Justice Scalia observed:
"The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn't say that anywhere. We made it up."
Almost two centuries ago, a Jeffersonian republican asked a simple question:
Is the Constitution supreme over the court, or the court supreme over the Constitution?
_____________________________________
jwalsh07 wrote:
To be specific, Marshall made it up and tried to force it on MAdison and Jefferson. Madison and Jefferson told Marshall where to stick Marburys commission.
Actually Scalia is wrong and so are you two.
Marshall said that acts repugnant to our constitutuion are void.
IE, -- the simple words of the Constitution are supreme over ~everyone~ ; -- courts, legislatures, and the executive.
Marshall didn't 'make it up' he reasoned that:
"-- it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. ---
--- Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
John Marshall, 1803
_________________________________________
Marbury v. Madison (1803)
Address:
http://usinfo.state.gov/usa/infousa/facts/democrac/9.htm -1,508-
Constitution of the United States says that the Supreme Court shall be the last word on what the Constitution means?' Or are you suggesting that the Constitution says 'that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution?'
If Mr. Scalia missed something in that regard, I will be happy to stop quoting him...
-1,518-
Scalia missed the fact that we didn't 'make it up'.. Just as I said above, - and repeat below:
--- Actually Scalia is wrong and so are you two.
Marshall said that acts repugnant to our constitutuion are void.
IE, -- the simple words of the Constitution are supreme over ~everyone~ ; -- courts, legislatures, and the executive.
Marshall didn't 'make it up'. -- Read his opinion in M v M.
Actually, Mr. Justice Scalia is correct: “[The Federal high court] made it up.” The Constitution nowhere delegates to the court the power to determine what the Constitution means.
“The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant.”
Melvin I. Urofsky, Marbury v. Madison - Background and Explanation
But let’s go to the “horse’s mouth” – Mr. Justice Marshall’s opinion:
“It is emphatically the province and duty of the judicial department to say what the law is.“
“...(I)t is apparent that the framers of the Constitution contemplated [the Constitution] as a rule for the government of courts, as well as of the legislature.”
Quite obviously, Mr. Justice Marshall wanted to have it both ways: he gave lip-service to the Constitution “as a rule for the government of courts,” but also claimed (with no obvious constitutional basis) a power “to say what the law [including the Constitution] is.”
That, my friend, is like telling your kids that they have to obey the rules – and then letting them write the rules...
;>)