Since the case of Marbury v. Madison many have held that our supreme court has the power to overturn national laws that it says violate the intent of the constitution.
Determining intent is not done consistently but instead the method changes depending upon what the justices need to justify their ruling. Sometimes the plain words of the constitution are used and other times they use “clauses” that not contain verbs like “general welfare” to try to justify their positions.
John Marshall was the chief justice of the court that ruled in Marbury. Marbury had been appointed justice of the peace by outgoing president John Adams in an effort to stack the judiciary with “midnight judges”. Congress had approved of the appointment.
The written commission needed to be delivered by the secretary of state, John Marshall. Marshall failed to deliver it.
Thomas Jefferson, the incoming president refused to recognize Marbury’s appointment. Marbury took it to court.
Incredibly the chief justice of the supreme court (John Marshall) who at the same time was the secretary of state who failed to deliver the commission agreed to sit on the case. Most of us would say that at the least he should have recused himself.
Instead Marshall took the opportunity to craft law and now, because enough good people stood by and did nothing, we have a situation where people that are not elected get to tell the country what the law is.
The framers of our constitution did not include language that gave the supreme court that kind of power. In fact the supreme court was thought to be so insignificant that it did not even have it’s own building until 1935, almost 150 years after the adoption of our constitution. The original justices were given the responsibility of traveling within their respective districts to hear cases for eight months out of each year. Even during the Marshall era of the court the justices only met together for two months each year.
Some will argue that the court has overstepped its bounds. Others will say that the actions were necessary.
Either way, wouldn’t we be better off if we amended our constitution to define what powers the justices do and do not have?
We deserve better