Unanimity is required for U.S. courts to strike down laws as unconstitutional

CaliGuy

Banned
What if, rather than a simple majority vote, unanimity was required for U.S. courts to strike down laws as unconstitutional?

For the record, such a proposal, if implemented, would be closer to what Alexander Hamilton had in mind when he said that there needs to be an "irreconcilable variance" (Federalist Paper No. 78) for U.S. courts/judges to strike down laws as being unconstitutional.

Anyway, any thoughts on this?
 
What if, rather than a simple majority vote, unanimity was required for U.S. courts to strike down laws as unconstitutional?

For the record, such a proposal, if implemented, would be closer to what Alexander Hamilton had in mind when he said that there needs to be an "irreconcilable variance" (Federalist Paper No. 78) for U.S. courts/judges to strike down laws as being unconstitutional.

Anyway, any thoughts on this?
Are you including SCOTUS? And what about federal court judges staying a law's implementation until the full court of appeals can hear the arguments? And what about the appeals process? Many appeals require there to be a dissenting vote or the appeal can't go forward. In this scenario are unanimous votes appeal able and what happens in the case of a majority but not unanimous decision?
 

CaliGuy

Banned
Are you including SCOTUS?

Yes, of course.

And what about federal court judges staying a law's implementation until the full court of appeals can hear the arguments?

Unanimity would still be required.

And what about the appeals process? Many appeals require there to be a dissenting vote or the appeal can't go forward. In this scenario are unanimous votes appeal able and what happens in the case of a majority but not unanimous decision?

I guess allow appeals to go forward without any dissenting voices.

Also, in cases of a majority but not unanimous decision, the U.S. Supreme Court will be unable to strike down a law as being unconstitutional.
 
To elaborate on my earlier point, the Supreme Court as we think of it, along with most American political institutions, is really a post Civil War thing.

I don't think any country has ever required unanimity for any high court decisions. When countries want to restrain their courts from striking down laws, they use something similar to Canada's "notwithstanding" clause.

So if people in the early nineteenth century wanted to restrict the Supreme Court from striking down federal laws, they would just put in the Constitution that the Court couldn't do that, or such a decision could be overridden by something like a Congressional resolution with a super-majority. If they had the unanimity requirement but were OK with the Supreme Court striking down federal laws, then you would see things like the size of the Court kept at six, and the practice arising of dissenting justices usually just keeping quiet and joining the majority, instead of issuing their own dissenting opinions.
 

CaliGuy

Banned
To elaborate on my earlier point, the Supreme Court as we think of it, along with most American political institutions, is really a post Civil War thing.

What about the Dred Scott decision, though?

I don't think any country has ever required unanimity for any high court decisions. When countries want to restrain their courts from striking down laws, they use something similar to Canada's "notwithstanding" clause.

Can you please elaborate on the Canada part here?

So if people in the early nineteenth century wanted to restrict the Supreme Court from striking down federal laws, they would just put in the Constitution that the Court couldn't do that, or such a decision could be overridden by something like a Congressional resolution with a super-majority. If they had the unanimity requirement but were OK with the Supreme Court striking down federal laws, then you would see things like the size of the Court kept at six, and the practice arising of dissenting justices usually just keeping quiet and joining the majority, instead of issuing their own dissenting opinions.

Fair enough, I suppose; however, what about simply using an "irreconcilable variance" standard for striking down laws as unconstitutional instead of stripping the courts of this power? For the record, this can be put into the U.S. Constitution itself and, in such cases, either a majority vote or a two-thirds vote can be required to strike down a law as being unconstitutional.
 
I think you'd end up with a permanently smaller court.

You'd also have a number of laws and practices that would achieve quasi-constitutional status, and you'd have Congress and the President taking more explicit positions about what is and is not Constitutional.
 
Dredd Scott itself might go away, so that would have butterflies.

