Does that mean the southern states and the effected merchants were free to disregard the Prize Cases ruling as well, since they were entitled to their own "interpretation" of the Constitution? Just curious.
The Militia Act and the Judiciary Act were already on the books. They block unilateral state secession. No one could mistake that. The rebels didn't even bother going to court - even with Taney on the bench.
Also, the southern states and affected merchants were not branches of the federal government.
The way the law was perceived in 1860 was that each of the three branches of government interpreted the Constitution themselves. Court rulings applied only to the parties in the suit.
Walt
...and Lincoln's military, acting under his order, was a party in the Merryman ruling, therefore it applied to him. Glad we settled that.
The following article appears in FINDLAW's WRIT Legal Commentary from 2/24/2003. The above link goes to the complete article which is about six pages in length.
The 200th Anniversary of Marbury v. Madison:
The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind
By JOEL B. GROSSMAN
---- Monday, Feb. 24, 2003
Today, February 24th, 2003, marks the 200th anniversary of an extraordinary legal event: the Supreme Court's decision in the case of Marbury v. Madison
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There, the Court - in an opinion authored by Chief Justice John Marshall - ruled that it was not bound by an act of Congress that was "repugnant to the Constitution."
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Issue #3: Should the Judiciary Have a Monopoly on Constitutional Interpretation?
Was Marshall right when he suggested in Marbury that judicial review - testing statutes against the Constitution - is an exclusive power of the Supreme Court?
Certainly Marshall made a strong argument for judicial review as a power of the Supreme Court. But his argument for exclusive "monopoly" power is weak at best. He argued that "it is, emphatically, the province and duty of the judicial department, to say what the law is." But while he establishes fidelity to the Constitution as the judiciary's duty, he does not necessarily demonstrate that it is only the judiciary's province - as opposed to the province of all three branches of government. For example, Marshall notes that in a written constitution of enumerated powers, the constitution is superior to ordinary law. But his deductive argument that this implies exclusive judicial review is not compelling.
Marshall noted that the judges take an oath to honor the Constitution. But he neglected to say that so do members of the other branches of government, and therefore they are equally bound to act constitutionally. Why is the judgment of constitutionality the Court's job alone?
These are good questions, but Marshall's view, whatever its logical and historical shortcomings, has endured. That's because judicial review has worked reasonably well, and no one has come up with a better idea. Alternate theories, for example, that each branch may interpret the Constitution's meaning for itself, or that the first branch to interpret a provision of the Constitution prevails, have never commanded much support.
To say that the Supreme Court has designated itself as the final arbiter of the Constitution's meaning, is not to say that the Court is "all-powerful." It dodges some questions on the ground that they are too "political" and should be decided by the other branches. And as Louis Fisher and others have noted, the Court's judgments are not always final, or obeyed. Talk about "judicial supremacy" thus is usually more rhetorical than real.
There are other gaps in the Court's alleged control of constitutional meaning. For example, there are many issues about which the Constitution is "silent," or where the Court has simply not spoken. These include, for example, the grounds for impeaching a president (what are "high crimes and misdemeanors?"), whether a president can pardon himself, and the extent of the president's "war powers." These constitutional issues, and others like them, are governed by what might be called "constitutional understandings"-- norms that prevail by agreement or circumstance unless and until the Court addresses them.
For all these reasons, while the Supreme Court is certainly no longer the "least dangerous branch" that Alexander Hamilton described in Federalist 78, it is also not all powerful, nor always "supreme in its exposition of the constitution.".
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