There’s not though. Illegal is a poor choice of words because the only one that can determine that is the Supreme Court. I can see why they used defying legal limits.
the only one that can determine that is the Supreme Court
On what grounds?
The supreme court’s authority is a meme with no basis in law. When push comes to shove, it will literally mean nothing. Politicians only use it as a cudgel to win arguments.
Any of the three branches of government can determine something is illegal. What matters is their ability to put that determination into practice. Like that Seinfeld skit: anyone can take a reservation; what matters is the holding.
It’s also valid for the general population to determine something is illegal, by observing a common understanding of the law and the meanings of words. Something can be obviously illegal in theory and yet the government does nothing about it.
The point is, legality is not a physical fact. It’s not etched into the fabric of reality. It is only a form in which political will is enacted, one which society accepts in what one might call the “civil” epochs of history. But in times of transition, which I think probably includes the current decade, the subordination of the law under direct political agency is laid bare. It is pointless to clutch on to obsolete concepts of legality. We have to constantly adapt our theory as society changes.
The constitution doesn’t say only the Supreme Court can decide something is illegal. The supremacy clause does give the SC the power to decide if a law violates the constitution, and if so, the constitution takes precedence after review.
The law, while it is enacted, defines what is legal as a tautology. If judicial review overturns a law, then such actions are obviously not illegal anymore because the law would not be in effect. But you aren’t going to avoid prison by arguing that the statutory basis of your charges has never been reviewed and is therefore in a quantum superposition of legality.
Which brings me to my earlier point: the constitution empowers the Supreme Court to judicial review for settling matters of constitutionality. Nowhere does it say that only the Supreme Court can make legal determinations. That’s more or less how Roe was overturned recently: the SC argued that an abortion ban is not unconstitutional, therefore the SC cannot nullify abortion ban laws. This means that lower courts can determine abortion to be illegal, according to their local laws.
The modern idea of the Supreme Court’s authority, which I referred to as a meme, comes more from Marbury v Madison than from the constitution.
There’s not though. Illegal is a poor choice of words because the only one that can determine that is the Supreme Court. I can see why they used defying legal limits.
On what grounds?
The supreme court’s authority is a meme with no basis in law. When push comes to shove, it will literally mean nothing. Politicians only use it as a cudgel to win arguments.
Any of the three branches of government can determine something is illegal. What matters is their ability to put that determination into practice. Like that Seinfeld skit: anyone can take a reservation; what matters is the holding.
It’s also valid for the general population to determine something is illegal, by observing a common understanding of the law and the meanings of words. Something can be obviously illegal in theory and yet the government does nothing about it.
The point is, legality is not a physical fact. It’s not etched into the fabric of reality. It is only a form in which political will is enacted, one which society accepts in what one might call the “civil” epochs of history. But in times of transition, which I think probably includes the current decade, the subordination of the law under direct political agency is laid bare. It is pointless to clutch on to obsolete concepts of legality. We have to constantly adapt our theory as society changes.
See the US Constitution…
The constitution doesn’t say only the Supreme Court can decide something is illegal. The supremacy clause does give the SC the power to decide if a law violates the constitution, and if so, the constitution takes precedence after review.
The law, while it is enacted, defines what is legal as a tautology. If judicial review overturns a law, then such actions are obviously not illegal anymore because the law would not be in effect. But you aren’t going to avoid prison by arguing that the statutory basis of your charges has never been reviewed and is therefore in a quantum superposition of legality.
Which brings me to my earlier point: the constitution empowers the Supreme Court to judicial review for settling matters of constitutionality. Nowhere does it say that only the Supreme Court can make legal determinations. That’s more or less how Roe was overturned recently: the SC argued that an abortion ban is not unconstitutional, therefore the SC cannot nullify abortion ban laws. This means that lower courts can determine abortion to be illegal, according to their local laws.
The modern idea of the Supreme Court’s authority, which I referred to as a meme, comes more from Marbury v Madison than from the constitution.