WI: American Parliament

I'm not sure if it quite works like that. If Adams asserts his authority, he's creating a precedent that the text of Article 1 Clause 4 is interpreted to imply a strong VP with actual responsibilities. That interpretation is entirely consistent with the text of Art 1 c4, and consistent with the other uses of the word "president" in the Constitution. Maybe the Senate doesn't like it, but they don't get to make the choice (unless John Adams, uber-schlemiel, lets them). The Constitutional Convention, the states, and the Electoral College all made the choice of what a Vice President was supposed to do and who the first one was supposed to be. Of course, if they disagree, they'll be free to take their case to the Supreme Court, but I think they'll lose badly. Or they can deal with it and try to get along with Adams.

And like I said, there's nothing except tradition preventing a later VP from assuming this type of role. I know LBJ wanted to. I pointed out Aaron Burr as a likely suspect because the political system was new enough that tradition wouldn't have been much of a factor in 1800.
No one would be taking it to the Supreme Court or even think they could. Judicial review is not in the Constitution and was not established as a precedent until Jefferson's presidency when Madison wss sec of state (hence the name of the of the case Marbury v Madison). I believe that case would be in 1801 or 2
 
No one would be taking it to the Supreme Court or even think they could. Judicial review is not in the Constitution and was not established as a precedent until Jefferson's presidency when Madison wss sec of state (hence the name of the of the case Marbury v Madison). I believe that case would be in 1801 or 2

Haha. That's why it's called alternate history. Marshall established judicial review, but it's not like he invented the idea. As he said, "it is emphatically the province and duty of [the Supreme Court] to say what the law is." It was positively discussed in the Federalist Papers and at the convention itself. Jefferson got a little cantankerous about it, but Jefferson had a lot of silly ideas. The early court was composed entirely of Federalists, with the exception of South Carolina's John Rutledge--DR (drunk, not Democratic-Republican), who was all over the place. I can't imagine them not accepting the power of judicial review.

Plus, it is kind of implied by the text. "The Judicial power shall extend to all cases arising under law and equity under the Constitution." All means all, to my way of thinking.
 
Haha. That's why it's called alternate history. Marshall established judicial review, but it's not like he invented the idea. As he said, "it is emphatically the province and duty of [the Supreme Court] to say what the law is." It was positively discussed in the Federalist Papers and at the convention itself. Jefferson got a little cantankerous about it, but Jefferson had a lot of silly ideas. The early court was composed entirely of Federalists, with the exception of South Carolina's John Rutledge--DR (drunk, not Democratic-Republican), who was all over the place. I can't imagine them not accepting the power of judicial review.

Plus, it is kind of implied by the text. "The Judicial power shall extend to all cases arising under law and equity under the Constitution." All means all, to my way of thinking.
Love the DR part btw. But arising under law and equity refers to appeals regarding lower court rulings. Even Marbury v Madison said SCOTUS has no right to original jurisdiction, the whole decision had nothing to with the actual case, it was SCOTUS taking away a right Congress gave SCOTUS (original jurisdiction) by saying that law was unconstitutional thereby SCOTUS in this case had no right to hear it. SCOTUS gave themselves judicial review by using judicial review to say they had no Constitutional right to be hearing that very case... the ruling itself should never have come about because the case itself should never been heard. Worst logic ever for a SCOTUS decision.
 
Love the DR part btw. But arising under law and equity refers to appeals regarding lower court rulings.

Before I say this next part, I just want to advise: I am not trying to be THAT GUY. I hate THAT GUY. He's a douche. The only reason I'm bringing up what I'm about to bring up at all to to say that I'm not just pulling what I'm about to say it out of thin air. Got it? Good.

--Georgia Law alum here. According to generally accepted principles of statutory construction, I think an interpreter would (more likely) read it my way. Esp b/c it also says, "under the Constitution." I think that part very plausibly justifies Judicial Review--we try to give meaning to every word in the statute, and therefore assume that there are no redundancies. You could leave out the "under the Constitution" part and express a meaning consistent with your interpretation. Therefore, "under the Constitution" must mean something. I think it means reviewing Constitutional questions at every level--the co-equal branches of government and all that jazz.

That's not to say they couldn't read it your way, but it would be a verrry narrow reading of Art 1.4, especially considering that, at the time the Constitution was drafted and ratified, the notion of judicial review by SCOTUS seemed to be fairly uncontroversial. I think they read it broadly because they're Federalists, Judicial Review is consistent with what a Supreme Court would do, and the text easily allows it.

