The Instigator
mongeese
Pro (for)
Losing
8 Points
The Contender
JBlake
Con (against)
Winning
14 Points

The United States judicial system is seriously flawed because of our current Judicial Review.

Do you like this debate?NoYes+1
Add this debate to Google Add this debate to Delicious Add this debate to FaceBook Add this debate to Digg  
Post Voting Period
The voting period for this debate has ended.
after 4 votes the winner is...
JBlake
Voting Style: Open Point System: 7 Point
Started: 5/9/2009 Category: Politics
Updated: 8 years ago Status: Post Voting Period
Viewed: 6,078 times Debate No: 8174
Debate Rounds (3)
Comments (9)
Votes (4)

 

mongeese

Pro

I affirm the above resolution.

United States judicial system - http://en.wikipedia.org...
Seriously - extremely (http://www.merriam-webster.com...)
Flawed - an imperfection or weakness and especially one that detracts from the whole or hinders effectiveness (http://www.merriam-webster.com...)

Okay, I think that our judicial system is seriously flawed, but for this debate, I am only going to cover one.

1. The Supreme Court
According to "The Politically Incorrect Guide to the Constitution", the Founding Fathers had intended for the judicial branch to be the weakest branch of the federal government. Until, of course, Marshall devised the idea of judicial review. http://en.wikipedia.org...
This now makes the judicial branch the most powerful branch, as it has the power to interpret the Constitution, using any wording flaws they choose.
Additionally, the president has the power to appoint a Justice to the Supreme Court for life, with approval from Senate. Because the Supreme Court usually only reviews highly controversial subjects, the only thing that really matters is whoever was president at the time a Justice died or retired, as long as he also had control of the Senate. This potential abuse of power is a serious flaw.

Thank you for wanting to debate, JBlake.
JBlake

Con

I would like to begin by offering my sincere gratitude to Mongeese for providing me with the opportunity to argue governmental theory with him. I accept his definitions at present, but reserve the right to challenge them later should they be improperly used. I have deduced from the resolution that Pro wishes to address the value of Judicial Review, not its validity. Therefore, I will attempt to keep arguments of its legal status to a minimum. However, should he wish to argue its validity I am fully prepared to do so.

I stand in firm negation to the resolution that:
The United States Judicial Branch is seriously flawed due to its power of Judicial Review.

In the opening round, Mongeese has offered two contentions to support this resolution. First, he contends that Judicial Review (henceforth known as ‘JR') is not a right protected by the Constitution. Second, he argues that JR gives the Judiciary too much power – a power with an unacceptable risk of abuse. I will address each issue below, and then offer an argument of my own.

---------

FOUNDING INTENTIONS

I will begin by questioning the validity of the sources provided by my opponent. Although his link to the Wikipedia article on Judicial Review was broken, I was able to locate it anyway. This article makes no mention of any of the arguments advanced by Pro, nor does it cite "The Politically Incorrect Guide to the Constitution." If Pro hopes to utilize the latter source, he should provide page numbers and perhaps a brief outline of the argument therein.

The truth is, the primary source material is not very clear on the issue. Judicial Review is neither explicitly sanctioned, nor is it strictly prohibited within the language of the Constitution. According to James Madison's "Journal of the Federal Convention," there was some debate on the issue (giving a veto to the Judiciary). Some delegates were in favor, others were opposed. After postponing the issue several times, no compromise was decided upon.[1] So, as with many other issues, JR seems to have been left to later generations to sort out. Had they intended for JR to be illegal, they would have expressly prohibited it as did Virginia's 1776 State Constitution. (http://en.wikipedia.org...)

The framers clearly intended for some body to exist to act as a check on the legislature and determine constitutionality. Madison's "Journal" shows that some wanted the judiciary to hold this sole role, others hoped to reserve this role for the executive, and still others wanted both branches to jointly hold the power of review. None spoke out in favor of leaving review to the legislature, or out of the federal government at all.[2]

There is more than enough indirect language in the Constitution to support JR. Alexander Hamilton, in Federalist Essay No. 78, asserted that determining the constitutionality of laws was, by nature, the jurisdiction of the Judiciary:
"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."[3]

The Constitution was established as the supreme law of the land, as per Article VI, Clause 2. As such, no federal law may be passed that is contrary to the constitution. As Hamilton notes, this is a legal issue to be tried within a court of law. This, of course, is the jurisdiction of the Judicial Branch.

