It was the original intent of the Framers that the courts – and ultimately the Supreme Court – would determine what the Constitution means, as authorized by the doctrine of judicial review, and Articles III and VI of the Constitution.
The thread premise fails for the same reason other such 'arguments' from the right fail: the incorrect conservative notion that the Supreme Court in Marbury 'misappropriated' the authority to review Federal, state, and local measures and invalidate those measures repugnant to the Constitution and its case law.
In fact, Colonial courts for well over one hundred years prior to the advent of the Foundation Era were subjecting statutes to judicial review:
"By 1803, as Chief Justice Marshall acknowledged in Marbury, “long and well established” principles answered “the question, whether an act, repugnant to the constitution, can become the law of the land.” Marshall concluded that “a law repugnant to the constitution is void; and that courts . . . are bound by that instrument.” As such, contrary to the traditional account of Marbury, Marshall’s decision did not conjure judicial review out of thin air, but rather affirmed the well-established and long-practiced idea of limited legislative authority in the new context of the federal republic of the United States. In doing so, Marshall recommitted American constitutional law to a practice over four centuries old."
Why We Have Judicial Review
The thread premise fails for the same reason other such 'arguments' from the right fail: the incorrect conservative notion that the Supreme Court in Marbury 'misappropriated' the authority to review Federal, state, and local measures and invalidate those measures repugnant to the Constitution and its case law.
In fact, Colonial courts for well over one hundred years prior to the advent of the Foundation Era were subjecting statutes to judicial review:
"By 1803, as Chief Justice Marshall acknowledged in Marbury, “long and well established” principles answered “the question, whether an act, repugnant to the constitution, can become the law of the land.” Marshall concluded that “a law repugnant to the constitution is void; and that courts . . . are bound by that instrument.” As such, contrary to the traditional account of Marbury, Marshall’s decision did not conjure judicial review out of thin air, but rather affirmed the well-established and long-practiced idea of limited legislative authority in the new context of the federal republic of the United States. In doing so, Marshall recommitted American constitutional law to a practice over four centuries old."
Why We Have Judicial Review
