hezekiah jones

Um ... according to judicial review doesn't it take a court to decide whether or not there is a constitutional infringement in the first place?

Layman

Actually, you are completely and perhaps intentionally missing the point. If references to "under God" are in fact, "prohibited" by the Establishment Clause, then they should be reversed by the Court. But since Scalia does not believe that references to "under God" are a violation of the Establishment Clause, they are matters best addressed by the legislature. Similarly, if a police tactic or method is not prohibited by the Fourth Amendment -- such as using deceptive tactics to obtain a confession from a defendant -- then it is up to the legislature or the executive to decide whether to ban such tactics or not.

No, people who are upset over government action that, in fact, violates the c&u clause, the First Amendment, the Fifth Amendment, and the Sixth Amendment, should have their greivances addressed by the Courts.

But all you are doing is begging the question--Scalia is not rejecting the Doctrine of Judicial Review, he's expressing the opinion that because the reference to "under God" is not unconstitutional, it is a matter that should be addressed to the legislature.

As far as I can see, the problem is your and others obvious mischaracterizations of Scalia's statements. He believes in and has exercised the Doctrine of Judicial Review on many occassions. Most notably when he voted to strike down the very religion-friendly RIFRA law.

Layman

Unless it is a "political question," of course it does.

Which does nothing to change the fact that Scalia is expressing his opinion that since there is no constitutional violation, the matter should be addressed by the legislature. Scalia did not say that all legal claims regarding the establishment clause should be dismissed and referred to the legislature. He said that this issue is one that should be decided by the legislature--because there is no constitutional violation. I did not see anywhere where Scalia said that the Ninth Circuit lacked jurisdiction to hear the Newdow case. What he seems to be saying was that Newdow was wrongly decided. Big difference.

And I thought you weren't suggesting that Scalia was denying the Doctrine of Judicial Review here?

hezekiah jones

"Similarly, if a police tactic or method is not prohibited by the Fourth Amendment -- such as using deceptive tactics to obtain a confession from a defendant ..."

And which branch of government decided that they were not prohibited by the Fourth Amendment?

Layman

See above.

The Doctrine of Judicial Review says that the Court makes these decisions. Scalia did not say or indicate that the Court lacked jurisdiction to determine what is a violation of the Establishment Clause. He said that Newdow was wrongly decided. And it was wrongly decided not because the Ninth lacked jurisdiction to hear challenges based on the Establishment Clause, but because such references to God in government statements are not unconstitutional.

This is basic stuff guys. I know you are not really this dense.

hezekiah jones

"The Doctrine of Judicial Review says that the Court makes these decisions."

Ah. But if it's already been decided in advance (by whomever, Layman, Scalia, Congress, the Executive Branch ...) that a constitutional question has not been raised, there is no need for judicial review. Correct?

Layman

Of course not and Scalia said nothing of the sort.

Nowhere did Scalia say that if the Executive Branch determines that something is constitutional is there no need for Judicial Review. Scalia has refused to accept the Executive Branch's legal opinion -- as articulated by the Solicitor General's office -- on hundreds and hundreds of occassions. For example, he rejected the Executive Branch's legal opinion that RIFRA did not violate the Constitution and invalidated that statute as unconstitutional.

Be honest HJ, are you just trying to waste my time or do you have ANY reason to believe that Scalia has rejected the Doctrine of Judicial Review?

The issue is not jursidiction, it is interpretation. In other words, Scalia is not saying that the Courts lack jursidiction to interpret the Establishment Clause, but that the Courts have misinterpreted that Clause in many instances.

hezekiah jones

"Of course not and Scalia said nothing of the sort."

I never said he did. I'm asking you.

"Be honest HJ, are you just trying to waste my time or do you have ANY reason to believe that Scalia has rejected the Doctrine of Judicial Review?"

I never said any such thing. Mark Tushnet, maybe. Scalia, I doubt it. What Scalia apparently said, according to you, is that the 1954 Act of Congress that inserted the words "under God" into the Pledge was not an act that raises a constitutional question. And as such it is an issue (if it is an issue at all) for the legislative branch, and not the judicial branch. Correct?

Philosoft

I'm sure glad we have you here to tell us exactly what Scalia meant because it seems like much less than what he said.

Look, I'm trying very hard to limit his words to the meaning you claim they carry. It's just not working. If he only meant what you say he meant, then why didn't he say just that? Why did he make a statement that can be easily interpreted to mean something else when there are thousands of other perfectly good ways to say what you claim he meant?

Understand, I fully believe Scalia supports Judicial Review. I am not saying he ignores or flaunts it. What I am saying is that he appears to have a particular standard of "common sense" jurisprudence that others do not share. If it were the case that "under God" references and other "such decisions" had been previously found constitutionally permissible in a large percentage of cases, I would agree with you. Then, Scalia might have said, "The courts have long since decided these issues in favor of consitutional permissibility." But he did not because he could not.

Hell, I'm still not sure what he meant by "such decisions."

hezekiah jones

"If it were the case that 'under God' references and other 'such decisions' had been previously found constitutionally permissible in a large percentage of cases, I would agree with you."

Indeed. I daresay "first impression" seems to be evading our interlocutor.