The Founders did not Grant the Federal Judiciary the Power to Interpret the Constitution

The Price of Liberty ^ | 03/29/2004 | Robert Greenslade

[Non-Sequitur]

The underlying reason why the federal judiciary was not granted the authority to interpret the Constitution was stated very succinctly by John Marshall who would later become Chief Justice of the United States Supreme Court¯“the judicial power cannot extend to political compacts.”

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." -- Chief Justice John Marshall

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[robertpaulsen]

"If 13 home owners got together, and by contract, created an agent and limited its duties to mowing their yards, trimming their trees, and maintaining the outside landscaping, would the agent have the power to interpret the contract to include duties not enumerated in the contract?"

Bad analogy. The agent (ie, congress) is not the one doing the "interpreting" -- I thought the author was complaining about the judiciary interpreting the constitution.

Using the above example, does the agent has the authority to cut down a dead (or diseased) tree? Must it then replace that tree? It has the authority to "trim trees" (not cut them down). It has the authority to "maintain the outside landscaping" (not modify the outside landscaping).

A third party (judiciary) is required to "interpret" the intent of the 13 homeowners. That is not up to the agent to decide.

If the third party consistently "interprets" the contract in a manner that looks more like activism, the 13 home owners may impeach and remove that agent. What's the problem with that arrangement?

[LiteKeeper]

Print out later

[Shadow Deamon]

"Bad analogy. The agent (ie, congress) is not the one doing the "interpreting" -- I thought the author was complaining about the judiciary interpreting the constitution."

I don't see it that way, the agent is the federal govt which includes all three of it's branches.

[Keith]

three words...Marbury versus Madison. And it's not getting reversed.

End of story. this is crapola.

[yankeedame]

...Bad analogy. The agent (ie, congress) is not the one doing the "interpreting" -- I thought the author was complaining about the judiciary interpreting the constitution...

I agree. It is a bad analogy.

"If 13 home owners got together, and by contract, created an agent and limited its duties to..."

First of all an "agent" is an individual that speaks for and carries out the business affairs of his employer; think of agents to writers, rock stars, etc.
The agent in turn would see to the hiring, firing, payments to, specifying duties expected, handling of taxes, workman's comp, etc. etc. of someone to carry out the agreed upon lawn care. Among his other duties the agent would act as a conduit between the homeowners and the lawn maintenance company re: any questions or "intrepretion" of contracted duties.

The Supreme Court, ITOH, is a separate and distinct branch of the Federal government as stated by the Constitution, and agreed to as such by all the States. It was never created by the states, for the states. In short, it is not and never was the States' "agent". The Judicial arm, like the Executive and Legislative, was established for the people of the United State of America, not for the States that compromise it.

[jcb8199]

Great Article!

[Bigun]

B U M P ! ! !

[ContemptofCourt]

"It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Federalist, No. 78

[Bikers4Bush]

Bump for later.

[robertpaulsen]

"the agent is the federal govt which includes all three of it's branches"

Fine. But it still comes down to the 13 home owners saying, "Here's a general idea of what I want done. You three 'branches' get together and make it happen."

If one branch makes all the decisions, then what's the function of the other two? Checks and balances require that all three get involved in the decision making.

If any one of the three get out of line, they may be replaced.

[robertpaulsen]

"Among his other duties the agent would act as a conduit between the homeowners and the lawn maintenance company re: any questions or "intrepretion" of contracted duties."

You're describing a pure democracy, not a representative republic.

The agent, in your example, would hire a lawyer (the judiciary) to interpret the contracted duties assigned to him by the 13 home owners.

If they consistently get the will of the 13 home owners wrong, someone gets fired.

[ContemptofCourt]

This entire article is flawed....the analogy of creating an agent is inherently false, as nowhere in the Founders' thoughts is that even implied. The FOunders were explicit in their directive that the Federal government, via the Constitution, had the power to trump the States (albiet a limited power, which was to be limited through the Judiciary....which is why the Founders made the Judiciary separate from the Legislative branch).

[tpaine]

Since the Constitution is a compact between the several States, and the federal government is not a party, but the result of that compact, it lacks the authority to define the extent of the powers delegated to it by the States.

Wrong. -- The powers delegated to both Federal & State governments come from the individual people of America. We the people defined the extent of powers delegated in our Constitution & Amendments.

Only the individual States, as the exclusive parties to the compact between themselves, possess that power.

Wrong. The states must obey our constitution & amendments, just as they ratified them.

If the federal judiciary had the power to interpret the Constitution, then it would be meaningless as a written document, because, as stated by Jefferson, judicial discretion, not the Constitution, would determine the measure of the federal power.

As Jefferson said, the Constitution & Amendments determine the measure of both federal & state power. [see the 10th]
The federal & state judiciaries are themselves bound to honor our constitution, and to find that laws repugnant to the principles of our liberties are void.

This article is a typical 'states rights' piece of agit-prop, intended to justify state government infringements upon individual rights.
Unable to change the US Constitutions guarantees of personal liberties, the statists attempt an 'end around' by claiming States can ignore them.
-- It's a pitifully obvious ploy.

[Hanging Chad]

The Constitution says what The Supreme Court says it says.
That is the reality.

[inquest]

Only for as long as you accept it.

[Hanging Chad]

"...Only for as long as you accept it..."
- - -
Which will be until 2/3 rds of the Senate CARE enough to change it.
Which just "ain't gonna happen".