[jammer]

Great article, but one quote seems incorrect to me--the statement that there are 5 Constitutional sources of veto power over unconstitutional laws. I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

[Database]

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.

[betty boop]

...one quote seems incorrect to me--the statement that there are 5 Constitutional sources of veto power over unconstitutional laws. I believe the Constitution does not give that power to judges. That "power" wasn't established until later in Marbury v Madison (1803 IIRC).

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.