Posted on 12/14/2004 3:30:28 PM PST by Ed Current
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
bump
Thanks for posting. I learned as much in law school, but most non-lawyers (and, indeed, most lawyers) still believe that the federal courts are the sole arbiters of constitutional interpretation.
1. The meaning of the Phrase "to regulate trade" must be sought in the general use of it, in other words in the objects to which the power was generally understood to be applicable, when the Phrase was inserted in the Constn.
Jackson's philosophy seems to be of the FDR "living document" school of thought.
You should at least read the prologue of the article before you call for overturning Marbury v. Madison. The point is that Marbury has been misinterpreted, but that the opinion itself uses flawless logic.
Courts have the duty to interpret laws and the Constitution, and to deem the Constitution as higher law that will override anything to the contrary included in a mere statute, but that should not be construed to deny the other two co-equal branches of government the right and the duty to interpret the Constitution as well.
Read about one-third of it, and it appears that this will not go down well with the oligarchy - federal judges.
It will be interesting when the SC makes a ruling and some President in the future tells them to go fly a kite under power lines.
Bookie-mark
to go fly a kite under power lines.
IN WET BLACK ROBES!
I disagree with pure "textualism", as it makes no attempt to discern original intent, or take into account changes in the commonly understood meanings of words.
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed."- Thomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823) FOUNDER'S LIBRARY
"The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical meaning; where the intention is clear, there is no room for construction, and no excuse for interpolation or addition." - Martin v. Hunter's Lessee, 1 Wheat 304; Gibbons v. Ogden, 9 Wheat 419; Brown v. Maryland, 12 Wheat 419; Craig v. Missouri, 4 Pet 10; Tennessee v. Whitworth, 117 U.S. 139; Lake County v. Rollins, 130 U.S. 662; Hodges v. United States, 203 U.S. 1; Edwards v. Cuba R. Co., 268 U.S. 628; The Pocket Veto Case, 279 U.S. 655; (Justice) Story on the Constitution, 5th ed., Sec 451; Cooley's Constitutional Limitations, 2nd ed., p. 61, 70.
What a FANTASTIC article. I cannot BUMP this any higher!
If I recall correctly, it was Hamilton, defending a loyalist in New York immediately after the Revolutionary War, who first argued that his client's guilt or innocence under the law which he was being charged was irrelevant because the law itself was unjust.
Hamilton won the case.
And that was several years prior to the Constitution.
That is likely where one of the next crises on the path to Revolution will happen. One day a president is going to have to say "That's your ruling? OK, what are you going to do about it?" Or the legislature is going to have to start passing bills with the stipulation that they are not subject to judicial review. One way or the other we're going to get to the place where the bullet meets the meat. And then everybody will be sorry but it is a "necessary phase."
What's your take on US v Morrison?
From a pragmatist's point of view, they are.
From a Constitutionalist's point of view, they should have been impeached back around the time the first Bank of the United States was held Constitutional.
bookmark for a cold winter night
If this was not written by a past editor of the Yale Law Journal, who teaches at the University of Minnesota Law School, and who is writing for a symphosium at the Northwestern Univ. School of Law, [he did work in the Regan Administration] I would think that some folks might consider this guy a backward yahoo.
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