The problem with dumping Marbury is that there is nothing to replace it with. Someone has got to be the final authority on the interpretation of the Constitution. If it's not the Court, then who is it?
On the other hand, I do think that making Marbury v. Madison into a national debate is a good idea. The activists on the Court are so smug in their belief that they control everything. If they were faced with the prospect that the Congress and the President would no longer accept the Marbury v. Madison decision, then they might moderate their extremism.
And the fact is that it's the acceptance of Marbury by the Executive and the Congress that gives the doctrine its bite. If the other branches of government would not accept it, then it's meaningless.
Certainly not the judiciary.
The Framers were so suspicious of the judiciary that they gave it the least authority, and feared it the most.
Today we have a history of what an unfettered judiciary is capable of. That's something the Framer's didn't have.
We have only to look at our activist courts and see the results of appointing people to powerful lifetime positions free from accountability.
Fact is that the decision was NOT accepted at the time it was issued and Mr. Marbury NEVER recieve the commission he had sought. President Madison noted their ruling then ignored it. It wasn't until the 20th century that this ruling began to be abused by activists on the court!
And the fact is that it's the acceptance of Marbury by the Executive and the Congress that gives the doctrine its bite. If the other branches of government would not accept it, then it's meaningless.
AMEN and amen!
The people, through their elected representatives in Congress and the state legislatures. If Marbury vs. Madison had been handled CORRECTLY, the court would have informed the Congress of a Constitutional conflict (or lack of Constitutional authority), and recommended that a Constitutional Amendment correcting or clarifying the identified problem be passed.
Instead, John Marshall usurped the power from the people on behalf of the Judicial branch. We are reaping the results of that today.
The prevailing understanding today--at least the functional one--is that the Constitution means whatever at least 5 of 9 Supreme Court justices say it means. My read of the Constitution is that it means whatever 2 of the 3 branches of the federal government say it means. A defender of the current practice can argue that the Court can assume that the executive and legislative branches are aware of their decisions, and if they disagree they have remedies to change any decisions they don't like--e.g., the legislative branch by passing a law, limiting the scope of the Supreme Court's jurisdication (a power specifically provided to Congress in the Constitution), initiating an amendment, or impeachment; the executive branch by ignoring the ruling. The legislative and executive branches are in turn held accountable to the electorate. The problem--the legislative and executive branches have failed to use these rememdies, thus granting the judicial branch with enormous extra-Constitutional authority. To take it further, the electorate has tacitly gone along with this course of appeasement.
The founders intended that the people would be the soveriegn in the Republic they were creating. As such the final arbiter on the meaning of the constitution would be the public. The court assumed this power for itself in the case of Marybury vs Madison. However in reality its hold on this power has always been tenuous because the power does not legitmately belong to them and it can only be maintained through the acquiesce of the public. If the court steps over the line (as it has in the past) the court threatens its very existence. A good example of this happening in the past would be after the infamous dred scott decision the courts ruling were generally ignored by the Lincoln Administration. The Lincoln Adminstration was able to act in this manner because of the state of crisis that existed and because the public had lost faith in the court. The courts main power rests on the need for a neutral party to settle disputes in our political system. When the court acts in a manner that shows a political bias the court endangers this authority. As such there is no need to overturn Marybury v. Madison. The court in recent years has gone a long way to achieve this goal by itself.
Why? I've seen discussions of the founding era where the read seems to have been that the founder's scripted us a dynamic balance and not a final authority. Look up "popular sovereignity".