Nonetheless, I think that the political situation and party alignment make a pro-Judicial Review more likely than the plain text alone.

Even Marbury v Madison said SCOTUS has no right to original jurisdiction, the whole decision had nothing to with the actual case, it was SCOTUS taking away a right Congress gave SCOTUS (original jurisdiction) by saying that law was unconstitutional thereby SCOTUS in this case had no right to hear it. SCOTUS gave themselves judicial review by using judicial review to say they had no Constitutional right to be hearing that very case... the ruling itself should never have come about because the case itself should never been heard. Worst logic ever for a SCOTUS decision.

Yeah, it's a weird case. I think Marshall was being more politically savvy than we generally consider him being today. He is famously called "the Last Federalist," and I think he realized the mood of the country was turning to the Dem-Reps and against Federalist ideas. Therefore, I suspect he and his buddies were just looking for any case where they could establish once and for all the power of Judicial Review. The court was unanimous, after all, and a lot of the Justices had been on the Court since the 1790s. They would have remembered how uncontroversial judicial review had been the decade before. I doubt they would let a power of that magnitude slip out of their hands.

Why, that would be like the President of the Senate letting the institution he's supposed to be running turn him into a referee. :)
 
Before I say this next part, I just want to advise: I am not trying to be THAT GUY. I hate THAT GUY. He's a douche. The only reason I'm bringing up what I'm about to bring up at all to to say that I'm not just pulling what I'm about to say it out of thin air. Got it? Good.

--Georgia Law alum here. According to generally accepted principles of statutory construction, I think an interpreter would (more likely) read it my way. Esp b/c it also says, "under the Constitution." I think that part very plausibly justifies Judicial Review--we try to give meaning to every word in the statute, and therefore assume that there are no redundancies. You could leave out the "under the Constitution" part and express a meaning consistent with your interpretation. Therefore, "under the Constitution" must mean something. I think it means reviewing Constitutional questions at every level--the co-equal branches of government and all that jazz.

That's not to say they couldn't read it your way, but it would be a verrry narrow reading of Art 1.4, especially considering that, at the time the Constitution was drafted and ratified, the notion of judicial review by SCOTUS seemed to be fairly uncontroversial. I think they read it broadly because they're Federalists, Judicial Review is consistent with what a Supreme Court would do, and the text easily allows it.

Nonetheless, I think that the political situation and party alignment make a pro-Judicial Review more likely than the plain text alone.



Yeah, it's a weird case. I think Marshall was being more politically savvy than we generally consider him being today. He is famously called "the Last Federalist," and I think he realized the mood of the country was turning to the Dem-Reps and against Federalist ideas. Therefore, I suspect he and his buddies were just looking for any case where they could establish once and for all the power of Judicial Review. The court was unanimous, after all, and a lot of the Justices had been on the Court since the 1790s. They would have remembered how uncontroversial judicial review had been the decade before. I doubt they would let a power of that magnitude slip out of their hands.

Why, that would be like the President of the Senate letting the institution he's supposed to be running turn him into a referee. :)
SUNY Albany for political science degree and then Albany Law School drop out, but then Mizzou for a masters in history on my side over here, so you have me on law degree but I can still hold my on.

At no point does the Constitution ever say the branches are co-equal. There was to be a balance but it didnt mean they were co-equal. In Washington's view the way Constitutionality was to be determined was the President was to be honorable and veto if he thought Congress was overreaching and unconstitutional. Then Congress had the right to override if it disagreed. In Washington's view it ended there. Separation of powers meant just that, separate, but it didnt mean SCOTUS could interfere. I believe Jefferson agreed, however Jefferson also started the whole state's rights crap we still live with today, by cowardly writing state nullification bills behind the President's back. Remember- when the Founder's wrote the Constitution this was a new idea, while Europe and especially England/UK had moved strongly to the Rule of Law applying to Kings, the Rule of Law applying to Parliament didnt exist. Literally the UK parliament could, in the words of a poli sci professor of mine- declare all streams must flow up hill. The UK unwritten constitution at this point literally allowed Parliment to rewrite the rules as they went along and nothing my definition they did could be unconstitutional. We read the Constitution today with anachronistic eyes, and also, as you assumed in your post that they had a meaning for why they worded each sentence. I assure you they didnt. Compromises, and the whims of the final edits, makes it clear that if SCOTUS was made up of only members of that convention, you'd rarely get a majority opinion on what any article meant.
 
SUNY Albany for political science degree and then Albany Law School drop out, but then Mizzou for a masters in history on my side over here, so you have me on law degree but I can still hold my on.

