Judicial Review: What's Your Opinion?Follow

Heh... "opinion" in a topic about judicial review. I'm hilarious!

Actually, I'm an annoying ***. It's come out a lot more since I moved to the south a few years ago... but I swear, it's because Florida keeps doing dumb things. Exhibit A: a Florida bill allowing student-led prayer. The bill mandates that prayer can be led in schools if it meets these criteria:


On the whole sounds ok by me... except it's specifically to allow prayer at school events (assemblies, games, etc). Due to court cases like Santa Fe School Dist. v Doe (2000), student-led prayer at school events using school property (ie, loudspeakers) and on school grounds is unconstitutional, as it goes from private speech to public speech and thus strives to give the school's seal of approval. The Supreme Court seems pretty clear on this. But my discussions with people on this almost inevitably go like this:

Me: It's a silly case to rule on, but the court gave their opinion about it and they have the final say in constitutionality.
Other: Oh yeah? There is no separation of church and state! It doesn't exist!
Me: Sure it does. It's interpreted from the Establishment Clause. It's a fact in our judicial system.
Other: But the words aren't in the Constitution!
Me: The Supreme Court's opinions set the interpretation of the Constitution. It's how our legal system has worked for over two centuries...
Other: But the Constitution doesn't give them that power!
Me: True. But again... that's how the legal system rolls. Interpreting constitutionality isn't give to any branch. And it wouldn't make much sense to have the courts rule and the president to just go "Nah, I don't agree" all the time. Besides, Congress can start the amendment process if something is truly a glaring error and has enough popular support; and the courts need to abide by the new amendment.
Other: But it's not in the Constitution! I declare this ruling unconstitutional!
Me: Sigh.

It is a fair point: judicial review (the power to decide the constitutionality of laws and invalidate them if deemed unconstitutional) is not ascribed to the judiciary. And a corollary is making our law system a common law system based on precedent rather than legislation... but that's a somewhat different topic. But since Marbury v Madison in 1803, the court has had this power and the other branches just kinda go "Yeah, why not?" The conversation above happens with all sorts of topics: explaining why the Bill of Rights applies to state law as well as federal (1890s), why there's a separation of church and state (1870s), why state-sponsored prayer isn't allowed in school (1960s), etc. It seems though, with the growing anger against "activist judges," more and more people seem to use the argument that judicial review shouldn't exist, and that someone else should decide if cases are constitutional or not. Who that "someone else" is usually becomes "what I want" but others bring up Congress or a vote to the people. To me, it's always made sense to have a semi-permanent high court of legal experts... although the system is not without its issues.

So, I'm curious what you all think. Does the current system of judicial review work best? Should it become codified in the form of an amendment... one that would likely not be passed in today's political climate? Or should constitutionality be left up to someone else... another branch, or a vote across the country?

I was gonna go with the first one, but I think you sweetened the pot too much on the fourth to pick anything else.

I think the FL bill is okay as long as the student led prayer group does not have access to a microphone/PA system to broadcast said prayer so loudly every student has to hear it whether they want to or not.

Quiet prayer circle by the basketball team before they go on the court? Sure, why not. Invocation prayer by students prior to a mandatory school-wide assembly? Bzzzzttt! No!

It can make a person really uncomfortable to have to stare at the ceiling rolling your eyes while your classmates asks tiny little baby Jesus to help them get through final exams.

Edited, Jan 19th 2012 1:55pm by catwho

Surely you can find better rationale than that? A little discomfort while respeting someone else's beliefs? I mean, it's no worse than having to attend a pep rally when you don't give a damn about whatever the pep rally is for.

During any prayer I end up imagining George Burns nearby, complaining about how "they just don't get it."

I feel pretty much the same way. However, I also can see where it seems... wrong... to sponsor only one type of prayer over others. Equal opportunity to present should be fine in my book, but I'm not a SCotUS judge.

... yet.

While the power to overturn acts of congress (and lesser government entities) may not be explicitly granted to the SC by the constitution, the implication of this power is made very clear.





The discussion of the judicial power granted by the Constitution, with specific regard to the idea of "judicial review" as it is defined today is largely academic, and there is evidence that the implication is more concrete elsewhere in the early U.S. articles of government. A classic example is this excerpt from the 1780 constitution of Massachusetts.



Given that this document existed long before the U.S. Constitution was drafted, it's not unreasonable to argue that this "impartial interpretation of the laws and administration of justice" was the implicit power granted by the U.S. constitution, even if the wording doesn't expressly grant it.

I think it's important to ask not only whether judicial review is proper, but also whether it achieves its aims.

Judicial review of administrative and executive discretion is useful to prevent every-day abuses of power. Take things further than that and its effectiveness is more questionable.

It isn't the non-religious I worry about - it is the people with different relgions and beliefs... also it is the implied social sanction of the beliefs being stated. If the school is doing prayers by a bunch of different people with different religions I would have less problem with it.

Also as someone who has been actively persecuted by certain sects of Christianity, I would understand some people feeling really uncomfortable with being in a situation where they are forced to listen to that stuff. Lots of prayer I've heard in my life is actually pretty hateful and controversial. As a ***** person, I guess I would just be a little worried as a if I had a child in the school to see the school offering a social sanction (direct or indirect) of a religion which preaches hateful things about my family.

I mean, really, I went to church last sunday - and prayer belongs there and has meaning there, (and the denomination is cool to ******) but I feel really uncomfortable with the idea of mixing prayer into public schools, especially considering most christian churches are of the hateful, not the accepting variety.



Edited, Jan 19th 2012 4:56pm by Olorinus

Yeah, that's sort of why I said it's ok if it's student-led, not if it's led by the school administration.



Yeah... again. I don't see the students praying for the gay people to go to hell. It's not the school offering it. That's the whole point of the thread....



Prayer belongs anywhere someone needs it. It has meaning everywhere. You're hung up on the idea that the school is sanctioning it, and we're not talking about that at all.

That's a nice little rant, but I think you're letting your own prejudices get in the way. I agree that if some other student wishes to lead the students in a prayer from another religion, it should also be welcomed. And if it is not, then no one can lead a prayer. But I think you take it too far.

As someone who has been actively persecuted by the same certain sects of Christianity, and has been actively assaulted with small arms fire/rocket propelled grenades/improvised explosive devices, I don't understand how anyone can use the actions of a small subset of people to represent the larger whole. I don't see how "Our Father, who art in Heaven, we thank you for your blessings" or "Allah be with you" can make anyone uncomfortable.