It was good to chat with you last night.
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.
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.
Pursuant to Article VI, Clause 3 (above), all judges are obligated to adhere to the Constitution, which clearly imposes this duty upon the Supreme Court as a whole. Pursuant to Article VI, Clause 2 (above), the Constitution defines the fundamental and superior law in the United States.
By inherent definition it is the duty of courts to interpret and apply applicable laws. The only Court mandated by the Constitution is the Supreme Court. [Lower courts may be established.] The highlighted language of Article III clearly gives the Supreme Court all judicial power to judge cases at law or equity including, but not limited to, cases where to which the country is a party.
The confluence of these terms in the Constitution implies the Supreme Court is conferred with the power and the obligation to determine what statutes (or actions) are unconstitutional. In most cases, as you can read from the language, the Supreme Court would be an appellate venue in such actions, making it the court of last resort in constitutional cases.
I am, however, going to mark this as a win for you. My claim was that judicial review was an explicit power granted by the Constitution, and it is clearly an implied one.
Your claim, as you stated it, or as I heard it, was that judicial review was not authorized by the Constitution. This is silly, of course, especially when one considers the impracticality of a country being unable to officially interpret its supreme law by an entity powerful enough to credibly summon enforcement authority.
While I do not, in general, give great credence to arguments that point to how many times an action has occurred as proof that it is thereby compliant with the law, I will note that the USSC has apparently declared statutes or actions unconstitutional more than 160 times. If your claim is true that the Supreme Court was not conferred with the power of this type of judicial review, then I would tend to believe that someone would have long ago pointed it out and been successful arguing your premise. So far no one has.
However, for a brief time, someone may have temporarily convinced the Supreme Court to back off this kind of check and balance. That guy was FDR, who, in the middle of the 1930’s, convinced the USSC to allow much of the legislation of the New Deal through, after the court had declared several of its initial pieces unconstitutional. It probably comes as no surprise to you that my belief is that much of what vexes America today was sown during this time.
The foregoing was one sub-topic of the larger debate last night about campaign financing. What I urge, before any of us debate this again, is a review of the several cases that have declared parts of the McCain-Feingold campaign finance law unconstitutional. Most, if not all, of such cases have been founded on the violation of the First Amendment right of free speech.
Hopefully you know that, when people claim that “money is speech”, this is simply shorthand lingo for asserting that everyone has a general right to spend their own wealth as they see fit, especially when it comes to expenditures that promote their own views, underwrite their advocacy for something or someone, or underwrite their opposition against something or someone.
The USSC has consistently held that such expenditures may not be constrained or limited so long as they are independently made. Citizen's United simply affirms this right for individuals and corporate entities to band together for purposes of political advocacy as, for example, unions have done since 1881.
John McCain and Russ Feingold had legions of intelligent, well informed and educated people advising them on their campaign finance bill; and now much of that legislation has fallen by the wayside because it has been judged non-compliant with our First Amendment rights. Their concerns were as legitimate as yours regarding money in campaigns; however, there is not likely a way in which your solutions are going to work better than those attempted by their legislation.
What I attempted to suggest to you last night was that, instead of controlling campaign spending, “your side”, instead, should simply bring more money to the table in the next election, if we are to believe your claim that funding is absolutely, or highly, significant in determining the outcomes.
This makes the world a very simple place.
What I also attempted to argue was that, if we accept that elections are determined by funding, then they are decided long before election day, when the donors choose the winners. In this case, the donors clearly act only on the message since, by definition, the funding of the façade of the campaign has yet to be supplied.
Either way, the message matters. If your message isn’t attracting enough money, then it might be time to reconsider its content.
This has been long-winded; but this, in turn, may indicate the passions you generated within me by your consideration of this topic. Rest assured that I am grateful for your intellect and your participation in the discussion last night.
My hope is that you will eventually look upon the recall election in Wisconsin as a wonderful, and rather unique, exercise in direct democracy. Few countries enjoy the privileges associated with initiatives, referenda, and recalls that America does.
Please let me end with two final thoughts.
First, work to insure that money does not corrupt candidates. Independent expenditures should not imply, much less force, decisions or actions by elected winners. After all, they are (theoretically) made by those who already agree with the candidate. Hence, do not fear such expenditures.
Second, never lose hope that the ideas, commitments, righteousness, or policies of a candidate or a proposition is the determinative factor in free and fair elections. Even in the context of lots of campaign expenditures, don’t presume that your fellow voters aren’t smart enough to separate truth from lies, dissembling from forthrightness, or facts from fiction.
You’re an intelligent guy fully capable of making these distinctions yourself. However, your capabilities form no basis to conclude that others, likely less smart and likely less well-informed than you, cannot interpret the messages as well as you can.
In this vein, one of my favorite theories is that the simple concept of checkbook arithmetic is often far more powerful than the most ardent Socialist.
"Non scholae sed vitae discimus"
("We learn not for school, but for life")