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Marbury v Madison.

Kal'Stang

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Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.

Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?
 

Crovax

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Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.

Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?

So you theory is that it needs to exist so instead of creating an amendment we should just allow the court's the power to expand thier own power?
 

Kal'Stang

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So you theory is that it needs to exist so instead of creating an amendment we should just allow the court's the power to expand thier own power?

This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.
 

Crovax

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This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.

My mistake. No offense to your topic but I don't like to get involved in impossible hypotheticals. Judicial review isn't going away and if for some odd reason it did even in today's polarized environment it would still be relatively easy to pass an amendment for it. So I'll see my way out of the discussion not to derail it any further.
 

Captain Adverse

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Marbury v. Madison did not create the idea of judicial review.

That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.

However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.

All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.

Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.
 

haymarket

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Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.

Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?

This thread and your post is thought provoking. Could you explain the mechanics as to how exactly what you refer to as "we the people" would be able to do to get rid of the Supreme Courts two centuries old power of judicial review? How would that even come about?
 

Thoreau72

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I agree with Captain Adverse.

Article III mentions "the judicial power" and never defines it, suggesting that the founders understood the meaning of the term, and that the term included the concept of judicial review. If the judiciary has no power to review the written law, then what power does it have?

If we really are to have a tripartite government, what exactly is the third branch to do, if not review and judge the law, the legislative product?
 

Kal'Stang

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Marbury v. Madison did not create the idea of judicial review.

That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.

However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.

All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.

Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.

Yes I know. Even before the Marbury v Madison the courts were using Judicial Review. M v M is just the case that most non-scholars link it to.

But again, like I told Crovax, this thread is not about whether or not SCOTUS has the Constitutional power for judicial review or not. This thread is about what would happen if SCOTUS didn't have that power. Please speak to that.
 

Kal'Stang

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I agree with Captain Adverse.

Article III mentions "the judicial power" and never defines it, suggesting that the founders understood the meaning of the term, and that the term included the concept of judicial review. If the judiciary has no power to review the written law, then what power does it have?

If we really are to have a tripartite government, what exactly is the third branch to do, if not review and judge the law, the legislative product?

There are those that don't believe that SCOTUS has that power, that the Constitution doesn't talk about it so it doesn't have it. This thread is mainly for them. It's meant to get them to thinking what this country would actually be like without Judicial Review. I didn't make this thread about the Constitutionality of judicial review, I made the thread as a hypothetical thought provocation.
 

Kal'Stang

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This thread and your post is thought provoking. Could you explain the mechanics as to how exactly what you refer to as "we the people" would be able to do to get rid of the Supreme Courts two centuries old power of judicial review? How would that even come about?

Pick a legal way to do it. The Constitution does allow the legislature to simply legislate how the Judiciary can/cannot act. Or if you prefer we can make it an Amendment to the Constitution. How its done is not important for THIS thread. This thread is a hypothetical thought provocation for those that don't believe that the courts have the power of judicial review. It's to get them to wonder what this country would be like without it.
 

haymarket

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Pick a legal way to do it. The Constitution does allow the legislature to simply legislate how the Judiciary can/cannot act. Or if you prefer we can make it an Amendment to the Constitution. How its done is not important for THIS thread. This thread is a hypothetical thought provocation for those that don't believe that the courts have the power of judicial review. It's to get them to wonder what this country would be like without it.

Where is the public will to do what you advocate - regardless of the legal avenue you might pursue?

I see no practical or real world way to accomplish what you suggest. Do you?
 

Kal'Stang

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Where is the public will to do what you advocate - regardless of the legal avenue you might pursue?

I see no practical or real world way to accomplish what you suggest. Do you?

Did you not read my post? Here, let me highlight the relevant part to you...

This thread is a hypothetical thought provocation for those that don't believe that the courts have the power of judicial review. It's to get them to wonder what this country would be like without it.

And from post 3:

This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.

And from post 8:

But again, like I told Crovax, this thread is not about whether or not SCOTUS has the Constitutional power for judicial review or not. This thread is about what would happen if SCOTUS didn't have that power. Please speak to that.

And from post 9:

There are those that don't believe that SCOTUS has that power, that the Constitution doesn't talk about it so it doesn't have it. This thread is mainly for them. It's meant to get them to thinking what this country would actually be like without Judicial Review. I didn't make this thread about the Constitutionality of judicial review, I made the thread as a hypothetical thought provocation.

Now, if you're going to participate in the thread...Please speak to the topic of the thread. Stop attempting to derail the thread.
 

haymarket

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Did you not read my post? Here, let me highlight the relevant part to you...



And from post 3:



And from post 8:



And from post 9:



Now, if you're going to participate in the thread...Please speak to the topic of the thread. Stop attempting to derail the thread.

No offense to you or your thought provoking thread - but I am a realist and a pragmatist whose feet are firmly planted in the real world. The kind of approach you want to take is something I gave up in college when I left behind my days as someone staying up half the night as a sophmore to discuss hypotheticals and philosophy far far removed from the real world.

