Talk:Judicial review in the United States

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Standard of Review Section Out of Date

The section uses "famous" "footnote four" in a 1938 case as evidence that the "presumption of constitutionality weakened somewhat during the twentieth century." The presumption of constitutionality broadened dramatically during the second half of the 20th century. In POPS v Gardner, 998 F.2d 764 (9th Cir. 24. 1993), for example, family law was reclassfied from civil law to social policy, allowing arbitrary political manipulation to allow states to maximize the amount of federal funding they recieve from the federal child support enforcement program. Williamson v. Lee Optical Co. (1955) is an early example of the use of rational basis (strongest presumption of constitutionality). The cited case (Carolene Products) - aside from its famous footnote four - was one of the New Deal decisions that used presumptive constitutionality. From the 1960s onward, what is described in footnote four as a mechanism for increased scrutiny (in particular suspect classes) were used to promote "reverse discrimination" - accepting legislation that violated the constitutional rights of classes seen as advantaged. I don't believe it should matter in this analysis what your individual feelings are regarding reverse discrimination (i.e. whether it's acceptable or not). The issue here is whether there was increased use of the presumption of constitutionality. As it became fashionable for Congress to write laws favoring the short list of members of "suspect classes" and courts allowed them, presumptive constitutionality certainly increased.

Additional consequences

Along with decreased scrutiny, came New Federalism (a term that is used to label legal / social reform movement in academics that uses federal policy reform as its primary mechanism. This movement has a very strong international component.). POPS provides an exceptionally clear example. It is not merely that the new social policy classification allowed the state to side-step the constitutional rights of non-custodial parents (ostensibly to provide advantages for women and children), but that the trigger was a dramatically increased role for the federal government in family law - an area that constitutionally belongs to states. Congress increased its involvement through welfare reform and used funding as a control mechanism. Federal funding however, was not restricted to effect only welfare cases. POPS was a group composed of non-custodial parents whose families had never been on welfare and were not on the verge of becoming eligible. It was in response to this group that the issue (not merely welfare system entitlements) had been classified as social policy - purely private family law issue transformed into the federal welfare system by applying the lowest level of constitutional scrutiny. With this background, homosexuals were later given preference in Mass. (state court) -- allowing marriage to be treated as merely a construction of arbitrary political policy. (Prior to POPS, marriage and family issues had been given the highest level of scrutiny to protect the institution.)

US reforms were in turn triggered by UN Conventions. The presumption of constitutionality has become so arbitrary as to allow conformance with conventions, no matter that they offend the Bill of Rights, and no matter that no treaty has been signed. New Federalism is intact, and the slippery slope has moved to the issue of New Internationalism.

The construction of the three levels of review has in effect, rewritten the Constitution. Interpretation has become a relatively arbitrary game of preferences. The Bill of Rights, separation of powers, limited federal power are all a thing of the past. This has been a huge transformation triggered by the presumption of constitutionality. The power of courts to defend rights against government intrusion has dramatically decreased. The powers of the federal government have increased without checks and balances that courts should provide. We have entered the 21st century as a much different country than it was in the middle of the 20th.

Rogerfgay (talk) 10:11, 4 February 2008 (UTC)[reply]

Help to integrate the following material from the "summary style"

We're no longer using "summary style" at the

Judicial Review page. I deleted the summary style content there, but I'm preserving it HERE

in case it contains any good formulations that we want to insert into this article.

May 11, 2011 revision

I thought this discussion needed reorganization and expansion. I've reorganized it, added some new sections, added quite a bit of new material, and added a number of citations. In particular, I've added material about the provisions of Articles III and VI, the comments by the framers in the Constitutional Convention and the ratifying conventions, the relevant court cases both before ratification of the Constitution and between ratification and Marbury, and judicial review after Marbury. I've expanded the discussion of Marbury. I've left mostly intact the sections about criticism of judicial review, the standard of review, laws limiting judicial review, and administrative review, though I've had to move a few things around. Elmo McGee (talk) 23:10, 11 May 2011 (UTC)[reply]

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Alternatives

If the legislature must be stopped from passing legislation contrary to the constitution (e.g. establishing a religion) how do the opponents of judicial review say this should be done? That's why I came here and I'm no wiser. — Preceding unsigned comment added by 101.182.33.66 (talk) 10:53, 19 June 2017 (UTC)[reply]

Cheers.—InternetArchiveBot (Report bug) 21:36, 28 April 2017 (UTC)[reply]

I agree. I'm from Australia, the High Court has said that it is the final arbiter of the constitutionality of legislation, so it is. What are the alternatives? — Preceding unsigned comment added by 101.182.74.7 (talk) 07:32, 22 March 2019 (UTC)[reply]