Comments (12)

• Dick Fox

  I find it amusing that appeals are made to Jefferson concerning the power of the courts and yet it was Hamilton in Federalist 81 who made the best argument. If Jefferson ever wrote on this subject directly I would appreciate someone directing me to his words.

  Hamilton in Federalist 81:

  The arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless." This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.

  In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited Constitution; and as far as it is true, is equally applicable to most, if not to all the State governments.

  But Hamilton did not see the legislative control as a direct reversal of the judiciary by the legislative but to control the judiciary in its judgments through the threat of impeachment.

  And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security.

  In other words it is the place of the legislature to impeach judges who make law rather than interpret law. Our problem is in the weakness of the legislative bodies in their inability to control the judiciary.

  It must be noted that Hamilton did not seem to foresee the problems we have today with the judiciary or he might have altered his opinion. In his time the problem was with legislative bodies plundering the people for personal gain while not upholding their responsibilities.
  

  Published: November 4, 2008 8:11 AM

• Larry N. Martin

  Schemes to limit the powers of government always strike me as similar to tricks on yourself to keep you from eating too much and stick to your diet. Way too gimmicky to suit me.
  

  Published: November 4, 2008 9:08 AM

• Eric

  It should be noted that the constitution does NOT give the supreme court the power to overturn laws that they rule to be unconstitutional.

  Rather, The Supremes gave themselves this power in the Maybury vs. Madison ruling.

  But since mostly all the federal judges are appointed by government officials, what else would you expect besides judges who are heavily slanted in favor of governmental powers.

  I don't have any particular solution; the biggest flaw in the constitution is that it is not self-enforcing. This may be a practical impossibility, but I wouldn't mind seeing some punishments spelled out for members of congress and the president. But for now, there's little downside to a member of congress for voting on an unconstitutional measure. And when that bill passes and causes hardship, there's little recourse other than to replace that crook with another crook.

  At least, I'd like to see congress subject to financial responsibility for violations of the constitution. And I'd like them to be subject to jail time for crimes, non simply losing their office. There'd likely need to be a separate branch of government that would keep an eye on the rest of the crooks, but I'm afraid that would be no better than the police review boards that we see in cities. Other than some real way to hold them accountable, I see no way to have the government police itself.
  

  Published: November 4, 2008 11:52 AM

• Eric

  Oops, make that Marbury vs. Madison,

  http://en.wikipedia.org/wiki/Marbury_v._Madison

  Published: November 4, 2008 12:05 PM

• Yancey Ward

  Any honest reading of the US Constitution can lead one to only a single conclusion- the legislative branch is the dominant one of the three. It, and it alone, can remove the members of the other two. Judicial review is a power that was asserted by the Marshall court, but has no basis in the constitutional document itself, and the court has no power to enforce it's edicts other than those granted by the Congress via legislation.

  I know many are very adamant that this cannot be so (they are indoctrinated in the concept of separate, but equalbranches of government). The branches are unequal, and the founders were wise to make it so. I do think the legislators have delegated far too much power to both the executive and judicial branches. A time will come for a readjustment of this dereliction of duty.

  Published: November 4, 2008 12:28 PM

• scineram

  Marbury was correctly decided, so...

  Published: November 4, 2008 12:29 PM

• Abhilash Nambiar

  Seems to me like a neat arrangement they have got there. When it comes to popular ways of defending civil liberties we have the Congress with its directly elected members. When it comes to unpopular ways of defending civil liberties we have the Supreme Court with its unelected judges. They help each other stay in power and live happily ever after.

  Published: November 4, 2008 12:52 PM

• MJ

  The premise the Author takes is erroneous. The Congress may certainly abolish lower Courts if they so desire, but they have no Power To remove jurisdiction from the supreme Court -- (per the text) they may only assign Original jurisdiction to items that are otherwise Appellate jurisdiction (with the supreme Court picking and choosing about 1% of what is presented to them, such may have the desired result). The Congress under this delusion could eliminate the Judiciary entirely WITHOUT concerning themselves with Article V. That hardly seems consistent with the document as a whole.

  What happens when Congress passes a law that removes jurisdiction and the Court asserts it?

  Published: November 4, 2008 1:22 PM

• David Spellman

  All conventions of the state are constructed to keep the fruits of power and privilege flowing to those who control it. The only difference in forms are the vestigal trappings of the original system (in this case a constitutional republic). All civilizations devolve into despotism over time.

  It is nevertheless a virtue to try to educate as many as possible about what has been lost and what might be in the future. As long as virtually every citizen gloats about their pathetically misguided ignorance and servitude, no superior system of society will emerge. Hopefully the day will come when enough free people emerge to create a society of liberty.

  Published: November 4, 2008 2:05 PM

• Yancey Ward

  MJ,

  What happens is that the court has no authority. It cannot command anyone to enforce its decisions. The check, the true check on the legislative branch are the states and/or the people- if they acquiesce to the legislative branch's decision to remove jurisdiction, then that is that.

  Published: November 4, 2008 3:05 PM

• Evans M

  Ah, such nonsense again!

  Published: November 4, 2008 8:26 PM

• Eric

  The Marbury actual case result was't important; rather, it was how it was used to grant the power of judicial review to themselves extra-constitutionally that made it a crucial case.

  It was a clever political bluff. The others all folded and they won the power.

  Thus the court was transformed from making only case specific decisions to one that could make judicial law.

  All they needed from then on was to tie some particular case with some other real agenda and they get to turn on the turbocharged law-maker and take the congress/presidential bypass and go right to law street.
  

  Published: November 5, 2008 1:14 AM