Sunday, March 20, 2005

Overturn Marbury v. Madison?

Abuse of judicial power is common. Judges routinely impose their personal political views on the law, particularly on the liberal side, resulting oftentimes in rule by judicial fiat. Now the Supreme Court finds that the United States Constitution is not sufficient and foreign law (and foreign dinner conversations) now must substitute.

Ben Shapiro at has an interesting idea, It's time to end judicial review;
Perhaps judicial review wasn't such a great idea after all. In Marbury v. Madison (1803), Supreme Court Chief Justice John Marshall assumed the power of judicial review over acts of the legislature. According to Marshall, the Constitution vested in the Supreme Court the ability to overturn legitimately enacted laws if those laws conflicted with the Constitution itself.

It is anything but clear that the Constitution meant to create the power of judicial review. Marshall's opinion is full of holes, both textual and logical. As Judge Learned Hand stated, Marshall's opinion "will not bear scrutiny." Professor Alexander Bickel of Yale University agreed in his work "The Least Dangerous Branch": "The opinion is very vulnerable."
He is aware that some may consider his thesis radical and acknowleges it;
No doubt this view will be called radical. But, as "Brutus" wrote, "when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to control them but with a high hand and an outstretched arm ."

No comments: