the Federal Rules of Civil Procedure (FRCP) provides U.S. District Courts with the power to issue injunctions. The Congress has authorized the federal judiciary to prescribe the rules of practice, procedure, and evidence for the federal courts, subject to the ultimate legislative right of the Congress to reject, modify, or defer any of the rules. The authority and procedures for promulgating rules are set forth in the Rules Enabling Act, 28 U.S.C. §§ 2071-2077. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then approved by the United States Congress. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body. See, e.g., Administrative Office of the U.S. Courts, The Federal Rules of Practice and Procedure (Oct. 2010); Wikipedia: Federal Rules of Civil Procedure.

Chief Justice Walker's post-trial injunction is authorized by FRCP 65(d). In certain special cases -- not applicable to the cases you mention, FRCP(e) requires a three-judge panel for a U.S. District Court to issue an injunction. In 1948, Congress had passed legislation requiring a three-judge panel for injunctions against restraining the enforcement, operation or execution of a state statute on grounds of unconstitutionality, but Congress repealed those provisions in 1976. See 28 U.S.C. §§ 2281, 2282 (Repealed).

The Judiciary Act of 1793, passed by the Second U.S. Congress, included the power of federal courts to issue injunctions. See, e.g., Text of Judiciary Act of 1793; Wikipedia: Judiciary Act of 1793. Section 5 of the Act specifically provides for a single judge to issue injunctions. Even prior to the act, U.S. District Court judges already had injunctive power, adopted from English common law. [I'll fill this in more later if you really wish to contest the point.]

7. Specific footnotes to your OP.
¹As explained above, the idea that a U.S. District Court Judge cannot enjoin an unconstitutional law is bizarre. Not only is it constitutionally and legislatively allowed, it is required by law.

²Not only is requiring a "majority of [federal] judges" agreeing to issue an injunction unnecessary as noted above, but it is ridiculously impractical--regardless of whether you mean the majority of judges in a specific district, within a state, or nationwide. Also, as noted earlier, Congress has specifically decided that a three-judge panel is not required to enjoin a state statute on constitutional grounds.

Regardless of what you mean by "a majority of judges," it is practically impossible to require for an injunction. There are 94 U.S. District Courts in the United States federal court system. There is at least one judicial district for each state, the District of Columbia, and Puerto Rico. Each federal judicial district has at least one courthouse, and many districts have more than one. Each U.S. District Court is established by Congress, pursuant to Article III of the U.S. Constitution. As of 2010, there were 678 authorized district court judgeships. The number of judges per U.S. District Court varies from 1 to 28. See, e.g., United States Courts, U.S. District Courts; United States Courts, FAQs; Wikipedia: United States district court; United States Courts, Federal Judgeships; 28 U.S.C. § 133.

³If this extremely vague, out-of-context quote from the Declaration of Independence standing alone justified revolt, we would be in a constant state of war.

⁴ Although it has persuasive and/or ethical authority, the Declaration of Independence has no legal authority in the United States. It is the United States Constitution that serves as the law of the land for America and indicates the intent of our Founding Fathers.

The Declaration of Independence does not represent any law of the United States. It came before the establishment of our lawful government (the Constitution). The Declaration aimed at announcing the separation of America from Great Britain and it listed the various grievances with them. The Declaration includes the words, "The unanimous Declaration of the thirteen united States of America." The grievances against Great Britain no longer hold today, and we have more than thirteen states.

After the American colonies became independent from England and after the failure or the Articles of Confederation, the people created the U.S. Constitution as the Supreme Law of the Land: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." U.S. Constitution, Preamble. (Compare the Constitution's "we the People of the United States" with the DoI's "[w]e, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies...").

Although the Declaration may have influential power, it may inspire the lofty thoughts of poets and believers, and judges may mention it in their summations, it holds no legal power today. It represents a historical document about rebellious intentions against Great Britain at a time before the formation of our government. Of course the Declaration stands as a great political document and it can be great persuasive authority, but it is NOT LAW. See, e.g., The Influence of the Declaration of Independence through History: How American Politicians, And The Supreme Court, Have Invoked It ("The Declaration of Independence does not create individual rights, as the Constitution does. Indeed, it technically has no legal effect."); The Declaration of Independence and International Law ("Yet the Declaration was neither a statute nor a constitution. It was originally irrelevant to domestic law, however often its ideals may have since been invoked. It was, like 'the Gettysburg Address, another piece of war propaganda with no legal force' and could not therefore be part of the fundamental law of the United States.2 It may have helped to constitute American ideals of 'life, liberty and the pursuit of happiness,' but it was not intended to become a document of constitutional law..."); The Declaration of Independence ("[T]he Declaration of Independence, while a momentous document that defined this country, has little, if any, binding legal effect. ...The Supreme Court has generally held that the Declaration does not have the force of law, and no words in the Declaration can give rise to legal rights independently. One major justification for this view is that the Declaration’s purpose was to separate the United States from Britain, not to prescribe legal rights for the people living in the colonies.")

