[wagglebee]

I have always wanted one of these Constitutional "scholars" to show me where in the Constitution the SCOTUS is empowered to be the arbiter/interpreter of what is and isn't Constitutional. Because logic would dictate it lies within the executive branch's powers. Unfortunately, the Court used Marbury vs. Madison to seize this power and nobody (except Andrew Jackson) ever attempted to stop them.

[NJ_gent]

"logic would dictate it lies within the executive branch's powers."

Actually, that's the last place the framers would have placed such a power. The Executive branch was intentionally made the weakest of the three precisely because they were trying to get away from Crown rule, in which vast power was held by an individual. If we're not to hand that power to the SCOTUS, then the only other logical alternative would be the Congress. That creates a conflict of interest, as it's never going to rule that one of its own laws is unconstitutional.

The nice thing about giving the SCOTUS this power is that it's not subject to the whims of an individual, and there still remains one final check; the power to amend the Constitution. Do I like a lot of the rulings coming from the SCOTUS? Absolutely not - but I think I'd like a corrupt future Executive reinterpreting the second amendment to mean that I'm allowed to have two upper extremities even less.

[FreeBSD]

Unfortunately, the Court used Marbury vs. Madison to seize this power and nobody (except Andrew Jackson) ever attempted to stop them.

That opinion tells you where the 'scholars' find that "It is emphatically the province and duty of the judicial department to say what the law is." There are several arguments in there.

[asmith92008]

Actually, Raoul Berger makes a pretty convincing case that judicial review is constitutional in Congress vs the Supreme Court. However, he makes an even stronger case that that limited power has been expanded beyond all scope, i.e. by incorporating the Bill of Rights against the states.

However, there is also a strong argument that the fact that all officers of state and federal government take an oath to uphold the Constitution, that they have an implied right to interpret the Constitution. After all ,what would happen if the SOTUS wunderkinds decided one day to decide slavery was constitutional again (see Dred Scot) then would state officials really have to swallow that tripe?

[steve-b]

A claim that such-and-such a law may not be enforced because it violates the US Constitution is clearly a "Controvers[y] to which the United States shall be a Party" -- the judgment of which is explicitly assigned to the judiciary.