[Tau Food]

Obviously, the Court's answer is that it is an equal branch of the government and that it is the equal branch of the government that is obligated to decide the cases before it. Your argument seems to be that the legislature (another equal branch of the government) has the authority to tell the judicial branch how it is to perform its functions, that the legislature can force the judicial branch to utilize and apply statutes that the legislature passes whether or not the legislature has the power to pass those laws under the Constitution.

The Court put the argument slightly differently. The Court said that they were faced with two inconsistent documents - the statute improperly passed by the legislature and the Constitution. The Court argued that it could not enforce both because they were inconsistent and that they were forced to choose whether to enforce the Constitution or instead to enforce a statute that was in violation of the Constitution. The Court chose to enforce the Constitution.

Both sides of the argument played word games. The question of judicial review was inevitable and it probably should have been addressed in the Constitution. But, it wasn't.

Marshall's genius was to claim this power in a case that gave the executive branch a victory. Since the executive branch won the case, there wasn't anything that President Jefferson could do. The Court did not require that Jefferson do anything to enforce the Court's judgment. So, Jefferson had to just watch and seethe.

[T Ruth]

Your argument seems to be that the legislature (another equal branch of the government) has the authority to tell the judicial branch how it is to perform its functions, that the legislature can force the judicial branch to utilize and apply statutes that the legislature passes whether or not the legislature has the power to pass those laws under the Constitution.

No, that's not my argument. The courts have plenary power to decide cases however they choose; what they cannot do is declare statutes void.

The question of judicial review was inevitable and it probably should have been addressed in the Constitution. But, it wasn't.

It wasn't addressed because the Founders could not agree on a solution. It is a knotty problem. However, the pragmatic usurpation of power by the courts has outlived its usefulness. The current situation is simply intolerable. A new set of institutional remedies has to be developed.