However, the Supreme Court strikes down acts of Congress very rarely. That is because Congress actually has quite s few tools in IOTL Constitution from curbing an errant court. It sets the number of justices, defines the Court's jurisdiction, funds the courts, and can impeach and remove justices as well as pass Constitutional amendments. And in fact it has used all these tools when the Supreme Court does something a Congressional majority doesn't like. Even with Dredd Scott the main effect on the Supreme Court was that President Lincoln got to appoint a lot of new justices.
 
Even though Hamilton, and possibly Madison and Jay as well as many other Founders, may have entertained ideas of SCOTUS and the Federal judiciary having Powers of oversight and the right to strike down Congressional and executive laws, actions, etc as unconstitutional, the fact is that they never went as far as adding that provision to the Constitution. If they had agreed for that power, it would have been listed; especially since they did go so far as to encode that the Federal govt doesn't have any Powers not specifically listed. We must assume they did not intend it to be so.

So, what does this all mean? It means Congress, in OTL, has the right to say "SCOTUS doesn't have the right to review this law" and has indeed exercised that right. SCOTUS has always had a fine line to thread because they know that the Constitution does not protect their ability to review laws, and Congress through a simple 50%+1 vote in each house (and presidential signing) can take SCOTUS's review power away, permanently.

Now, in this ATL apparently scotus and the Federal judiciary will have that explicit power to review and strike down. This changes history in a major way. Starting with John Jay the court has this power, and court becomes politicized earlier. Courts will be smaller, when you need unanimity then you don't need odd numbers and smaller is better if you're side has the appointements. Once Jefferson (the first non-federalist president), you expand the court's numbers (with younger new members) and when older ones die off you don't replace. So does Jay find it better to remain chief justice instead of becoming governor of NY with the belief that is a better stepping stone to the presidency? What does a longer Jay court do? Does he fight tooth and nail against Jefferson? I find the unanimous part of this pod less important than the fact that the judiciary actually will have as much talk in the Constitution as the other branches. Basically in OTL all you need is a chief justice and that's all, no other justices or courts are constitutionally required to exist. Each Congress and president will expand and contract the courts as needed.
 
Even though Hamilton, and possibly Madison and Jay as well as many other Founders, may have entertained ideas of SCOTUS and the Federal judiciary having Powers of oversight and the right to strike down Congressional and executive laws, actions, etc as unconstitutional, the fact is that they never went as far as adding that provision to the Constitution. If they had agreed for that power, it would have been listed; especially since they did go so far as to encode that the Federal govt doesn't have any Powers not specifically listed. We must assume they did not intend it to be so.

Yea, Hamilton was a big believer in the idea that the only powers the government had were those explicit in the Constitution.
 
Huh? That's not what I wrote. Dont be a troll

"If they had agreed for that power, it would have been listed."

There's a ton missing from this. What was the role of the state supreme courts in interpreting state Constitutions? In overturning state laws? Was that power assumed?

Maybe it was so obvious that it wasn't necessary.
 

CaliGuy

Banned
Even though Hamilton, and possibly Madison and Jay as well as many other Founders, may have entertained ideas of SCOTUS and the Federal judiciary having Powers of oversight and the right to strike down Congressional and executive laws, actions, etc as unconstitutional, the fact is that they never went as far as adding that provision to the Constitution. If they had agreed for that power, it would have been listed; especially since they did go so far as to encode that the Federal govt doesn't have any Powers not specifically listed. We must assume they did not intend it to be so.

So, what does this all mean? It means Congress, in OTL, has the right to say "SCOTUS doesn't have the right to review this law" and has indeed exercised that right. SCOTUS has always had a fine line to thread because they know that the Constitution does not protect their ability to review laws, and Congress through a simple 50%+1 vote in each house (and presidential signing) can take SCOTUS's review power away, permanently.

