The beginning of constitutional democracy as we know it - invented by a judge:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.That passage is one of the most moving descriptions of a free government I have ever read. I have to admit cheating as three was a very useful PBS show on the US Supreme Court a few weeks ago that helped illuminate the a US constitutional law text I bought at the University of Southern Maine last summer. So bear with me.This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.
But the bottom line is this. After a constitutional crisis in 1802 during which the Court was shut, it established it own role though this ruling. Our Canadian tradition of the role of the judge as overseer of the acts of the legislature is a direct descendant. Judicial review - comparing laws against the constitution without asking the permission of the legislature or executive - is one cornerstone of our freedoms and it was created by a judge sitting alone in an office with his pen and paper.
Comments
ry - February 16, 2007 12:31 AM
"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written."
This strikes me as a disctinctly Originalist/Constructionist sentiment, Al. Pasricularly when Marshall cites the Con as the limiter on why he cannot force Marbury's commission to be coughed up and the role of the judiciary. So I still would like how you get from this to living tree being the correct legal theory instead of being one of two or three competing legal theories; each with validity).
Judicial Review seems a bit stickier because I'm speaking vernacular and your speaking jargon. I'm not sure I can learn your jargon fast enough and I don't think you're really able to come down to vernacular. Not impasse, but a bump in the road this discussion is.
Alan - February 16, 2007 7:49 AM
Because he makes it up. The creation of originalism, if that is what happens, is through a living tree act. The Court created its own status through the application of judge-made law that no one now refutes.
ry - February 16, 2007 9:50 PM
ARgghhh. But he cites two very specific sections of the COn in his opinion. One pertaining to the powers of the President(that the outgoing President was within his powers to make the appointment) and the other about what the judiciary can do. Where is living tree in that? Article 3 section 2: "The judicial power shall extend to all Cases, in Law and Equity, arising under this COnstitution, the Laws of the United States, adn Treaties made, or which shall be made, under their authority--..."
Does this or does this not say what Marbury said? So is it accurate to say, 'Marshall made it up via living tree!" I don't think so. He referenced something. He didn't draw something from out of thin air. Look at the totality. Specific sections say what Congress can do. Others say there what the Judiciary can do. Marshall re-iterates both. Living Tree? I donna falla.
ALan - February 16, 2007 10:04 PM
You are showing your bias now. No one takes it from thin air. That is the point. There is no such thing as strict construction as it is all hat hanging on the weakness and opportunity of words and there is also no such thing as judicial activism as it is all based on the text.