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• Wednesday, May 7, 2008 07:53 AM

  How long

  Before Marbury v. Madison 5 U.S. 137 (1803), gets turned on its head? Without judicial review where would we be?

  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.

  Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

  If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

  Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

  This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

  The three branches of the government should never have supremacy over any other branch- in fact, if anything, it is the executive which should have the least amount of power. This country was founded because there was a desperate need to get out from under the heavy foot of monarchy. No power was to be vested in one person. Have there been bad decisions by the judiciary? Of course. But that, in and of itself, is not a reason to limit their powers. (And I am of the opinion that most of these decisions that Republicans quote as evidence of "activist" judges are damn good ones- but then again, I live in Massachusetts- home of activist judges and gay marriage). And if they make a bad decision we have the means to correct it. Hopefully. Not that the legislature was able to do it recently (with the Lily Ledbetter Fair Pay Act). Massachusetts is a fine example. Did our Supreme Court allow gay marriage? Yes. Did our legislature and some citizens try to overturn said decision with legislation? Yes. Did it work? No. Check. Balance. Rinse. Lather. Repeat.

  —curse10 Read curse10's other letters
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