TOO MUCH POWER TO THE JUDICIARY

Pro's second contention is that the doctrine of JR provides too much power to the Judiciary. On theoretical grounds, he supposes that JR puts the nation at risk of Judicial abuse and arbitrary use of power, although he offers no explanation as to why this is so. I hope that by Round 2 he is able to offer some reasons.

----------
Governmental Theory

CONTENTION ONE - Without Judicial Review there is not a sufficient check on the Legislature.

With no body to question the validity, legality, and constitutionality of laws passed by the legislature, the latter body is beholden to no one. They would have free reign to oppress the minority, or pass any number of laws anathema to the Constitution.

CONTENTION TWO - The Judiciary is in the best position to determine Constitutionality.

a) This is an extension of Hamilton's argument above. Interpretation of law is the jurisdiction of the courts.
b) Common sense suggests that the Legislature is an improper place to determine the validity of laws passed by itself.
c) The Executive does not possess the proper powers to review laws once they have been passed.

--------
1. James Madison. Journal of the Federal Convention. Pgs 101-102; 398-405. A free version is available here: http://books.google.com....
2. Ibid. Saturday, July 21. Pgs 398-405
3. Alexander Hamilton. Federalist No. 78. Para. 7. http://www.constitution.org...
Debate Round No. 1
mongeese

Pro

I will begin by questioning the validity of the sources provided by my opponent. Although his link to the Wikipedia article on Judicial Review was broken, I was able to locate it anyway. This article makes no mention of any of the arguments advanced by Pro, nor does it cite 'The Politically Incorrect Guide to the Constitution.' If Pro hopes to utilize the latter source, he should provide page numbers and perhaps a brief outline of the argument therein."
The source outlined the history of Judicial Review. The rest was more about the Supreme Court (http://en.wikipedia.org...). I apologize for the broken link. About the PIG, the fact was one of the random tidbits on the back cover. http://books.google.com...
Scroll all the way down.

"The truth is, the primary source material is not very clear on the issue. Judicial Review is neither explicitly sanctioned, nor is it strictly prohibited within the language of the Constitution. According to James Madison's 'Journal of the Federal Convention,' there was some debate on the issue (giving a veto to the Judiciary). Some delegates were in favor, others were opposed. After postponing the issue several times, no compromise was decided upon.[1] So, as with many other issues, JR seems to have been left to later generations to sort out. Had they intended for JR to be illegal, they would have expressly prohibited it as did Virginia's 1776 State Constitution."
According to the PIG, page 78, Marshall's use of judicial review was actually unconstitutional, and he had increased the power of the Supreme Court by introducing judicial review to extend its jurisdiction far beyond its intentions.

"The framers clearly intended for some body to exist to act as a check on the legislature and determine constitutionality. Madison's 'Journal' shows that some wanted the judiciary to hold this sole role, others hoped to reserve this role for the executive, and still others wanted both branches to jointly hold the power of review. None spoke out in favor of leaving review to the legislature, or out of the federal government at all.[2]"
Alright, so the concept of judicial review is good, but where it is now, it is dangerous.

"Pro's second contention is that the doctrine of JR provides too much power to the Judiciary. On theoretical grounds, he supposes that JR puts the nation at risk of Judicial abuse and arbitrary use of power, although he offers no explanation as to why this is so. I hope that by Round 2 he is able to offer some reasons."
I said that whatever party controls the Senate and the President at the time of a death/retirement, which allows that party to have a stronger influence over its own cases, and therefore, even if the majority of people had left a politically party long ago, the once-majority, now-minority party would still have the power to automatically abolish any law they want by interpreting the Constitution in any way they please.

"CONTENTION ONE - Without Judicial Review there is not a sufficient check on the Legislature."
Judicial review is good, but giving all of its power to the majority power is dangerous. Making it only nine people, and making them not really representing the people all of the time, makes it worse.

"With no body to question the validity, legality, and constitutionality of laws passed by the legislature, the latter body is beholden to no one. They would have free reign to oppress the minority, or pass any number of laws anathema to the Constitution."
The Supreme Court simply mirrors this problem by being compiled of people chosen by the President and the Senate.

