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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.
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
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.
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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Bump for later.
Great post. Bookmarked.
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Marshall wrote that the Supremacy Clause:
--- "confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
And the clause itself goes on to require that all legislative, executive, and judicial officers, both of the United States government and of the governments of the states, "be bound by Oath or Affirmation, to support this Constitution" . . .
What more need be said?
Bump for later reading.
--- "confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."
And the clause itself goes on to require that all legislative, executive, and judicial officers, both of the United States government and of the governments of the states, "be bound by Oath or Affirmation, to support this Constitution" . . .
What more need be said?
I had no idea Marbury was so...deep!