Now, in this ATL apparently scotus and the Federal judiciary will have that explicit power to review and strike down. This changes history in a major way. Starting with John Jay the court has this power, and court becomes politicized earlier. Courts will be smaller, when you need unanimity then you don't need odd numbers and smaller is better if you're side has the appointements. Once Jefferson (the first non-federalist president), you expand the court's numbers (with younger new members) and when older ones die off you don't replace. So does Jay find it better to remain chief justice instead of becoming governor of NY with the belief that is a better stepping stone to the presidency? What does a longer Jay court do? Does he fight tooth and nail against Jefferson? I find the unanimous part of this pod less important than the fact that the judiciary actually will have as much talk in the Constitution as the other branches. Basically in OTL all you need is a chief justice and that's all, no other justices or courts are constitutionally required to exist. Each Congress and president will expand and contract the courts as needed.
Hamilton implied/stated that courts have the power to strike down laws as being unconstitutional in Federalist Paper No. 78, though.
 

Skallagrim

Banned
The power was assumed by some as implicit (along the lines of "what else would be the point of having a supreme court anyway?"), while others firmly believed such a power didn't (and shouldn't) exist because it wasn't literally there in the text. We know which side won that debate. Anyway, if the power was explicitly mentioned in the constitution, there is no debate. That changes a lot of considerations, ans @Napoleonrules is right to point that out.

However... I find it extremely unlikely that this particular form would ever be chosen to resolve the matter. Unanimity to strike down laws? No way. Unanimity has never been required for that, and unanimity has often been difficult to reach. Basically everyone would at once understand that such a provision would mean nothing short of "almost everything but the most gravely perverse laws will automatically be constitutional". Regardless of how one wanted laws reviewed... I can think of no Founding Father who wanted that. Checks and balances were put in for a reason. Obviously, opinions differed. Some favoured literal interpretation, others believed in implied powers. But none believed in giving government what would amount to a carte blanche.

If judicial review is going to be explicitly put in the constitution, it's going to be in the form of binding majority decisions (as in OTL), not in the form of unanimity being required.
 
Hamilton implied/stated that courts have the power to strike down laws as being unconstitutional in Federalist Paper No. 78, though.
While some court opinions have included that the Federalist Papers are of use in determining intent, in the end the Federalist Papers are opinions of three individuals who were specifically writing to the people of NY to sway that important nest of anti-federalist ideology into supporting the Constitution. It in no way was meant to be the equivalent of Jewish oral law in interpreting the US Constitution nor did it reflect accurately the debates during the convention or all sides, nor was it meant to be any more than the equivalent of Common Sense in relation to the declaration of independence.
 
"If they had agreed for that power, it would have been listed."

There's a ton missing from this. What was the role of the state supreme courts in interpreting state Constitutions? In overturning state laws? Was that power assumed?

Maybe it was so obvious that it wasn't necessary.
http://www.fjc.gov/history/home.nsf/page/talking_co_tp.html

That's a good source for you to begin to understand that the US Constitution had many proposals, and little agreement. It wasn't left out because it was obvious, it was left out because there was no agreement. As for state courts, they were less than 10 years old and most, but not all had indeed been given judicial review. Explicitly written that way and not implied. Courts having judicial review isn't exactly a British heritage the US had prior to the Revolution; Parliament at that point had no review process from the courts, the courts could create common law but they couldn't overturn parliament outright back then. The colonies had no judicial review of whatever legislatures they had because that was the job of the governor in the name of the King. Ultimately parliament in London was the final court of appeals, as it continued to be for Canada and Australia well into the 20th century, in fact I THINK for some cases as late as 1981.
 
While some court opinions have included that the Federalist Papers are of use in determining intent, in the end the Federalist Papers are opinions of three individuals who were specifically writing to the people of NY to sway that important nest of anti-federalist ideology into supporting the Constitution. It in no way was meant to be the equivalent of Jewish oral law in interpreting the US Constitution nor did it reflect accurately the debates during the convention or all sides, nor was it meant to be any more than the equivalent of Common Sense in relation to the declaration of independence.

So, we know that the Founding Fathers were not influenced by the custom at the time, and we should not take into account the intent of the drafters of the Constitution.
 
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