Should the Supreme Court have the final say over what is Constitutional?

Discussion in 'Law and Justice System' started by Steerpike, Dec 28, 2008.

  1. Steerpike
    Offline

    Steerpike VIP Member

    Joined:
    Dec 17, 2007
    Messages:
    1,847
    Thanks Received:
    182
    Trophy Points:
    83
    Ratings:
    +182
    Most people think that the country was founded with the system we now have, where the Supreme Court had the ultimate authority to decide what was Constitutional and what wasn't. That is not the case. That power was taken for the Court in a rather ingenious move by Justice Marshall in the Marbury v. Madison case, which was a political decision as much as anything.

    It could be argued that this is akin to allowing Bush and Cheney to decide the scope of power of the Executive branch. You basically have the branch of government in question (the Supreme Court in Marbury) deciding whether or not it has the power that was in dispute. No great surprise how it comes out.

    Here are some quotes by Madison and Jefferson on the subject. These predate the Court's power grab:

    "As the courts are generally the last in making the decision [on laws], it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper." James Madison, Oct. 15, 1788.

    "To consider the [Supreme Court] judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. They have, with others, the same passions for party, for power and . . . privilege. Their power is the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal." Thomas Jefferson, Letter to William Jarvis, Sept. 28, 1820 (emphasis added).

    "The opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but the legislature and executive also in their spheres, would make the judiciary a despotic branch.." Thomas Jefferson, Letter to Abigail Adams, Sept. 11, 1804.

    "The germ of dissolution of our federal government is in . . . the federal judiciary; an irresponsible body (for impeachment is merely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States." Thomas Jefferson, Letter to Mr. Hammond, 1821.


    So I thought I'd post this as an academic question. What do the rest of you think about this, both from practical points of view and in theory? And if one branch of government can just decide it has to power to do something, what is to prevent the others (and in fact the answer to that is 'nothing,' which has been demonstrated in our history).
     
  2. alan1
    Offline

    alan1 USMB Mod Staff Member Supporting Member

    Joined:
    Dec 13, 2008
    Messages:
    18,845
    Thanks Received:
    3,577
    Trophy Points:
    245
    Location:
    Shoveling the ashes
    Ratings:
    +3,769
  3. RetiredGySgt
    Offline

    RetiredGySgt Platinum Member

    Joined:
    May 6, 2007
    Messages:
    39,579
    Thanks Received:
    5,905
    Trophy Points:
    1,140
    Location:
    North Carolina
    Ratings:
    +9,000
    The Courts have no such power , however Jefferson has no leg to stand on, as HE created the Precedent.
     
    • Thank You! Thank You! x 1
  4. Dante
    Offline

    Dante On leave Supporting Member

    Joined:
    Dec 1, 2008
    Messages:
    52,463
    Thanks Received:
    3,324
    Trophy Points:
    1,825
    Location:
    On leave
    Ratings:
    +6,054
    Spike, it is a bit more complicated than you've laid out. Marbury and Jefferson's actions and opinions and what was understood by the colonials needs to be looked at in a full context of the times, not from an ideological standpoint in the 20th or 21st century.

    my opinion: as a practical matter it is the best system we could have. Judicial rules is a check on the power of the mob rule mentality that would destroy our nation or any other. of course the courts can be checked...it's called a Constitutional Convention with amendments. So your question seems based on an ignorant reading or a bogus argument: strawman.

    in theory? read the linked wikipedia text. the theory was around way before Marbury and it was understood by many of the colonials and it was enshrined in many a state constitution.

    :oops:
     
    Last edited: Dec 28, 2008
  5. Steerpike
    Offline

    Steerpike VIP Member

    Joined:
    Dec 17, 2007
    Messages:
    1,847
    Thanks Received:
    182
    Trophy Points:
    83
    Ratings:
    +182
    Well, we can argue about whether the Courts SHOULD have the power, but they clearly have it and have had it for some time.
     
    • Thank You! Thank You! x 1
  6. Dante
    Offline

    Dante On leave Supporting Member

    Joined:
    Dec 1, 2008
    Messages:
    52,463
    Thanks Received:
    3,324
    Trophy Points:
    1,825
    Location:
    On leave
    Ratings:
    +6,054
    So you are saying judicial review is not the same thing as "the ultimate authority to decide what was Constitutional and what wasn't" ?
     
  7. Dante
    Offline

    Dante On leave Supporting Member

    Joined:
    Dec 1, 2008
    Messages:
    52,463
    Thanks Received:
    3,324
    Trophy Points:
    1,825
    Location:
    On leave
    Ratings:
    +6,054
    please be specific and recite this power so there is an understanding of exactly what everyone is talking about?
     
    Last edited: Dec 28, 2008
  8. Care4all
    Offline

    Care4all Warrior Princess Supporting Member

    Joined:
    Mar 24, 2007
    Messages:
    32,797
    Thanks Received:
    6,625
    Trophy Points:
    1,170
    Location:
    Maine
    Ratings:
    +11,112
    Who is the "check" on the legislature and who is the "check" on the Supreme court?
     
  9. Dante
    Offline

    Dante On leave Supporting Member

    Joined:
    Dec 1, 2008
    Messages:
    52,463
    Thanks Received:
    3,324
    Trophy Points:
    1,825
    Location:
    On leave
    Ratings:
    +6,054
    here you go:
     
  10. Luissa
    Offline

    Luissa Annoying Customer Supporting Member

    Joined:
    Sep 7, 2008
    Messages:
    43,190
    Thanks Received:
    5,593
    Trophy Points:
    1,785
    Location:
    TARDIS
    Ratings:
    +5,664
    actually it was John Marshall who set the precedent!Jefferson was just President at the time!
     

Share This Page

Search tags for this page
should any one court be given the final say
,
should any one court have the final say
,

should anyone court be given the final say

,
should the supreme court have the final say
,
supreme court gave itself the final say