But none of this would happen if Mr. Moster's contention ever became the law. Marbury v. Madison emerged as pure fantasy in the early days of our Republic and has evolved into the worst nightmare. Digital access or digital and print delivery. The issue before us is that the power of judicial review, i.e., the ability of the Supreme Court to declare acts of Congress and the executive unconstitutional, was not part of the Constitution when it was written. In the prior column, Professor Loewy challenged me to debate whether Marbury v. Madison, the U.S. Supreme Court decision in 1803, was properly decided. I stand by the notion of "nullification" as the ultimate check and balance that could be exercised by states or the people. "(The Constitution) has more wisely made all departments co-equal and co-sovereign within themselves.". Moster is a former litigation attorney in the Ronald Reagan and George H.W.

American public opinion had gradually turned against the Federalists in the months pri… There is precedent for the combination of branch responsibilities already written in the Constitution when the vice president (member of executive branch) can break a tie vote in the Senate. This may sound like an arcane point, but it is not. Marbury v. Madison has granted the Courts virtually dictatorial powers to controvert the will of the People and to act in the manner of a despot.
Finally, from a historical perspective, Jefferson addressed the inequity which could result from unjust laws passed by state legislatures in his native Virginia. Arnold: Court's power is obviously necessary. As the court once said, constitutions are only broad outlines. Finally, Jefferson made a critical distinction between the "abuse of delegated powers" by a branch of government and the dictatorial assumption of powers that were "not delegated by the Constitution." My answer is that, of course it does. Marbury v. Madison has granted the Courts virtually dictatorial powers to controvert the will of the People and to act in the manner of a despot. The topic for discussion is whether the Supreme Court unconstitutionally gave itself these powers in Marbury v. Madison, which was decided incorrectly. I have a compelling answer: The Supreme Court in Marbury v. Madison committed an illegal takeover of the government and Constitution by granting itself the unilateral and unchecked power to declare the acts of Congress or President illegal and unenforceable. Under his regime, if the state of Texas passed a law that said, "Charles Moster and Arnold Loewy are hereby sentenced to five years in prison for writing hogwash in the Lubbock Avalanche-Journal," he and I both would have to serve our sentences. Therefore we deny Korematsu the relief which the Constitution entitles him. I realize, of course, that most people would consider such a view dangerous or heretical. So, let us look at the previously described situations. Before Jefferson's involvement in the Virginia legislature, it was a crime in Virginia not to baptize infants in the Anglican Church (Baptists were not only banned but jailed!). So I ask Professor Loewy and our readers to cite one sentence in the Constitution where the Supreme Court was specifically delegated the right to declare the acts of the legislative or executive branch unconstitutional and thus void. Let's further suppose that Marbury had been decided the way Mr. Moster thinks it should have been. Mr. Moster contends the Supreme Court should not have the power to declare legislation or executive orders unconstitutional. Choose the plan that's right for you.

We will rely on the Constitution. The "checks and balances" hardwired into the Constitution prevent any one branch from usurping power over the others, which Jefferson considered to be essential to the survival of the new republic. He was so proud of this accomplishment that it was among the three achievements listed on his tombstone: the "Author of the Declaration of American Independence(,) of the Statute of Virginia for Religious Freedom and Father of the University of Virginia." He sees the Supreme Court as a giant controlling force over a much smaller and weaker legislature and executive. Unfortunately, Marbury mandates that we must ignore the Constitution and apply only the executive order. I take the position is was wrongly decided. Arnold: Constitution provides for judicial review. The greatest danger to our freedom is not the wayward acts of the Congress and president who are 100 percent accountable to the people, but the dictates of the justices of the Supreme Court, who have proceeded without accountability since 1803 and can serve with impunity for life. Bush presidential administrations who has offices in Lubbock, Amarillo and Midland, and Loewy is the George Killiam Professor of Law at Texas Tech School of Law.

My prior arguments detail why I believe the high court was dead wrong in granting itself powers that were never written into the Constitution. The court’s opinion, written by Chief Justice John Marshall, is considered one of the foundations of U.S. constitutional law. One further example: The state of Utah, controlled by a majority of Mormons, could make the Church of Jesus Christ of Latter Day Saints (Mormons) the established church of Utah. But all the court can do is declare a law unconstitutional that was enacted by another branch. It is in the words of Hamilton: "The least dangerous branch.

Now, this is a very dangerous argument as it would justify the right of the states and people to disobey any federal action, be it the Supreme Court, Congress or President who violates their fundamental rights. It doesn't exist. All rights reserved. So the larger issue is how do we reconcile the dominance of the Supreme Court via its power of judicial review and the checks and balances in the Constitution as it was written. The potential risk is not theoretical but has nightmarish implications and consequences. It lacks the military or the police power to enforce a law or even its own decision. The problem is that isn't true. Lubbock Avalanche-Journal ~ 710 Avenue J, Lubbock, TX 79401 ~ Do Not Sell My Personal Information ~ Cookie Policy ~ Do Not Sell My Personal Information ~ Privacy Policy ~ Terms Of Service ~ Your California Privacy Rights / Privacy Policy, Your California Privacy Rights / Privacy Policy. … The Constitution has erected no such single tribunal. Apparently because the court shouldn't have just taken the power that wasn't given them in the Constitution. ", Additionally, Article VI provides: "This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme Law of the Land...". My corroborative source is none other than Thomas Jefferson. The Founders had the opportunity to make clear these judicial powers and never delegated same to the Supreme Court. Consequently, this error that dates back to Marbury v. Madison in 1803 needs to be corrected to restore the balance between the three branches of government. Let's take the Japanese relocation cases that Mr. Moster used as an example in his first submission. The law of course violates the bill of attainder, ex-post-facto and free speech protections guaranteed by the Constitution, but none of that would matter. This week, Arnold Loewy and Charles Moster debate over the U.S. Supreme Court case Marbury v. Madison. "They cannot take on the prolixities of a legal code." Never mind that such laws are unconstitutional, in his world, the Supreme Court could not consider constitutionality. Professor Loewy's blanket reference to Article VI of the Constitution does not grant the Supreme Court the power to declare acts unconstitutional. He then proceeds to criticize the Court for not invalidating the executive order that imprisoned a large number of American citizens of Japanese ancestry. There were three dissents that unfortunately did not carry the day. Charles: Case gave Court dictatorial powers. ", Or, in the school segregation cases (Brown v. Board of Education), the opinion would have read: "This Court unanimously finds that segregated schools are unconstitutional. When Texas tries to prosecute Mr. Moster and me for writing "It's Debatable," it will rely on its newly enacted law. Now, Professor Loewy does raise some serious concerns as to how our world would look in the absence of judicial review, and it is not pretty. Finally, Thomas Jefferson's opposition to the court was substantially analogous to Barack Obama opposing judges who ruled against him on immigration issues. Marbury v. Madison, legal case in which, on February 24, 1803, the U.S. Supreme Court first declared an act of Congress unconstitutional, thus establishing the doctrine of judicial review. And we could have some fascinating conversations between building bird cages and license plates! All he says is that "Article VI does not grant the Supreme Court the power to declare acts unconstitutional.". In the first instance, the people would have a constitutional remedy by simply voting the rascals out of Congress or defeating the President at the next election. Marbury v. Madison short circuited the essential balance of power of the three branches and allowed the Supreme Court to define the scope of its own powers in contravention of the Constitution itself, which grants no such power to nine justices serving life terms without direct accountability to the people.

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