"a) This is an extension of Hamilton's argument above. Interpretation of law is the jurisdiction of the courts.
b) Common sense suggests that the Legislature is an improper place to determine the validity of laws passed by itself.
c) The Executive does not possess the proper powers to review laws once they have been passed."
Yes, but I disagree with how the court is set up to perform Judicial Review.

So, I hope I explained myself well enough here. Thank you for a quick response.
JBlake

Con

Thank you for the quick response, Mongeese.

It would seem that this round will necessarily be a short one for two reasons. Pro has conceded the resolution on more than one occasion and Pro has failed to provide a case for his position. I will show Pro's concessions then briefly respond to his rebuttals. Since he has agreed to all points of my case, it extends to the final round unchallenged.

=========

PRO CONCEDES THE RESOLUTION

Pro has rebutted his own resolution, thus negating it. The following are his relevant statements:
"Alright, so the concept of judicial review is good, but where it is now, it is dangerous."
"Judicial review is good, but giving all of its power to the majority power is dangerous."
"Yes [the judiciary is in the best position to interpret constitutionality], but I disagree with how the court is set up to perform Judicial Review."

Pro concedes that Judicial Review is a positive attribute. Rather than stopping there, he goes on to agree that Constitutional Review is the jurisdiction of the Supreme Court, and that said court is the best equipped to determine constitutionality. These statements directly contradict the resolution that Judicial Review is a flaw of the U.S. Supreme Court.

=========

Pro Claims:
1. "Marshall's use of judicial review was actually unconstitutional, and he had increased the power of the Supreme Court by introducing judicial review to extend its jurisdiction far beyond its intentions."
2. The current use of Judicial Review is dangerous.
3. The Supreme Court has the power to "Automatically abolish any law they want by interpreting the Constitution in any way they please."

Rebuttals:
1. Pro is going to have to offer more than a vague secondary source to prove that Marshall's opinion was unconstitutional and that it stretched the Supreme Court's power beyond its intention. Merely citing a secondary source will not be sufficient in this instance. If he wishes to use the Politically Incorrect Guide as an outline for his argument, he show demonstrate the key points made that support the sources claims.

I have already shown Judicial Review to fall within the boundaries of the U.S. Constitution. Pro has not offered a single rebuttal to this contention. To prove the Politically Incorrect Guide's case, Pro will need to prove that Judicial Review is, in fact, Constitutional. May I suggest Madison's "Journal" as a starting point for searching for evidence.
Should he choose to use the PIG as an outline for his argument, I reserve the right to challenge its validity in the Final Round of debate.

2. The term 'dangerous' is subject for debate. Pro is going to need to both define his meaning of dangerous, and demonstrate how Judicial Review in its current form is dangerous.

3. This is anything but the truth. The Supreme Court does not have complete and arbitrary power over all laws passed by the Legislature. The court does not hold the power to strike down any law, except those contrary to the Constitution. They must demonstrate the unconstitutionality of a law before they can render it void. If they fail in this endeavor they are impeachable by the U.S. Senate.
Furthermore, the Legislature and Executive have the ability (in some cases) to render a law unreviewable. This phenomenon is known as "Judicial Stripping."
(Source: http://en.wikipedia.org...)

========

CONCLUSION
Pro has failed to offer an argument in favor of his resolution, instead contenting himself with merely rebutting a few of my points.
He has failed to provide sufficient sources for the few claims he has made.
He has conceded that Constitutional Review falls within the jurisdiction of the Supreme Court and that it is a positive attribute.

In the final round of debate I urge my opponent to present a full argument in defense of his resolution. My argument extends.
Debate Round No. 2
mongeese

Pro

Thank you for such a solid argument.

"PRO CONCEDES THE RESOLUTION"
There is a difference between the concept of judicial review (http://en.wikipedia.org...) and how we allow the courts to use judicial review today (http://en.wikipedia.org...). I am arguing that we are currently going about judicial review in a dangerous and flawed way.

