Thursday, August 06, 2020

As Opposed to Adherence to Founding Intent

Adherence to precedent is a foundational doctrine of our legal system.  [More]

[Via Michael G]

Posted by David Codrea at 8/06/2020 10:54:00 AM

1 comment:

Anonymous said...

In my mind, there's no greater example of judicial precedent coming into conflict with founding intent than Marbury v Madison (1803).

https://www.history.com/topics/united-states-constitution/marbury-v-madison

"In Marbury v. Madison (1803) the Supreme Court announced for the first time the principle that a court may declare an act of Congress void if it is inconsistent with the Constitution."

"Chief Justice John Marshall, writing for a unanimous Court, denied the petition and refused to issue the writ. Although he found that the petitioners were entitled to their commissions, he held that the Constitution did not give the Supreme Court the power to issue writs of mandamus."

The Constitution did not give the courts the power to decide the validity of
legislation based on constitutionality either but he didn't let that mere detail stop him.

"Although the immediate effect of the decision was to deny power to the Court, its long-run effect has been to increase the Court’s power by establishing the rule that ‘it is emphatically the province and duty of the judicial department to say what the law is.’ Since Marbury v. Madison the Supreme Court has been the final arbiter of the constitutionality of congressional legislation."

In short, there is no language in the Constitution, original text or amendments to same, that grants such power to SCOTUS. Congress could have amended the Constitution to make Marshal's power grab constitutional. And they probably should have, but they never did.

8/06/2020 3:41 PM

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