According to Jim Allison's essay, "The United States Supreme Court and the Declaration of Independence," a quick search at Findlaw indicates that there are at least 100 United States Supreme Court cases that mention the words "Declaration of Independence" somewhere in the dicta of that opinion. Yet, not one single case can be found where the authority for the holding in that case was the Declaration of independence. There is not a single case that was "specifically decided on the Declaration of Independence or its provisions." No decision has turned or can turn on the Declaration of Independence itself. I have independently confirmed this with my own search of Findlaw's database of SCOTUS cases. To the contrary, Justice Antonin Scalia, for example, has expressly said: "The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts." Troxel v. Granville, 530 U.S. 57 (2000) (Scalia, J., dissenting).

Pulitzer Prize-winning and prolific author, journalist, and historian, Professor Gary Wills explained in
Inventing America, Jefferson's Declaration of Independence (Vintage Books, June 1979) pp. xiii-xxiv:

For one thing, the Declaration is not a legal instrument, like the Constitution. Each phrase of the latter document has been tested in courts and in legal classrooms, under strict rules of interpretation, with consequences of the most serious kind riding on the results of such inquiry. Men go free or go to jail, depending on the reading of a phrase. The Declaration, having no such force of law, has not undergone this discipline of "construction," strict or loose. Besides, for the Constitution we have the long drafting process recorded in Madison's notes, the arguments of the framers voiced in protracted debate, the records of ratifying conventions in each state, along with the authoritative exposition of federal doctrine by "Publius." There are no notes from the drafting or acceptance of the Declaration, which was by comparison the work of a few days.

Conservative Senator Charles Grassley (R-Iowa) on Day Two of the Confirmation Hearings of Supreme Court Nominee Elena Kagan admitted: "I know the Declaration of Independence is not the law of the land, but it does express a philosophy of why we went to war and why our country exists." (emphasis added)

Even uber-conservative, uber-Christian Dominionist Rev. William Einwechter has recognized in his essay Declaration of Independence and National Renewal:

The Declaration is important in American history, but it should not be made into something that it was not. Some would make the Declaration into the fundamental statement of the principles upon which America was founded. Others contend that it is a legal document having the force of law. In line with this, there is a popular view today that states that the Declaration is related to the U.S. Constitution in the same way that an organization's articles of incorporation are related to its by-laws. Thus, they would accord the Declaration a legal tie to the Constitution and an authoritative standing in the interpretation of the Constitution.

But the Declaration of Independence was not specifically any of these. It was a political instrument designed to achieve some very distinct purposes: 1) to sever the political bonds between the colonies and England, and to justify such action to the nations of Europe (so as to secure their aid in the coming struggle with England); and 2) to unite the colonies through a carefully worded affirmation of political principles. As Gary North states: "The Declaration had two primary goals: to serve as a unifying statement of principle for the diversified thirteen colonies, and to serve as a propaganda tract for foreign policy."

Note: Some of the above is shamelessly stolen from Jim Allison's Declaration of Independence Is Not Law.

⁵The idea that such injunctions are country to the ideas of the Founders is inane, as explained above.

⁶Already answered.

⁷Already answered.

⁸Impeaching (or even attempting to impeach) Chief Judge Walker or Judge Bolton for doing their constitutional duty -- and simply making a single decision with which you disagree -- would be absurd and contrary to the rule of law.

Article II, Section 4 of the Constitution provides: "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Judges are among these civil officers. Cf. Nixon v. United States, 506 U.S. 224 (1993). Article I, Sections 2 and 3 set forth the procedure to be followed for such impeachment and convictions.

