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

[RetiredGySgt]

Ultimately the STATES have authority over the constitution.

They can, in theory, call for a constitutional convention and rewrite it.

Not likely to happen though as it takes 2/3's of the States.

 

[Steerpike]

And it did NOT have to be decided then, Jefferson let it stand because he won. A better politician could have found a way to accept the ruling and defeat the power grab.

That's right. That was part of the smarts on the part of Marshall. He knew (or at least suspected or hoped) Jefferson wouldn't do much if Jefferson actually won the case. Turned out he was right.

 

[PeterS]

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).

So who should decide the constitutionality of the constitution? Suppose we get a bug up our asses and want to ban marriage between blue eyed people so the legislation passes the law and the president signs the law. Is that it? Is the law constitutional? Who is to decide: the majority who wanted to law passed; the elected legslature and president who want to stay in power?

To me it would seem that without an independent judiciary being the final arbitrator of the constitution the potential for tyranny is unlimited.

 

[Procrustes Stretched]

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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).

what is to prevent the others from doing what? When the SCOTUS used the principal of judicial review the Legislature and the Executive went along with it, no? Did they object and refuse to recognize this power? Did the SCOTUS in your view give itself powers? How can that be?

are people here talking at cross purposes? The idea that the SCOTUS has the power of judicial review is what you are talking about? I gave my opinions:

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.

 

[Steerpike]

So who should decide the constitutionality of the constitution? Suppose we get a bug up our asses and want to ban marriage between blue eyed people so the legislation passes the law and the president signs the law. Is that it? Is the law constitutional? Who is to decide: the majority who wanted to law passed; the elected legslature and president who want to stay in power?

To me it would seem that without an independent judiciary being the final arbitrator of the constitution the potential for tyranny is unlimited.

That's a good question, and one of the arguments Marshall presented.

The opposing view held that since each branch of government was 'equal' then each had the equal authority to decide for itself what was Constitutional and what wasn't.

The Executive, for example, has from time to time ignored the Supreme Court (Lincoln being a case in point).

 

[RetiredGySgt]

So who should decide the constitutionality of the constitution? Suppose we get a bug up our asses and want to ban marriage between blue eyed people so the legislation passes the law and the president signs the law. Is that it? Is the law constitutional? Who is to decide: the majority who wanted to law passed; the elected legslature and president who want to stay in power?

To me it would seem that without an independent judiciary being the final arbitrator of the constitution the potential for tyranny is unlimited.

The Constitution is already shredded. By the Legislature, The Executive and the Courts. We have so many Unconstitutional things in this Country as to boggle the mind.

 

[Procrustes Stretched]

Whether or not the Supreme Court of the U.S. had to authority to make final determinations of Constitutionality of the acts of the other branches had been debated since the founding of the country (before that, even, if you consider debates about whether they should have the power).

There were plenty of arguments floating around on both sides of the issue for years, and Marshall used some of these in Marbury v. Madison. But the issue of whether or not the Supreme Court actually had this power was not decided until Marbury.

true,. and then it was settled. So what is the problem? Do you disagree with centuries of precedent and if so why? If not what is It all about?

 

[Steerpike]

true,. and then it was settled. So what is the problem? Do you disagree with centuries of precedent and if so why? If not what is It all about?

I posed it as an issue for discussion. For fun. Because this is a discussion forum. How hard is that to grasp? If you don't want to discuss it, there are plenty of other threads on the site. Simmer down.

 

[editec]

Not likely to happen though as it takes 2/3's of the States.

True.

But that does respond to the question:

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

The Supreme Court does NOT have final say over what is constitutional.

The states do.

 

[Annie]

Who is the "check" on the legislature and who is the "check" on the Supreme court?

Bingo. If legislation is deemed 'unconstitutional' the legislators may rewrite it or amend the Constitution. Thus the Court checks and the Legislature can counter check. Both are messy by design.

 

[Procrustes Stretched]

I posed it as an issue for discussion. For fun. Because this is a discussion forum. How hard is that to grasp? If you don't want to discuss it, there are plenty of other threads on the site. Simmer down.

oooh an insult? It's okay, I have a thick skin.

are you against judicial review and why?

