"...[T]he government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers..."
Kentucky Resolutions, 1798
Insofar as the high court claims to be "the exclusive or final judge of the extent of the powers delegated to itself," it's powers know absolutely no limit. Mr. Justice Marshall claimed to be "bound" by the Constitution, but he also claimed the right "to say what the law [including the Constitution] is." In short, he claimed a right to judge "the extent of the powers delegated," making the court's "discretion, and not the Constitution, the measure of its powers"...
;>)
Mr. Justice Marshall claimed to be "bound" by the Constitution, but he also claimed the right "to say what the law [including the Constitution] is." In short, he claimed a right to judge "the extent of the powers delegated," making the court's "discretion, and not the Constitution, the measure of its powers"..
Your out of context mis-takes on what Marshall wrote are a wonder to behold.
You seem to have an almost personal animosity to the man. -- I'll grant he was a deeply flawed individual in later years, but in 1803 he was at the top of his constitutional form.
What's your real beef here?
There is no avoidance of the fact that MEN must determine what that Constitution means. Nor is there of the fact that there can only be ONE current interpretation of that meaning. Fifty differing interpretations would spell the destruction of the Union and any pretense of a "Law of the Land." We can survive mistakes in interpretation and have but could not survive such a Balkanization as Jefferson's thoughts imply.
Now the People ultimately have the final say on the Constitution because they can amend to reconcile its meaning to a changed reality or their changed understandings. So ultimately they do have the final say and the Court cannot intervene in that decision in any way.
But, like all Law, the Constitution must be defined by the Courts with the final appeal at the USSC.
No document can protect the law against self-serving men and the best we can hope far is to reduce the number of such to a manageable number so the corruption is not fatal.
Certainly we have as much to fear from them in the Legislative and Executive branches as from the Court if not more. Certainly the Founders considered the Legislative to be the most dangerous.