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Wednesday, July 29, 2009


P. Chirry

Except the constitution didn't give the court that power. The court gave itself that power in Marbury v. Madison.


Yes it did. Using the powers that the Constitution gives it. Voila. Also, it is pretty clear that Hamilton, at least, anticipated Judicial Review.

P. Chirry

Where in the constitution is the court granted the power to give itself the power of judicial review?

The only thing that could be remotely interpreted as meaning that is "the judicial Power of the United States, shall be vested in one supreme Court"

Judicial means "having to do with a court of Justice" and no court in the world _ever_ before Marbury v. Madison had the power to veto laws.

Saying that Roe v. Wade is constitutional because the Supreme court was granted the "judicial Power of the United States" is like saying that because the executive branch is granted the "executive Power of the United States" it was constitutional when Andrew Jackson ignored the Supreme Court and sent the Cherokee packing on the Trail of Tears.


judicial review was nothing new, when marbury was handed down. it was presupposed by courts years prior. look at what the virginia sup. crt. said in kamper v. hawkins.

the judicial branch is no better or more authoritative than the other branches, when interpreting the constitution. however, the courts are also no worse. st. george tucker said that a constitution is “a rule to all the departments of the government, to the judiciary as well as to the legislature.”

that is to say that a court is bound to review cases that come before them and rule as to their constitutionality. such judicial review doesn't necessarily elevate a judge above a president or legislator. it preserves the constitution as supreme.

that said, when kb says that sup. crt. "put its own political preferences into basic law" in roe v. wade, he is wrong to say that the court was merely "using the powers that the Constitution gave the Court."

the constitution gives no such power to the judiciary to implement political preferences, which is wholly different than judicial review.


kb and p. chirry, i think you're both mistaking the "judicial review" theory as explained in marbury, with the "judicial supremacy" theory that many law schools teach today.

justice marshall never said or implied anything close to judicial supremacy in marbury. he only reiterated what jefferson and madison and other republicans were kicking around around for several years, that the judiciary was as duty-bound to uphold the constitution as the other two branches.

many federalists, however, were arguing for judicial supremacy, that the courts were the most competent branch to decide constitutional questions. but marbury refuted that.


P.Chirry: Where in the Constitution does it say that the Court has only the powers explicitly mentioned in that document? Original Intent and Strict Construction are interpretive doctrines developed independently of the text.

lexrex (great pen name!): I agree that judicial review was not new when the Marshall Court began to exercise it in earnest. I would add that the Marbury case basically writes Hamilton's Federalist 78 into Constitutional Law, and so has solid roots in Originalism.

I don't think I am confusing Judicial Review with Judicial Supremacy. The Court's powers extend (mostly) only to specific cases. The only force that doctrines like judicial review or strict scrutiny have comes from the expectation that the Court will apply them in future cases.


thanks for the name compliment. samuel rutherford's book helped mold my thinking, way back when.

it sounds as if you and i are on similar planes of thought on this issue, except that i'm not quite understanding how you can then say that roe is constitutional. i inferred that you were saying that something may be constitutional, if the supreme court says it is. am i wrong?

P. Chirry

KB, it doesn't say anywhere that the court doesn't have extra powers, but you are still wrong when you say that Roe v. Wade is constitutional because the court did it "using the powers that the Constitution gives it," because the constitution doesn't.

But listen to lexrex, he knows what he's talking about better than I do :-D.

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