 

[jillian]

True.

But that does respond to the question:



The Supreme Court does NOT have final say over what is constitutional.

The states do.

That would be incorrect. The Supreme Court has the final say over what is Constitutional. States have the right to grant rights in their own State Constitution and laws that EXCEED the Federal Constitution and rulings of the Supreme Court. They cannot give fewer.

 

[Steerpike]

The Supreme Court does NOT have final say over what is constitutional.

The states do.

This isn't true. The Supreme Court has the final say over it. The States, if they don't like it, can CHANGE what is Constitutional. But at any given time, the ultimate power to decide Constitutionality resides with the Supreme Court.

 

[Procrustes Stretched]

Bingo. If legislation is deemed 'unconstitutional' the legislators may rewrite it or amend the Constitution. Thus the Court checks and the Legislature can counter check. Both are messy by design.

democracy is messy. I laugh at those that complain about democracy. messy is cool.

 

[Father Time]

Well someone needs to have the ultimate say and if not the courts who?
If we leave it to the Congress and the executive branch then really controversial decisions like Roe v. Wade would be overturned and re-instated in a cycle depending on which party was in power.

The supreme court justices are appointed not elected meaning they don't have to worry about making unpopular decisions that cost them votes or something like that. Although there still isn't 0 credibility. Congress can throw a judge out through some practice although I'm not sure they've ever done so.

 

[Annie]

Well someone needs to have the ultimate say and if not the courts who?
If we leave it to the Congress and the executive branch then really controversial decisions like Roe v. Wade would be overturned and re-instated in a cycle depending on which party was in power.

The supreme court justices are appointed not elected meaning they don't have to worry about making unpopular decisions that cost them votes or something like that. Although there still isn't 0 credibility. Congress can throw a judge out through some practice although I'm not sure they've ever done so.

Roe v Wade is a bit different, in that the court actually ruled on a 'right' that isn't in the constitution, that is making law. That indeed is different. The only option to that would be a constitutional amendment, that would never pass.

 

[Father Time]

Roe v Wade is a bit different, in that the court actually ruled on a 'right' that isn't in the constitution, that is making law. That indeed is different. The only option to that would be a constitutional amendment, that would never pass.

They extended the right to privacy under the very vague 9th amendment
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. "

Basically we have more rights than what is granted in the the other amendments, but it doesn't name those rights.

I don't know if privacy was precedent by that time or if they decided precedent then and there, but it did have some constitutional backing.

 

[PeterS]

That's a good question, and one of the arguments Marshall presented.

The opposing view held that since each branch of government was 'equal' then each had the equal authority to decide for itself what was Constitutional and what wasn't.

The Executive, for example, has from time to time ignored the Supreme Court (Lincoln being a case in point).

But if each has equal authority then no one has authority and it was the founders intent to create chaos. I do not think that the case and I can see no other means to check tyranny of the majority other than an independent judiciary who allegiance is to the constitution.

If there is another means to keep a tyrannical majority in check then let me know.

 

[Care4all]

But if each has equal authority then no one has authority and it was the founders intent to create chaos. I do not think that the case and I can see no other means to check tyranny of the majority other than an independent judiciary who allegiance is to the constitution.

If there is another means to keep a tyrannical majority in check then let me know.

Then the Senate needs to do a better job rejecting some of those nominated or filibustering them.....not giving their consent because i believe our supreme court is strictly partisan in their so called interpretations alot of the times and NOT INDEPENDENT as was intended.

 

[Annie]

They extended the right to privacy under the very vague 9th amendment
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. "

Basically we have more rights than what is granted in the the other amendments, but it doesn't name those rights.

I don't know if privacy was precedent by that time or if they decided precedent then and there, but it did have some constitutional backing.

But they dismissed the X, taking away the right of the States and 'the people.'
I do not wish to argue the abortion matter, rather the ability of the SCOTUS to determine Constitutionality, an important power indeed.