I knew something was up with you.:)

I snipped your analysis, but not because it sucks. It's good evidence for your point, but we could just go on about this shit all day. Lawyers and history buffs? GTFO.

So let's split this difference here and go for the real wild outcome. Adams sues the Senate because they're interfering with the performance of his Constitutional duties. The Senate makes two and a half points--this is a political question, and therefore non-justiciable (1), and it isn't subject to judicial review because the SCOTUS isn't entitled to review actions of Constitutional significance(2), and even if they could, they would only be able to review a controversy which arose from a duly passed law(2a).

SCOTUS rejects all two and a half. The ruling on 1 is moderate in scope, 2 is expansive, and 2a is very narrow. (Basically, as long as you don't try to pretend Article 1 doesn't exist and hold the rest of government hostage, 2a should never again be an issue.)

I'm going to follow your lead here, and say that much of the Senate and a sizable chunk of the political elite go apeshit. For starters, Thomas Jefferson gets a case of the vapors and quits the cabinet, Henry Knox reaches for another chicken wing, Alexander Hamilton makes a snarky comment as TJ walks out the door, and Edmund Randolph (who came up with the idea for Article III) mumbles "fckin right!" under his breath. Just for shits and giggles, TJ pulls a Jerry McGuire on his way out. Samuel Osgood, the first Postmaster General and a Federalist, Listens patiently as TJ stammers through an impromptu speech. Osgood is amused, but he's also good buddies with Thomas Jefferson ( or as Osgood calls him, The Midnight Redbone Express). So he picks up his littler one-flower flower vase, his coffee mugs, and his favorite cardigan, and follows TJ out the door. He waves goodbye to the rest of the cabinet as he walks out the door.

He reminds Ham of dog on his way to the pound.

Effects?
 
I knew something was up with you.:)

I snipped your analysis, but not because it sucks. It's good evidence for your point, but we could just go on about this shit all day. Lawyers and history buffs? GTFO.

So let's split this difference here and go for the real wild outcome. Adams sues the Senate because they're interfering with the performance of his Constitutional duties. The Senate makes two and a half points--this is a political question, and therefore non-justiciable (1), and it isn't subject to judicial review because the SCOTUS isn't entitled to review actions of Constitutional significance(2), and even if they could, they would only be able to review a controversy which arose from a duly passed law(2a).

SCOTUS rejects all two and a half. The ruling on 1 is moderate in scope, 2 is expansive, and 2a is very narrow. (Basically, as long as you don't try to pretend Article 1 doesn't exist and hold the rest of government hostage, 2a should never again be an issue.)

I'm going to follow your lead here, and say that much of the Senate and a sizable chunk of the political elite go apeshit. For starters, Thomas Jefferson gets a case of the vapors and quits the cabinet, Henry Knox reaches for another chicken wing, Alexander Hamilton makes a snarky comment as TJ walks out the door, and Edmund Randolph (who came up with the idea for Article III) mumbles "fckin right!" under his breath. Just for shits and giggles, TJ pulls a Jerry McGuire on his way out. Samuel Osgood, the first Postmaster General and a Federalist, Listens patiently as TJ stammers through an impromptu speech. Osgood is amused, but he's also good buddies with Thomas Jefferson ( or as Osgood calls him, The Midnight Redbone Express). So he picks up his littler one-flower flower vase, his coffee mugs, and his favorite cardigan, and follows TJ out the door. He waves goodbye to the rest of the cabinet as he walks out the door.

He reminds Ham of dog on his way to the pound.

Effects?
Now I would pay good money for a time machine ride if I was promised that what your wrote would literally happen.

Marbury v Madison was during Jefferson's presidency, so we are talking about judicial review coming a decade earlier, and under a John Jay led court, a man who wants nothing more than to be President, so much he quits as Chief Justice in order to be governor of NY because then he can run for Pres. These all are things to consider.

Anti-Federalists might merge and morph with Jefferson as this will be before Democratic-Republicans really emeged. Jefferson could lead a real strong state's rights party with his nullification beliefs. A fun, but not really realistic way to lead the butterflies, is to say Jefferson ends up meeting up with Aaron Burr and General Wilkinson and together they are successful in breaking the West away from the US first as a Spanish protectorate and then stab them in the back and take the forts along the Mississippi (but fail to take New Orleans because Wilkinson sucks as a general, which leaves them in a bind). Got off on a historical tangent instead of how the Federal govt evolved but I find doing that a bit more "sexy" in an ATL
 
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