[tpaine]

jammer wrote:
I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

______________________________________


Interesting point. I think this power, while not explicitly stated in the Constitution, falls out of the function of the Court.
If there is a conflict between the Constitution and a law under it, the duty of the Court is to resolve in favor of the Constitution.

If this power is not inherent in the powers of the Court as defined in the Constitution, then one could only characterize the establishment of such a power by the Court itself as a usurpation.
7 -Database-

______________________________________


In M v M, Marshall simply explains that there is no 'conflict'. - That laws, or judgments, repugnant to the principles of our constitution are null & void, and that it is the duty of ALL of us to ignore them.

Certainly, it is just common sense to find that the USSC is charged in Art. III, Sec. 2 with the judicial power to decide all cases "arising under this constitution".
But this power is not absolute, as it too is checked & balanced by Congress, the Executive, and ultimately by the people.

-- In fact, as the article also notes, the people exercised that power in the case of prohibition.. -- We ALL simply refused to obey a 'law' repugnant to our constitutional common sense.