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John Marshall Would Say Trump is Right

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Posted By: crusconnec, 5/4/2025 11:22:30 AM

All students of constitutional law recall the case of Marbury vs. Madison. In 1803, the Federalists had been successful in expanding central government powers, but in the 1800 election, Thomas Jefferson, a champion of states’ rights, was elected president and controlled both houses of Congress. [Snip] For years, it had been fiercely debated whether the Supreme Court had the “judicial power” under the young Constitution to declare laws enacted by Congress and the president to be “invalid.” Jefferson and the Democrat-Republicans argued that none of the three branches of government had any more say in the matter than the other two.[Snip]

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Reply 1 - Posted by: Sunhan65 5/4/2025 12:00:09 PM (No. 1945084)
This is a really useful article. Thanks for posting, OP. He gives a good summary of the issues at stake in Marbury versus Madison. Most important, he correctly points out that the power of judicial review--the power of the judiciary to review acts of Congress and subsequently acts of the executive for their constitutionality is based solely on legal precedent and the acquiescence of the other two branches. There is no foundation in the Constitution for the supreme court arrogating to itself the power of judicial review. However, he left out two things. First, Marshall got away with this because he denied that the supreme court had the power to issue a writ of mandamus against the executive by claiming that Congress can't grant his court that power through legislation. It was a smart play because by denying the court that power he gave the court the power over everything else. Subsequently, the court used judicial review to grant itself the power to issue writs of mandamus, and our judicial tyranny began. Second, there is a mechanism to address this. Congress created the current supreme court by a simple act of legislation. It can change both the court's composition and its jurisdiction by simple majority vote. This is not widely known by the general public, but it is in disputably true. The court has had different numbers of justices over the years, and it has had its jurisdiction limited and extended by congressional legislation. Congress should use the second item above to address the first. Explicitly define or limit the power of judicial rreviewas it relates to the current supreme court, or restructure the court so that it more accurately reflects the Constitution's original intent. Or both.
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Reply 2 - Posted by: mc squared 5/4/2025 12:57:50 PM (No. 1945111)
Thanks for posting.
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Reply 3 - Posted by: bpl40 5/4/2025 1:49:31 PM (No. 1945137)
The President is answerable ONLY to the Senate acting with 2/3 majority. And that acting (by the Seante) is possible only after a majority of the House agrees - not before. These provisions are not accidental, but the result of some remarkable foresight shown by the Founders. We should consider ourselves fortunate to be heirs and beneficiaries of such a construct.
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Reply 4 - Posted by: rememberwhen 5/4/2025 2:41:04 PM (No. 1945157)
Marshall's ruling on writs of mandamus should inform the current situation. If Congress cannot by law give the president powers not granted in the Constitution, judges should not be able to assume the right out of thin air to issue injunctions that limit powers granted to the president by the Constitution as chief executive.
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Posted by crusconnec 5/4/2025 11:22:30 AM Post Reply
All students of constitutional law recall the case of Marbury vs. Madison. In 1803, the Federalists had been successful in expanding central government powers, but in the 1800 election, Thomas Jefferson, a champion of states’ rights, was elected president and controlled both houses of Congress. [Snip] For years, it had been fiercely debated whether the Supreme Court had the “judicial power” under the young Constitution to declare laws enacted by Congress and the president to be “invalid.” Jefferson and the Democrat-Republicans argued that none of the three branches of government had any more say in the matter than the other two.[Snip]
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