"1. Pro is going to have to offer more than a vague secondary source to prove that Marshall's opinion was unconstitutional and that it stretched the Supreme Court's power beyond its intention. Merely citing a secondary source will not be sufficient in this instance. If he wishes to use the Politically Incorrect Guide as an outline for his argument, he show demonstrate the key points made that support the sources claims."
http://en.wikipedia.org...
"The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. The Supreme Court was given exclusive original jurisdiction over all civil actions between states, or between a state and the United States, as well as over all suits and proceedings brought against ambassadors and other diplomatic personnel; and original, but not exclusive, jurisdiction over all other cases in which a state was a party and any cases brought by an ambassador. The Court was given appellate jurisdiction over decisions of the federal circuit courts as well as decisions by state courts holding invalid any statute or treaty of the United States; or holding valid any state law or practice that was challenged as being inconsistent with the federal constitution, treaties, or laws; or rejecting any claim made by a party under a provision of the federal constitution, treaties, or laws."
This Act gave the Supreme Court more power than intended in the Constitution:
"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."

"I have already shown Judicial Review to fall within the boundaries of the U.S. Constitution. Pro has not offered a single rebuttal to this contention. To prove the Politically Incorrect Guide's case, Pro will need to prove that Judicial Review is, in fact, Constitutional. May I suggest Madison's 'Journal' as a starting point for searching for evidence.
Should he choose to use the PIG as an outline for his argument, I reserve the right to challenge its validity in the Final Round of debate."
I wish that PIG had a bibliography...
Anyways, why am I the one who needs to say that judicial review is Constitutional? Isn't that your argument?

"2. The term 'dangerous' is subject for debate. Pro is going to need to both define his meaning of dangerous, and demonstrate how Judicial Review in its current form is dangerous."
Dangerous - able or likely to inflict injury or harm (http://www.merriam-webster.com...)
I say that our Judicial Review is quite likely to harm our rights, because of its power to overturn any law with a strict interpretation.

"3. This is anything but the truth. The Supreme Court does not have complete and arbitrary power over all laws passed by the Legislature. The court does not hold the power to strike down any law, except those contrary to the Constitution. They must demonstrate the unconstitutionality of a law before they can render it void. If they fail in this endeavor they are impeachable by the U.S. Senate."
It is quite easy to render a law unconstitutional by using an extremely strict interpretation of the Constitution, and interpreting the words using any definition they please.

"Furthermore, the Legislature and Executive have the ability (in some cases) to render a law unreviewable. This phenomenon is known as 'Judicial Stripping.'"
I cannot find the exact situations in which Judicial Stripping can defeat Judicial Review. Additionally, the Judiciary Act of 1789 seems to have expanded the jurisdiction of the Supreme Court so that Judicial Stripping becomes harder to do.

"Pro has failed to offer an argument in favor of his resolution, instead contenting himself with merely rebutting a few of my points."
The idea of a judicial review is nice, but the way we're doing it is dangerous.

"He has failed to provide sufficient sources for the few claims he has made."
I have PIG to state facts, and Wikipedia to support them.

"He has conceded that Constitutional Review falls within the jurisdiction of the Supreme Court and that it is a positive attribute."
Currently, it is not a positive attribute, because it allows nine people who are unelected to disallow whatever laws they want.

"In the final round of debate I urge my opponent to present a full argument in defense of his resolution. My argument extends."
I do believe I have a full argument now. Feel free to attack it now.

Thank you for this debate.
JBlake

Con

Though slightly disappointing, I thank my opponent for debating the issue of Judicial Review.

Pro has opted not to develop a case despite having three opportunities to do so. In the first round he defined the issue and important terms, but did not draw up an argument. In the second round he contented himself with merely rebutting my points without supplying sufficiently reliable sources or support. Finally, in the most recent round he repeated his activity of the second round and just rebutted a few of my points without going into great detail.

I submit to the audience that I have already won this debate. Pro did not offer an argument to support his resolution. Neither did he rebut my argument with any success. Furthermore, he conceded that Constitutional Review falls under the jurisdiction of the Supreme Court. This means that Judicial Review is protected within the U.S. Constitution.

Pro argues that the Supreme Court, with the power of Judicial Review, has the potential to be dangerous and oppressive. He offers no evidence; no specific cases; not even any hypothetical cases to support this claim. He claims that the current use of Judicial Review goes much too far from the founders' intention of the Courts power, yet he offers no support for this claim either.

Pro claims that it is "quite easy to render a law unconstitutional" by interpreting the Constitution very loosely. He offers no examples and does not explain why it would be "quite easy." Unfortunately for him, the Judiciary Act of 1789 specifically outlines the limits on Judicial Review. I might also add that Pro omitted this portion of Section 25 of the act when he cited it in Round 3:
"But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said constitution, treaties, statutes, commissions, or authorities in dispute."
(Source: Judiciary Act of 1789, Section 25: http://www.constitution.org...)
We can assume that a Justice that strays outside of these boundaries is impeachable. Therefore, the anxiety over Justices wielding too much power is unfounded.

