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To: sourcery; Remedy
My opinion is that the Founders had no consensus of opinion on this issue, and many probably had not fully considered all the issues.

They most certainly did have a consensus, as was indicated by virtually all major statements that touched the subject while the Constitution was being written and debated for adoption. It was only after the Constitution went into effect that some people imagined that the courts shouldn't override Congress, but it never approached the accepted view. Even before Marbury vs. Madison, a circuit court refused to take an action required by a certain part of the Judiciary Act, on the grounds that it imposed extraconstitutional duties upon the court (I don't have a citation immediately at my fingertips). Congress obligingly amended the offending provision, without controversy.

5 posted on 03/16/2003 6:20:37 PM PST by inquest
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To: inquest

>>as was indicated by virtually all major statements that touched the subject while the Constitution was being written and debated for adoption.<<

From Hamilton, who was a loose constructionist:

The Federalist No. 78

ALEXANDER HAMILTON
May 28, 1788

…all judges who may be appointed by the United States are to hold their offices DURING GOOD BEHAVIOR… The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them….The judiciary…. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

…from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches;

Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

Court excerises judgement, not will or force

Legislature voids any exercise of will by the Court.


6 posted on 03/17/2003 6:35:02 AM PST by Remedy
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