Good luck with your thread and I hope it works out well for you.
 

jet57

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Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.

Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?

Judicial review is the appellate process, which comes under Article III. Without it! Things would be a lot quieter.
 

danarhea

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Time and again many people have argued that the Courts granted themselves the power of Judicial Review in the case of Marbury v Madison and that they don't have the constitutional power to have judicial review and that we should ignore such rulings.

Let's say for just a moment that SCOTUS has no power of judicial review and we were to stop them from exercising such power.

What then? What do you think would happen if we were to strip that power from them permanently. What exactly would we the people be able to bring to bear that would stop laws that are obviously unconstitutional from being passed, particularly in an non-election year? And even during election years the same people that instituted laws that are unconstitutional are elected again and again, and when they retire the people that replace them are of the same opinion and refuse to work to get rid of them.

Examples of some laws that is reasonable to believe would be passed and enforced:


  • All schools must teach the Christian Bible.
  • Some States make laws stating that Marriage is only between a Man and a Woman.
  • Due Process is not needed to strip someone on the No Fly List of their Rights.
  • Bakers have the Right to refuse service in States that do allow SSM.
  • Abortion is a Murder in the First Degree Offense in some states.
  • Some states allow abortion no matter the reason and at any time, even up to the day before birth.
  • All guns banned.

Now I realize that some here would no doubt like some of these to actually happen. But I tried to put in examples from across both sides of the aisle and will stipulate that ALL of these are passed and no matter where you move to you're going to have to deal with one or more of these that you do not like and fully believe it is unconstitutional.

So...what do you do? Are you wishing that the courts had judicial review now?

Judicial review was inevitable, and Marbury was the perfect vehicle for it. In petitioning SCOTUS to issue a writ of mandamus, in order to force Madison to commission a Justice of the Peace for the District of Columbia, Marbury was asking the court to extend it's powers beyond that given in Article III of the Constitution. An Act of Congress, called the Judiciary Act of 1789, made it possible. Now here is the crux of Article III.

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

But Congress had enacted a law that violated the Constitution, Therefore, SCOTUS could not issue the writ of mandamus, thus putting SCOTUS in direct violation of the Judiciary Act. Had SCOTUS issued the writ, they would then have been in violation of the Constitution itself. Rather than break the law, as they were being asked to do, they extended their power, and declared the Judiciary Act unconstitutional. Legal scholars at that time, and ever since, have agreed with the decision. They only ones who don't agree with it are a few radical extremists, along with a lot of couch potatoes and armchair quarterbacks on internet bulletin boards and political forums.
 
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clownboy

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This thread isn't about whether the courts have a Constitutional power or not for judicial review. This thread is about what this country would be like if we stopped them from using it like they currently do. Please speak to that.

Sure, you'd also have to suppose Congress didn't exist and there was no Executive Branch either. Then you'd have to pretend there was no way to amend the Constitution. Why not just refer to the people who wrote and signed the original document? The principle writer was the Madison of Madison v Marbury. You do know that even though the SCOTUS handed Marbury the SOS seat he never got it, right? That's because every founder alive at that point said to the court - no, you do not have that grant of power.
 

clownboy

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Legal scholars at that time, and ever since, have agreed with the decision. They only ones who don't agree with it are a few radical extremists, along with a lot of couch potatoes and armchair quarterbacks on internet bulletin boards and political forums.

Except that's entirely false. Every single founder alive at the time of the decision opposed it. My god - it's in the freakin case title. The Madison of Madison v Marbury was the Father of the US Constitution and HE opposed the ruling. Thomas Jefferson, the president at the time, also a signer of the constitution - he said they did not have this grant of power. NO ONE but the court thought they did have the power at the time.

It's telling that their ruling was never honored. Marbury never got his seat.
 

danarhea

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Except that's entirely false. Every single founder alive at the time of the decision opposed it. My god - it's in the freakin case title. The Madison of Madison v Marbury was the Father of the US Constitution and HE opposed the ruling. Thomas Jefferson, the president at the time, also a signer of the constitution - he said they did not have this grant of power. NO ONE but the court thought they did have the power at the time.

It's telling that their ruling was never honored. Marbury never got his seat.

It's telling that you don't know what you are talking about. Marbury didn't get his seat because the Supreme Court refused to issue the writ of mandamus forcing Madison to appoint him, and in doing so found the Judiciary Act unconstitutional. That was never legally challenged, and no impeachment proceedings against SCOTUS were ever commenced, thus the SCOTUS ruling WAS honored.
 
