- Oct 2, 2019
- Reaction score
- Political Leaning
Agreed and the supreme court takes the same position in that they typically apply 3 different standards of review, with the most stringent "strict scrutiny" being applied when a law potentially infringes upon a "fundamental right" such as those contained in the bill of rights. Not sure that's exactly how the framers intended it to work, but then again, they didn't even specifically articulate that the supreme court would be the ultimate arbiter of what is or is not constitutional. That took Marbury v. Madison in 1803.
This is a completely recursive argument.
In Marbury v. Madison the court ruled the court gets to rule. If the court doesn’t get to rule we should ignore Marbury v. Madison as a judicial overreach. Certainly the case for judicial review could have been made clearer in the Constitution if that was always the intent. One wonders why it wasn’t.
That said, since many of the people who wrote the Constitution were still around at the time and didn’t seem to object too strenuously, I generally think most of the founders did view the court as a last bulwark against an overreaching Federal government exceeding it’s few defined powers. A task at which the USSC has clearly failed. However, I think they’d view a court that strikes down federal government overreach and preserves individual liberty materially differently than a court which substitutes its opinions for those of the elected branches of government by divining the presence of penumbras and emanations in the Constitution.