The serious nature of impeachment is reflected in the fact that the House of Representatives has only moved seriously to impeach nineteen federal officials in the more than 200 years since the Constitution was ratified. These include two presidents, a cabinet member, a senator, a justice of the Supreme Court, and fourteen federal judges. Of those, the Senate has convicted and removed seven, all of them judges. See, e.g., A Short History of Impeachment; ABA: Impeachment: A Look at the Process One site calculates there have been a total of 3,027 federal judges. That makes an impeachment rate of .4%, or four-tenths of one per cent, of all federal district, appellate, and Supreme Court judges who have ever been on the bench. See Impeachment

Here is a list from the Federal Judicial Center of all federal judges that have ever been impeached:

1. John Pickering, U.S. District Court for the District of New Hampshire. Impeached by the U.S. House of Representatives on March 2, 1803, on charges of mental instability and intoxication on the bench; Convicted by the U.S. Senate and removed from office on March 12, 1804.

2. Samuel Chase, Associate Justice, Supreme Court of the United States. Impeached by the U.S. House of Representatives on March 12, 1804, on charges of arbitrary and oppressive conduct of trials; Acquitted by the U.S. Senate on March 1, 1805.

3. James H. Peck, U.S. District Court for the District of Missouri. Impeached by the U.S. House of Representatives on April 24, 1830, on charges of abuse of the contempt power; Acquitted by the U.S. Senate on January 31, 1831.

4. West H. Humphreys, U.S. District Court for the Middle, Eastern, and Western Districts of Tennessee. Impeached by the U.S. House of Representatives, May 6, 1862, on charges of refusing to hold court and waging war against the U.S. government; Convicted by the U.S. Senate and removed from office, June 26, 1862.

5. Mark W. Delahay, U.S. District Court for the District of Kansas. Impeached by the U.S. House of Representatives, February 28, 1873, on charges of intoxication on the bench; Resigned from office, December 12, 1873, before opening of trial in the U.S. Senate.

6. Charles Swayne, U.S. District Court for the Northern District of Florida. Impeached by the U.S. House of Representatives, December 13, 1904, on charges of abuse of contempt power and other misuses of office; Acquitted by the U.S. Senate February 27, 1905.

7. Robert W. Archbald, U.S. Commerce Court. Impeached by the U.S. House of Representatives, July 11, 1912, on charges of improper business relationship with litigants; Convicted by the U.S. Senate and removed from office, January 13, 1913.

8. George W. English, U.S. District Court for the Eastern District of Illinois. Impeached by the U.S. House of Representatives, April 1, 1926, on charges of abuse of power; resigned office November 4, 1926; Senate Court of Impeachment adjourned to December 13, 1926, when, on request of the House manager, impeachment proceedings were dismissed.

9. Harold Louderback, U.S. District Court for the Northern District of California. Impeached by the U.S. House of Representatives, February 24, 1933, on charges of favoritism in the appointment of bankruptcy receivers; Acquitted by the U.S. Senate on May 24, 1933.

10. Halsted L. Ritter, U.S. District Court for the Southern District of Florida. Impeached by the U.S. House of Representatives, March 2, 1936, on charges of favoritism in the appointment of bankruptcy receivers and practicing law while sitting as a judge; Convicted by the U.S. Senate and removed from office, April 17, 1936.

11. Harry E. Claiborne, U.S. District Court for the District of Nevada. Impeached by the U.S. House of Representatives, July 22, 1986, on charges of income tax evasion and of remaining on the bench following criminal conviction; Convicted by the U.S. Senate and removed from office, October 9, 1986.

12. Alcee L. Hastings, U.S. District Court for the Southern District of Florida. Impeached by the U.S. House of Representatives, August 3, 1988, on charges of perjury and conspiring to solicit a bribe; Convicted by the U.S. Senate and removed from office, October 20, 1989.

13. Walter L. Nixon, U.S. District Court for the Southern District of Mississippi. Impeached by the U.S. House of Representatives, May 10, 1989, on charges of perjury before a federal grand jury; Convicted by the U.S. Senate and removed from office, November 3, 1989.

14. Samuel B. Kent, U.S. District Court for the Southern District of Texas. Impeached by the U.S. House of Representatives, June 19, 2009, on charges of sexual assault, obstructing and impeding an official proceeding, and making false and misleading statements; Resigned from office, June 30, 2009. On July 20, 2009, the U.S. House of Representatives agreed to a resolution not to pursue further the articles of impeachment, and on July 22, 2009, the Senate, sitting as a court of impeachment, dismissed the articles.

15. G. Thomas Porteous, Jr., U.S. District Court for the Eastern District of Louisiana. Impeached by the U.S. House of Representatives, March 11, 2010, on charges of accepting bribes and making false statements under penalty of perjury. (Still pending).

