Interesting discussion. Reading Marbury v. Madison is an interesting exercise that will leave you scratching your head what he meant. In a way this was one of the first shots fired in the eternal battle between the three branches of government. One of the beauties of our system is that each branch has weapons at its disposal, provided they have the guts to use them. The Constitution provides that the Supreme Court's jurisdiction can be cut back by the Congress, and the lower federal courts are not even required to exist. I don't believe the issue has ever arisen, but it is a good question if the Court would have the right to review a law that withdrew jurisdiction over an issue. The First Amendment's religious freedom clauses have been a continuing source of intellectual quicksand for the Court. For much of the Nation's history, these two clauses were understood only to prohibit the establishment of a federal church or religion (states were allowed todo that, with some exceptions) and religious qualifications for office or employment. When the Warren Court started trying to recreate America in the liberal image, one of the first targets was religious expression. In a series of cases the Court adopted out of whole cloth a vague and unworkable series of tests for excessive state entagnlement in religion, leading to such idiotic disputes as whether or not a judge can display the Ten Commandments. You are free to agree or disagree with the specific issue regarding school prayer, graduation prayers, football locker room prayers, creches, Ten Commandments, etc but the real issue is why a self-governing people cannot be allowed to resolve such issues at the local level through the democratic process. At worst, someone may feel vaguely excluded or whatever. In a pluralistic society, it is inevitable that someone is at the margin. To me that is a far better solution than having every aspect of our daily lives micro-managed by 9 unelected, unaccountable judges.
Just to amplify the point about Congress being able to limit the Court's jurisdiction, from Article III: Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Yawn....... aaa and pick.......please don't quote a constituion that at the time of writing did not 1) recognize women or 2) black men only counted as 3/th of a person 4) recognized slavery at the time of writing 5) recognized the right to bare weapons becuase they were on the verge of war 6) allowed public hangings ....do youget my drift? it;s a work in progress....
Ahhh we all do that....look at the 2000 election? Libs point out the S. Court, Conservatives point out the prior Fl. S. Court... But the constitution has to be a work in progress and constantly be reinterpreted....otherwise a man could walk down the street wiht a bazooka and say he is fulfilling his right to bare arms.
I don't see how a provision specifically laying out the jurisdiction of the Supreme Court constitutes "work in progress." The exceptions clause is one that has been much debated by constitutional lawyers. I don't see a political side to it. You may not like all aspects of our Constitution or the circumstances in our country when it was adopted, but it's the only one we've got and it served us pretty well for much of our history. The last 40 or 50 years have seen an increasing erosion of respect for the language of the document and the substitution of judges' personal opinions and policy preferences. The real danger of this approach is not that it makes the Constitution some kind of historical relic, as bad as that is. The real danger is that we are losing the right to govern ourselves and seeing it appropriated by unelected, unaccountable judges. Plenty of people seem to feel this is a good way to resolve tough issues that produce political heat, but it is clearly undemocratic. You may think that is a good result when you agree with the outcomes. Imagine a Court with 7 or 8 Scalia's and Thomas's and you may not find it such an inviting prospect.
"It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it." Otherwise, the legislature may alter the Constitution at will. "Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it." Marshall said it was absolutely clear that all of those who had framed written constitutionsâan implicit reference to the various state constitutionsâintended those documents to be supreme. As a result, "an act of the legislature, repugnant to the Constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this Court, as one of the fundamental principles of our society." Marshall was now defending the perimeter of judicial authority. In a sentence that has echoed through the years, the chief justice announced that "It is emphatically the province and duty of the judicial department to say what the law is." And then, the critical link in his argument: The Constitution was law. It could be interpreted by the courts in ordinary litigation. "If two laws conflict with each other, the courts must decide on the operation of each." If a law and the Constitution are in conflict, and if both apply to a particular case, "the Court must determine which of these conflicting rules governs the case. This is the essence of judicial duty." Pick the above is a quote from your document your link. It is known that when a judge says it is a "proposition to plain to be contested" , he has no authority. When someone argues it is "clear", it is not well thought out. "It is emphatically the province" and all the other aggressive statements he makes. If these words do not not turn on your judicial activist radar than you are a liberal who likes to see very active judges who like to make their own law. (I am not casting and insult here, some of my best professors were these kinds of people and argued very persuasively that judges should be activist). If the constitution really supported Marshall ruling he would have cited it and given us the federalist papers and writings from the framers and stuck to that. Instead he gave us powerful prose. Additionally, if you do a search on google and read some of the other papers, I think you will see that most commentators say he sort of made up -- the right to review congressional law. This is also what I was taught in school and have read many times. In fact you can see it even in your link. Marshall argued that what he was doing was needed and logical, he did argue that he was using the law as his controlling authority. Also regarding your plain reading or Article 111 section 1. I do not remember anyone making the argument you made. And while I am no constitutional lawyer, I believe that what you see there is a grant of power and jurisdiction. The first part of the sentence says what falls under the category of law (types of law, i.e. the constitution, treaties, etc.) and then the second part tells them what they have their authority over. Since you do not see the authority specifically granted to the Court to determine the constitutionality of Congressional legislation, you might actually argue that since it is not explicitly granted ---the Supreme Court does not have the power of judicial review. You see there are some matters which are not reviewable by the U.S. supreme court. LIKE STATE COURT RULINGS INVOLVING ELECTION LAW. (Just checking to see if people are awake.) P.S. excuse the sentence structure above, it is late, I am tired and this atkins diet is slowing down my brain.