Jumping Frog wrote:
All common (post 1803) "SCOTUS" constitutional / unconstitutional cases are UNCONSTITUTIONAL. SCOTUS was never allowed to dictate constitutionality! They usurped that power, under their own decree, and were never challenged by the legislature!
Have you ever actually read the Constitution? Why don't you review Article III, including but not limited to Section 2.
During the last more than 200 years it has been suggested that indeed SCOTUS, under the great Chief Justice John Marshall, granted itself the power to review the constitutionality of acts by the Congress and the President. Legal scholars, from 1803 to even a small few these days, have made a rational argument to this effect, but more discreet language has been used, thank goodness, than that our forum member has used here to raise the point. Such screaming tends to be ignored by those having power in our government, regardless of their political persuasion.
Certainly Article II of the Constitution does not explicitly
bestow on POTUS the power to decide upon the constitutionality of acts by the Congress or the President.
I find it difficult having to agree, at least somewhat, with our member who is making this argument 200 years too late, but I would be unprincipled if I did not.
SCOTUS quite arguably took the opportunity to assume that power in one lawsuit it ruled on in 1803, very early in the history of our republic. It is quite arguable that it was not necessary for the court to rule on that particular issue, nor did it, the issue not really being before the court, the argument being that its "holding" was obiter dictum
. Yours truly is one of those who questions the court's decision in that respect, along with great Americans like Thomas Jefferson.
This is still a legal question, Frog. I may be wrong. Jefferson may have been wrong. So please read this as my opinion -- not a fact.
But it was done, and with a lot of mumbling in many quarters it has become acceptable for over 200 yearts. It is water over the dam, now, and IMNSHO it is too late for anyone to do anything about it. "Anyone" includes the Congress, the President, individual states in the union, and the American people. I am not saying that nobody can
do anything about it; rather, I mean I do not believe there will ever be a viable attempt to do something about it, at least not in our lifetimes.
I believe that this very decision, Marbury v. Madison
, has directly led to SCOTUS becoming the political animal it is now. Is that good -- bad? One's view on that question is generally determined by comparing one's political philosophy with the current political philosophy of SCOTUS, as demonstrated by how five or more members join together to decide an issue important to a particular individual -- as demonstrated by whose ox is gored. SCOTUS's assumption, if you will, of this power has hardened into reality, and it is no longer questioned by lawyers and judges, and our citizens in general accept it, even though from time to time the issue pops up, often in intemperate language, just as we have seen it pop up here.
Besides, even if one should think, for one reason or another, that SCOTUS should not
have the final decision on this question, who else would we be left with to maintain some sort of order within what could become the chaos of the "checks and balances" in our Federal system of government?
The Congress? The President?