But what are you suggesting, then? In whose hands are Constitutional principles most safe?



I certainly don't have a lot of faith myself anymore in the "American people" themselves, whose "democratic choices" can often run wholly counter to the Constitutional principles of limited government and individual rights.



Democracy is a lot less important than liberty.

Actually, Orrin, Marbury v Madison was a fine decision. It did not argue for judicial supremacy as we now understand it; only that judges have an obligation to identify and apply the law, not to defer to Congress or the executive branch in their judgments. By arguments identical to that of Chief Justice Marshall, the President has an obligation to judge the Constitution and the law, and to faithfully execute the laws, without defering in his faithful execution to the wishes of Congress and the courts. If this discretion to judge and apply the law is abused, then both presidents and judges can be impeached.



Parry - agreed that democracy is less important than liberty, but checks upon power are what assures liberty. We cannot make judges supreme any more than we can afford to let congresspersons and presidents be supreme.

pj:



What were there about 80 years between M v. M and the next law they overturned? But it is now abused and therefore should be discarded along with its bastard children like Roe & Miranda.

I highly recommend Van Alstyne's "A Critical Guide to Marbury v. Madison", 1969 Duke Law Journal 1, reprinted in United States Constitution & Legal History
(1987), to anyone with access to a law library. Van Alstyne does an excellent job of poking holes in the traditional understanding of Marbury
. If Supreme Court justices must refuse to enforce laws they decide are unconstitutional because of their oath to uphold the Constitution, why should be expect, say, the clerk of the House of Representatives, who swears a similar oath, to enroll a bill he believes to be unconstitutional?



Van Alstyne also explains the political situation that forced Marshall to invent judicial review, which was a much more pragmatic solution to practical problems than you might think.

Congress, of course, would consider that the constitution put no bounds on congressional power. At least in the supreme court it is primary a negative power, to thwart rather than enable government action.

You do realize, of course, Orrin, that you're calling for one of the foundational pillars of the American judicial system to be overthrown. I agree that judicial review _has_ been abused, but that abuse is no reason for a good and sound principle to be tossed out. (You tell me this: why didn't Congress pass legislation to invalidate judicial review after Marbury v. Madison, or at any time thereafter over the past 200 years?)

mike:



Forty million dead would say that Roe enabled action rather than putting a brake on it.

oj - Marbury v Madison spells out the logic for why the President has an obligation to refuse to enforce judicial decisions he believes are unconstitutional, just as justices have an obligation to refuse to enforce, in their courtrooms, laws they believe are unconstitutional. It is this logic that gives the rest of government a check, short of impeachment, on judicial usurpations such as Roe v Wade. We should embrace the position of Marbury v Madison, not throw the baby out with the bathwater.



What is wrong is the recent assumption of judges and lawyers that only the judicial branch is allowed to interpret the Constitution, and everyone else must submit. Rather, the Constitution is everyone's possession, the law which underlies every government official's power, and therefore every government official is obliged to understand it and conform to it to the best of his abilities.

PJ took the words right out of my mouth. :)

pj:



When you strike against the King, you must kill him.

oj - If you kill the judiciary, you are also striking at the Constitution.

Here's
a good article about how the Court has abused Marbury.