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June 23, 2005
The Final Arbiter
Jack Kelly of Irish Pennants, in an essay I otherwise agree with, says:
The second [Constitutional amendment that would provide a way to diminish the reach of activist judges] is to do what the Founding Fathers didn't, and establish a means for resolving disputes in Constitutional interpretation among the three separate, but equal branches of the federal government.Judicial review is nowhere mentioned in the Constitution. In his landmark decision in the case of Marbury v. Madison, Chief Justice John Marshall said it was implied by the Founders. But James Madison hotly disputed this, and Madison took part in writing the Constitution. Marshall did not.
Not providing a means for addressing disputes in constitutional interpretation was one of the (few) mistakes the Founders made, like the original method for selecting the vice president (the guy with the second highest total of electoral votes). There needs to be a power of judicial review. But the one unelected branch should not be able to run roughshod over the other two.
This is a fundamental mistake; the same mistake in fact, that the justices made in Marbury v. Madison: the meaning of the Constitution is not up to the government.
The reason that no final arbiter of Constitutional meaning is named in the Constitution itself is that, in a free Republic, every citizen is the arbiter of Constitutional meaning. If I, for example, am seated on a jury, and find the law with which the defendant is charged to be unconstitutional, it is my duty as a citizen to find the defendant not guilty. If I am a judge, and find the law under which a person is charged to be unconstitutional, it is my duty as a citizen to dismiss the case. If I am a police officer, who after all is merely charged with doing full time what all citizens are supposed to do opportunistically (that is, to enforce the laws duly set out under the authority of the appropriate governing documents that bind me), and I find that a law is unconstitutional, it is my duty as a citizen to not enforce that law. The same goes for a district attorney.
And this power works in reverse: if the Court attempts to strike down a law that is Constitutional, the President and Congress and every citizen should ignore the Court on that issue. (That option, obviously, is not available to the defendant in the case at issue, who is still bound by the decision of the Court. The key is to keep that decision from having broader effect.)
And what goes for any other citizen goes for the President: no matter what the Supreme Court says, the President should not enforce an unconstitutional law. And it goes for the Congress: unconstitutional acts by the President should be a case for impeachment. And it goes for the Courts: a power unconstitutionally granted the Court by law is still unconstitutional.
In fact, Marbury v Madison itself shows that the Court itself recognized this to some degree: the Court refused to use a power (to issue writs of mandamus) granted it by the Congress, when the Congress had no Constitutional authority to grant the Court that power. Had the Court stopped there, rather than arrogating the power to strike down as unconstitutional any law, rather than to prohibit the application of that law in cases that come before it, Marbury v Madison would have been a good precedent. As it is, it must be reigned in, but not by giving the government the exclusive control of the Constitution that Kelly's proposal would inevitably grant.
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