Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: fluffdaddy
"And by the way, Marbury doesn't hold what you apparently think it holds."

I'm not sure what's greater - your arrogance, or the fallibility of your clairvoyant power.

What I know with respect to the central legal holding of Marbury, is that Marshall's opinion establishes, for the first time in American jurisprudence, the principle of judicial review.

My point, was that it wasn't (your words) "just a court case", but in fact an event that quite literally changed the course of American history.

133 posted on 02/23/2011 2:53:17 PM PST by OldDeckHand (So long as we have SEIU, who needs al-Qaeda?)
[ Post Reply | Private Reply | To 128 | View Replies ]


To: OldDeckHand
I'm not arrogant, just informed. I taught Federal Courts and Con Law for some years and I could recite passages from Marbury from memory. You, on the other hand, don't seem to know the case at all.

Marbury is often cited in support of the principle of judicial review. In fact, however, it had nothing to do with judicial review in the modern sense. Marshall's holding was only that courts have to determine what laws are constitutionally valid for the narrow purpose of determining their own rules of decision. Marbury couldn't get the relief he requested from the courts because the statute he based the request on wasn't constitutional. Courts get to determine for themselves what their duties are under the Constitution. Fair enough, who could argue otherwise; hardly a world altering event.

Nothing in Marbury even suggests that the Supreme Court can tell the other branches of government what their constitutional responsibilities are. Courts, as Marshall observed, have to decide what they need to do to comply with the Constitution. So do Presidents (and for that matter Congresses).

The idea that the Executive branch has to dance to whatever tune judges choose to play is profoundly anti-constitutional. That isn't Marbury, it is modern leftism. Progressives have found the notion of judicial supremacy useful ever since the 50’s and that notion is as destructive of our constitutional order as every other aspect of progressivism. Obama is doing that notion a great deal of damage, it's an ill wind that blows nobody any good.

The Constitution doesn't make the Executive subordinate to the courts. The branches are equal, but the Executive with its monopoly on physical force is more equal than the others and all three are subordinate to the people. That's what the document says and that, by and large is how it has been understood for a couple of centuries.

To paraphrase RR, the problem isn't what you don't know, it's what you know that just isn't right.

134 posted on 02/23/2011 4:25:57 PM PST by fluffdaddy (Who died and made the Supreme Court God?)
[ Post Reply | Private Reply | To 133 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson