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

[Steerpike]

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).

 

[alan1]

Kind of like this SCOTUS ruling?

Supreme Court Backs Right to Bear Arms | Scholastic.com

The really scary part is that 4 of the 5 judges ruled no, which is like saying the Constitution itself is unconstitutional.

 

[RetiredGySgt]

The Courts have no such power , however Jefferson has no leg to stand on, as HE created the Precedent.

 

[Procrustes Stretched]

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.

Status of the judicial power before Marbury

The power of judicial review was created in Marbury though the general idea has ancient roots. The idea that courts could nullify statutes originated in Chief Justice Edward Coke's 1610 opinion in Dr. Bonham’s Case, 8 Co. Rep. 107a. That decision arose under a statute of Parliament enabling the London College of Physicians to levy fines against anyone who violated their rules. The College accused a doctor of practicing without a license and fined him accordingly. Coke found that their statutory powers violated "common right or reason" because "no person should be a judge in his own case."[7]
Sir Edward Coke

The U.S. Supreme Court has clarified that Bonham's Case did not set a precedent in the United States to make common law supreme over statutory law as may have been the case in England:

[N]otwithstanding what was attributed to Lord COKE in Bonham's Case, 8 Reporter, 115, 118a, the omnipotence of parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the commons.[8]

The idea that courts could declare statutes void waxed and then waned in England, but it was well known in the American colonies and in the bars of young states, where Coke's books were very influential. The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.[9][10]

Some legal scholars argue that the legal basis and concept of judicial review predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[11]

However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

The concept was also laid out by Alexander Hamilton in Federalist No. 78:

"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[12]

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]

The Courts have no such power , however Jefferson has no leg to stand on, as HE created the Precedent.

Well, we can argue about whether the Courts SHOULD have the power, but they clearly have it and have had it for some time.

 

[Procrustes Stretched]

The Courts have no such power , however Jefferson has no leg to stand on, as HE created the Precedent.

So you are saying judicial review is not the same thing as "the ultimate authority to decide what was Constitutional and what wasn't" ?

 

[Procrustes Stretched]

Well, we can argue about whether the Courts SHOULD have the power, but they clearly have it and have had it for some time.

please be specific and recite this power so there is an understanding of exactly what everyone is talking about?

 

[Care4all]

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

 

[Procrustes Stretched]

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

here you go:

The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about.

There are three branches in the United States government as established by the Constitution. First, the Legislative branch makes the law. Second, the Executive branch executes the law. Last, the Judicial branch interprets the law. Each branch has an effect on the other.

 

[Luissa]

The Courts have no such power , however Jefferson has no leg to stand on, as HE created the Precedent.

actually it was John Marshall who set the precedent!Jefferson was just President at the time!

 

[Steerpike]

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.

I'm well aware of how long the theory was around. The issue wasn't decided until Marbury, but Marshall drew on plenty of arguments that had been made for years.

Your desire to insult people is unfortunate, however. Surely the issue can be discussed without that.

 

[Procrustes Stretched]

actually it was John Marshall who set the precedent!Jefferson was just President at the time!

here we go:

The doctrine was specifically enshrined in some state constitutions, and by 1803 it had been employed in both State and Federal courts in actions dealing with state statutes, but only insofar as the statutes conflicted with the language of state constitutions.[9][10]

Some legal scholars argue that the legal basis and concept of judicial review predate the case, and that Marbury merely formalized it. For example, Saikrishna Prakash and John Yoo point out, with respect to the ratification of the Constitution, that "no scholar to date has identified even one participant in the ratification fight who argued that the Constitution did not authorize judicial review of Federal statutes. This silence in the face of the numerous comments on the other side is revealing."[11]

However, it is important to note that nothing in the text of the Constitution explicitly authorized the power of judicial review, despite persistent fears voiced by Anti-federalists over the power of the new Federal court system.

The concept was also laid out by Alexander Hamilton in Federalist No. 78:

“ If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[12]

 

[Steerpike]

actually it was John Marshall who set the precedent!Jefferson was just President at the time!

There was a lot of politics that came into play as well. Marshall in effect ruled in favor of his political enemies, while at the same time securing the power for the court. It was a smart move that kept his enemies more or less in check because they'd won the court decision and so it was hard for them to complain.

 

[RetiredGySgt]

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

The Executive is a check on the Legislative Branch, though if the legislative Branch is 75 percent behind it that check goes away.

The Legislature and the Executive are checks on the Judical Branch. The Courts can be changed by either of them.

 

[RetiredGySgt]

actually it was John Marshall who set the precedent!Jefferson was just President at the time!

You may want to review WHAT CASE caused him to "set the Precedent".

 

[Steerpike]

T

The Legislature and the Executive are checks on the Judical Branch. The Courts can be changed by either of them.

The Legislature also controls the appellate jurisdiction of the Supreme Court, which could act as a check if the Court is doing something they don't like. Not likely to be used, however.

 

[Procrustes Stretched]

I'm well aware of how long the theory was around. The issue wasn't decided until Marbury, but Marshall drew on plenty of arguments that had been made for years.

Your desire to insult people is unfortunate, however. Surely the issue can be discussed without that.

I insulted you? pardon. Maybe my words "based on an ignorant reading or a bogus argument: strawman." seem an intend insult. they are not pardon.

'strawman' should have had a question mark(?) after it. I merely said your question was maybe based on ignorance of understanding. you have clarified some. and I mentioned a maybe bogus argument which many people on these pages put forward. I will remember how defensive you are.

pardon

---

what issue wasn't decided until Marbury? please try and be specific (spell it out) as there often re many understandings here on subjects like this when people are not understood clearly. It can be a waste of time and bandwidth

 

[Steerpike]

what issue wasn't decided until Marbury? please try and be specific (spell it out) as there often re many understandings here on subjects like this when people are not understood clearly. It can be a waste of time and bandwidth

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.

 

[editec]

Ultimately the STATES have authority over the constitution.

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

 

[RetiredGySgt]

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.

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.