On the other hand, I offered an argument in the very first round of debate. This argument was accepted by Pro on both theoretical and practicable grounds. The only rebuttal he provided was to say that the current form of Judicial Review is different and more powerful than the original. However, as I just mentioned, he offers no demonstrable or hypothetical evidence to support this position. I have provided both.

=========

CONCLUSION
Because Pro failed to offer a case to support his resolution; and
because he failed to provide sufficient evidence in the form of specific cases or hypothetical ones, and he failed to utilize the plethora of available and relevant sources to support his scattered rebuttals; and
because he accepted the bulk of my argument without question, and his responses were insufficient to negate my position; then
the resolution, that the United States' Judicial System is seriously flawed because of its current use of Judicial Review, stands negated.
Debate Round No. 3
9 comments have been posted on this debate. Showing 1 through 9 records.
Posted by JBlake 8 years ago
JBlake
That is, of course, assuming there is no tomfoolery.
Posted by JBlake 8 years ago
JBlake
Thank you, anima.

Mongeese, if you would like to argue about the Supreme Court in general I would be happy to debate that with you as well. Shoot me a couple ideas via PM and we can work out a specific topic.
Posted by animea 8 years ago
animea
Panda, the founding fathers ideals are only overturn through Congressional Amendments, at which time we look to the principles set in the amendments.

Oh, and I voted Con, while I agree with the pros viewpoint, the con definitely won the debate.
Posted by mongeese 8 years ago
mongeese
I'm just going to admit right now, I actually hadn't intended for the debate to be only about judicial review. I had intended for a debate about the Supreme Court in general, but I put JR in the resolution instead. Thus, failure on my part.
Posted by JBlake 8 years ago
JBlake
This is true, among other negative governmental attributes (property requirements, legislative election of the Senate and nomination of presidents, &ct.).

Usually I am the first to point out the folly of lionizing the founding generation. However, I mentioned them because the Pro claimed Judicial Review was unconstitutional. I needed to correct his mistake.
Posted by I-am-a-panda 8 years ago
I-am-a-panda
Founding fathers, founding fathers, if you yanks still followed the founding fathers, you'd be slavers.
Posted by JBlake 8 years ago
JBlake
"I do believe I have a full argument now. Feel free to attack it now."

Unfortunately, you still never made an argument. You offered minor rebuttals (without supporting evidence) to a few of my points, but you did not present a case of your own.
Posted by mongeese 8 years ago
mongeese
And yet, we went BEYOND constitutionality.
Posted by JBlake 8 years ago
JBlake
Good luck drawing up an argument now that you have conceded constitutionality :)
4 votes have been placed for this debate. Showing 1 through 4 records.
Vote Placed by mongeese 8 years ago
mongeese
mongeeseJBlakeTied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:--Vote Checkmark0 points
Who had better conduct:--Vote Checkmark1 point
Had better spelling and grammar:Vote Checkmark--1 point
Made more convincing arguments:--Vote Checkmark3 points
Used the most reliable sources:--Vote Checkmark2 points
Total points awarded:10 
Vote Placed by JBlake 8 years ago
JBlake
mongeeseJBlakeTied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:--Vote Checkmark0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:07 
Vote Placed by RoyLatham 8 years ago
RoyLatham
mongeeseJBlakeTied
Agreed with before the debate:Vote Checkmark--0 points
Agreed with after the debate:Vote Checkmark--0 points
Who had better conduct:Vote Checkmark--1 point
Had better spelling and grammar:Vote Checkmark--1 point
Made more convincing arguments:Vote Checkmark--3 points
Used the most reliable sources:Vote Checkmark--2 points
Total points awarded:70 
Vote Placed by animea 8 years ago
animea
mongeeseJBlakeTied
Agreed with before the debate:--Vote Checkmark0 points
Agreed with after the debate:-Vote Checkmark-0 points
Who had better conduct:-Vote Checkmark-1 point
Had better spelling and grammar:-Vote Checkmark-1 point
Made more convincing arguments:-Vote Checkmark-3 points
Used the most reliable sources:-Vote Checkmark-2 points
Total points awarded:07