These examples should make clear that impeachment is reserved for extreme cases. Bribery, perjury, and treason are among the least ambiguous reasons meriting impeachment. Lawyers and historians are still arguing about the exact meaning of "high crimes and misdemeanors," dividing into three schools of thought about the appropriate definition: (1) serious criminality evidenced by breaking existing law; (2) an abuse of office, and (3) the Alexander Hamilton standard (Federalist 65) of "violation of public trust." link Many experts agree that there are different standards for impeachable and criminal conduct. In the words of Dean John D. Feerick of Fordham University School of Law, in an article published in 1984, "Most authorities agree--and the precedents are in accord--that an impeachable offense is not limited to conduct which is indictable. Conduct that undermines the integrity of a public office or is in disregard of constitutional duties or involves abuse of power is generally regarded as grounds for impeachment. Since impeachment is a drastic sanction, the misconduct must be substantial and serious." See, e.g., A Short History of Impeachment; ABA: Impeachment: A Look at the Process

Judicial independence is implicated when impeachment is threatened in response to an unpopular decision. Even an “incorrect” decision is not grounds for impeachment. The appellate process is one method of correcting erroneous decisions. Former Rep. Robert Kastenmaier (D) of Wisconsin explained the proper role of impeachment as it regards federal judges: “Federal judges should not and cannot be impeached for judicial decision making, even if a decision is an erroneous one. The conduct . . . entering a judgment and order—is an act that judges are required to do under the Constitution . . . . If this was otherwise, the impeachment remedy would become merely another avenue for judicial review.” If judges have cause to fear impeachment for legally correct but unpopular decisions, they will become interested parties and their ability to render impartial decisions will be compromised. See American Judicature Society: Impeachment and Judicial Independence

Certain processes are in place to prevent or correct erroneous decisions. One method is the appeals process, which is the process by which higher courts review the decisions of lower courts for error—whether legal, factual, or judicial. A high court can reverse, or overturn, or otherwise alter a decision of a lower court. The appeals process protects litigants against error committed by trial judges, attorneys, and jurors. Also, judicial misconduct is dealt with through judicial councils. Complaints about the misconduct of a federal judge are governed by the Judicial Councils Reform and Judicial Conduct and Disabilities Act of 1980. The Act sets out procedures for filing a complaint against a judge, and provides avenues for discipline of a judge if the council deems necessary after reviewing a complaint. There is a judicial council in every federal circuit. See American Judicature Society: Impeachment and Judicial Independence

In 1970, even in arguing for the impeachment of a Supreme Court Justice William O. Douglas on the basis of a lack of "good behavior," then Minority Leader of the House of Representatives Gerald Ford recognized the error of the type of action you suggest:

I would never advocate action against a Member of [the Supreme Court] because of his political philosophy or the legal opinions which he contributes to the decisions of the court. ... [A] judge's right to his legal views, assuming they are not improperly influenced or corrupted, is fundamental to our system of justice. ... We cannot and should not remove a Federal judge for the legal views he holds -- this would be [] contemptible ... Nor should we remove him for a minor or isolated mistake ...

Gerald Ford's Remarks on the Impeachment of Supreme Court Justice William Douglas, April 15, 1970

Bottom line: your post's arguments, particularly your suggestion that U.S. District Chief Judge Walker be impeached are beyond absurd. They not only don't pass the laugh test, but also enter into the area of the dangerous undermining of basic principles of our Republic.

[Buffett and Colbert]

TCT, I agree with the person who said that reading your posts is like having really good sex.

[The Resurgent Dream]

I'm 2/3rds a lawyer. Does that count?

What the fuck does that even mean?

In Canada, you don't get to call yourself a lawyer unless you've actually passed the Bar. In fact, you can be disbarred before you ever get barred for passing yourself off as any sort of lawyer, when you aren't.

It was a tongue-in-cheek comment which does not constitute practice without a license under the Minnesota Rules of Professional Conduct or under relevant Minnesota law as it makes clear to the reasonable reader that I am not and am not purporting to be licensed to practice law in the State of Minnesota or in any other jurisdiction. Relax a bit. It's just a law school joke.

I am a third year law student. I am also a certified student attorney under Minnesota's student practice rule. That means the Supreme Court of Minnesota has certified me competent to practice law, including first chairing litigation, provided that I am assisted and supervised by a member of the Minnesota Bar. I have, of course, only done so a handful of times on relatively petty matters. Real student practice rules don't work like the one in Legally Blond. Most of my relevant work experience is as a legal researcher in several fields including, more pertinently, sexual orientation and the law.

That was too much effort and explaining for a cheesy joke. Back to the topic...