- Apr 23, 2017
- Reaction score
- New Mexico
I disagree that the power is illegitimate. I just quoted Marbury where Marshall simply states that they have to consider the constitutionality of any law in the cases before them. If the law is not constitutional then it can't be enforced in the case before them. Marshall's intent was legitimate. Subsequent courts have quit considering the Constitution at all in many of their decisions, choosing what they believe
They technically do not make law and they technically do not throw out unconstitutional laws. They rule in regards to the case before them. Their words set precedent in that any judge or lawyer working a similar case would assume the same outcome so they rule based on that precedent but the Supreme Court order only ever applies to the single case before them... Until the Court got out of control and started making law and ordering generally rather than the case they're considering.
Precedent has always been the real basis for law, not legislation, and it is always for the courts to decide because the source of legal authority comes from inherent rights of individuals, and NOT from government or legislators.
And the inherent rights of individuals not only are infinite and impossible to write down, but they vary as they impact and conflict with each other.
So legislators in effect can only make suggestions for the courts to either agree with or strike down.
Legislation can never be considered law.
Law has to come first and be an abstract principle the legislation supports, the justification and rational for the legislation.