I think Chief Justice John Marshall was, in a certain sense, endeavoring to increase the power of the court -- by virtue of the doctrine of judicial review -- in Madison v. Marbury. But I think he had a reasonable basis to do this, given the language of Article III, section 2: "The judicial power shall extend in all cases, in Law and Equity, arising under this Constitution...." This must mean the law under which a person has been indicted must pass muster under the Constitution, that the justices must measure the law against what the Constitution requires in order to render justice. If there is no constitutional basis for the law, then it is a nullity and has no force.
If the court should so find, this would be a rebuke of Congress, to be sure; yet it is not a direct veto on an act of Congress, but an indirect one resulting from the presentation of an actual case at law where statutory requirements must in all justice be subordinated to the constitutional rights of a real, actual defendant who has been indicted for an alleged crime.
It seems to me that judicial review of the constitutional basis of a law is something that ought to occur at all levels of the federal bench. Obviously, this is not the case.
So if SCOTUS winds up being "the court of last resort" for judicial review, so to speak, perhaps that is not a bad thing -- provided the justices' decisions actually accord with the Constitution rather than with their own jurisprudential preferences. This is where things really get dicey....
Perhaps the answer lies in less judicial reliance on the principle of stare decisis. A "bad" (e.g., patently unconstitutional) SCOTUS decision doesn't get any better with age; and to bind the Court with wrongly reasoned precedent is no service to justice.
Thanks so much for writing, jammer, and pointing out this very important issue.
OK, I have more time now.
"that the justices must measure the law against what the Constitution requires in order to render justice. If there is no constitutional basis for the law, then it is a nullity and has no force."
The historians of law would love everybody to believe that. The history of law is quite different.
The Constitution itself, started solely as an investment of some authorities in a centralized federal government. The BOR was added as almost an afterthought.
"Common Law" does not mean "ordinary law". It means "the law of the common folk".
The kingdoms that came about in Britain finally realized it was better to have the regular folks deal with issues like murder, rape, etc. So "common law" by it's essence is law not of or by the government, but the law of the people.
The true source of law is regarded by the framers as being the almighty, not government. Story himelf at one point states in his commentaries that even Supreme Court decisions are interpretations and opinions about law, not true law.
The vast majority today of what masquerades as "law" is actually "equity".
I rarely discuss law and politics anymore. We are close to the point where, if a judge tells the bailiff to haul you off and put you in chains, the bailiff will do so, whether you or the judge is right or wrong.
And then law no longer makes a difference, it is then simply "might makes right".