John Marshall was an activist justice. He invented the concept of judicial review in Marbury v Madison which gave his Supreme Court huge new powers and the concept of judicial review of bills passed by the legislative branch is nowhere in the Constitution.
There’s no telling how John Marshall might have ruled after the passage of the citizenship clause of the 14th Amendment. John Marshall was a slaveholder but he had also argued cases for emancipation as an attorney.
There’s been 117 years to reverse the Wong ruling with lots of Supreme Courts composed of lots of different configurations. It still stands “stare decisis.”
.
I am of divided mind regarding "Judicial Review". On the one hand it seems reasonable to think that such a thing is implicit in the delegated powers, but on the other hand it seems like an overreach.
*Someone* has to decide if something is constitutional. I would suggests the courts *OUGHT* to be better at it than the Congress, and we certainly don't want that power in the hands of the Executive.
There’s no telling how John Marshall might have ruled after the passage of the citizenship clause of the 14th Amendment. John Marshall was a slaveholder but he had also argued cases for emancipation as an attorney.
He always ruled against the Indians. I also dare say that in those days there was a difference between believing someone shouldn't be a slave and believing that they should be regarded as an equal. Most Abolitionists did not believe this. Even Lincoln made a point to say that he didn't think slaves were his equal.
There’s been 117 years to reverse the Wong ruling with lots of Supreme Courts composed of lots of different configurations. It still stands “stare decisis.”
Why would anyone want to reverse it? The damage it causes is subtle and widely spread, where the pain it could cause if it were reversed would be immediate and would be concentrated on specific litigants for whom the court would have sympathy. Indeed, I think the Wong ruling was more the product of sympathy and teaching those racist Democrats a lesson than any other reason. Plus the court had all that backlash from their Plessey ruling. (Another example where people don't believe someone should be a slave, but don't really believe them to be equal either.)