The law and its implementing procedures, regardless of whether state or federal, are a product of the will of the majority. What are you looking to your brave judge to do about that?
Oh, that's easy. If the law is unconstitutional, the judge needs to strike it down. I thought it was clear that this is what we were talking about.
We were talking about a proposed federal law giving federal courts jurisdiction to review certain state cases, and the issue, I think, is whether this is something which is consistent with the principles of federalism, or contrary to the principles of federalism.
My point is that, while I believe in federalism, it goes without saying that the Constitution is the supreme law of the land, and when a state law or state case conflicts with the Constitution then the Constitution prevails. But how to get from state court to federal court for judicial review?
In a criminal case, you'd use habeas corpus, but you can't use habeas corpus in a civil case. Civil cases can't jump from state to federal court unless there is a basis for federal jurisdiction. Maybe there already exists a basis for federal jurisdiction but I can't think of it. |