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Nowhere in it does it say that the Supreme Court can strike down laws passed by Congress and signed by the President. Nowhere.
The U.S. constitution does not give the supreme court authority over Congress. The court created this rule themselves in 1803. (Marbury versus Madison .... 14 years after the Constitution was signed.)
"[T]he Supreme Court shall have appelate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
Yes, that's what the Constitution says - in plain black and white.
If Congress disagrees with - for example - the Citizens United decision, or the Bush v. Gore meeting - they can simply pass a law that says that the Supreme Court has overstepped its authority and that's the end of that.
Congress likes the "Royalty" of the Supreme Court and where the court gives the 1% all the power which they could not achieve at the ballot box.
Unequal Protection: The Court Takes the Presidency
"The Law" is nothing but an amorphous body of assertions made by jurists in previous cases to justify the decisions they favored.
Supreme Court decisions are made on the basis of what jurists call "controlling rules."
The Supreme Court?s ?Make Believe Law? | Global Research - Centre for Research on Globalization
Chief Justice Roberts was very involved with providing assistance to Jeb Bush and Katherine Harris in the Florida recount against Al Gore. He was one of the people slamming on the window in the election office demanding no recount as well.
Three years later, George Bush nomintated him to the Supreme Court.
Confirmation Path May Run Through Florida - latimes
For nine years between 1972 and the end of 1981, Chief Justice William Rehnquist consumed great quantities of the potent sedative-hypnotic Placidyl.
The standard dose for adults is 500 milligrams, taken at bedtime. Rehnquist was taking 1,500 milligrams a day.
One doctor said Rehnquist thought he heard voices outside his hospital room plotting against him and had "bizarre ideas and outrageous thoughts," including imagining "a CIA plot against him" and "seeming to see the design patterns on the hospital curtains change configuration."
Chief Justice Rehnquist's drug habit.
Sedative Withdrawal Made Rehnquist Delusional in '81
 

clownboy

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It's telling that you don't know what you are talking about. Marbury didn't get his seat because the Supreme Court refused to issue the writ of mandamus forcing Madison to appoint him, and in doing so found the Judiciary Act unconstitutional. That was never legally challenged, and no impeachment proceedings against SCOTUS were ever commenced, thus the SCOTUS ruling WAS honored.

Hilarious! You start by saying I am clueless then in the very next sentence prove you know nothing of the case yourself. :lamo

Jefferson was the President, not Madison. Madison was Jefferson's SOS, he wasn't responsible for appointing judges.

The court ruling was NOT honored. In fact Jefferson went out of his way to ensure the people knew it wasn't honored and would have no force. He outright threatened the court saying he had a standing army at his disposal. Again, every founder left alive at that point was on Jefferson's side here.

The court remained silent and just waited a generation, until everyone involved was dead, then pulled out the decision using it as a precedent.

I suggest you actually read the case before you comment further.

Look, Jefferson and Adams hated one another, political rivals to the max. When Jefferson won the Presidency Adams made a series of last minute judicial appointments (called Midnight Appointments) seeking to stack the judiciary with Adams loyalists (Marbury was one of those).

Madison (Jefferson's new SOS) refused to DELIVER those appointments that were purely Adams loyalists, Marbury's was one of those he didn't deliver. Jefferson appointed another to the seat Adams appointed Marbury to. And thus the case.

6."In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."

—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
 
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sangha

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Marbury v. Madison did not create the idea of judicial review.

That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.

However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.

All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.

Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.

Actually, prior to MvM, SCOTUS had exercised the power of judicial review several times. However, unlike MvM, the issue before the court in those instances involved state actions. MvM was novel because it asserted SCOTUS' power to overturn federal law.
 

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Marbury v. Madison did not create the idea of judicial review.

That idea is based on common law. Common law is "court-made" law, created when issues of civil or criminal justice are first introduced in a court and that court decides the right and wrong of them. This establishes a judicial precedent which other courts would usually, but not always, follow.

However, such decisions could also be appealed up to the highest level of justice in the land. That highest justice had the power to review the decisions and create binding precedent for all lower courts by their final ruling. This system created the common laws of the land.

All Marbury v. Madison did was establish this legal precedent in our form of Constitutional government, acknowledging that Congress rather than courts make law, but reserving the right of judicial review to the highest court in the land as to such laws Constitutional validity.

Had our Founders disagreed with this, they would have acted then to deny this principle of common law any application in our new system of Congressional law.

I remember a thread once arguing that we were not a common law country. So then why do we have judicial review?
 

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The Supreme Court, Jefferson would write, was working “like gravity by night and day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consoli*dated into one.”[

Marshall vs. Jefferson Then and Now - The Imaginative Conservative

Turns out he was absolutely right about this.
 

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Apart from the effect on laws being passed and what to do about them, there would be the related problem that interpretation of the constitution would necessarily have to go. It's also part of this judicial review, and inextricable from review of laws for constitutionality.

And if courts could not determine what the constitution meant because they don't have the power of judicial review, our justice system would break starting with the criminal law. Why? Well, take the simple case of Kyllo: is it a "search" under the fourth Amd. for the police to drive down the street with an infared scanner, looking for excessive heat coming from houses (specifically, for pot growing operations)? The Fourth Amendment doesn't say anything about infared radiation. It just talks about searches and probable cause. Judicial review is required to answer the question.

Well, if there's no judicial review, nobody could answer that question. So what do you do? Dismiss the case because you can't say whether it's a search or not? Say "**** it", throw the guy in jail, and step proudly on the path to tyranny?
 
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