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this post was submitted on 18 Jun 2024
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I think it's not that simple. In other countries, there is no written constitution or the constitution is merely aspirational, like our Declaration of Independence.
In the US, the Constitution is considered legally binding. The 13th Amendment doesn't discourage slavery, it prohibits it. And if you think the Constitution should be legally binding, then Marbury is inescapable.
What specific country are you referring to? It's hard to find one without a constitution.
https://en.wikipedia.org/wiki/List_of_national_constitutions
I don't believe anyone is disputing that the constitution is a legal document. Is that what you think Marbury is about?
Orher countries, the ones that dont have one, obviously
The UK, for starters.
Yes, the UK is an exception. Most countries have a codified constitution.
Yes, and most countries have judicial review.
A moment ago you didn't know that most countries have constitutions. Now you know all about judicial review?
What are you talking about?
Context is everything. OP wrote this:
And I responded that in those other countries, the constitution doesn't exist or is not the supreme law of the land.
Which is it? Most countries don't have a constitution, or most have judicial review?
Most countries have a constitution that acts as a supreme law and have judicial review.
As the OP suggested some countries don't have judicial review, but they either have no constitution or it is not the supreme law.
Sorry, I missed this part earlier:
In part, yes. But it's also a question of priority.
If Congress passed a law today that contradicted a law passed a hundred years ago, then the law passed today would replace the older law.
But what about the Constitution? Suppose Congress passed a law that said "Henceforth, Congress can make a law abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"
Can a new law replace the Constitution, just as it replaces other older laws?
If the answer is "no" then Marbury is inescapable. Because if a law cannot replace the Constitution, then courts cannot enforce laws that they believe would violate the Constitution.
Marbury is about judicial review.
It's interesting to see these kinds of ideas. Can't help but feel it's reactionary and superficially "anti-government" without looking at other deeper issues.
What is "law" without judicial enforcement? If you don't have constitutional law, then a big pile of power balancing is thrown out, so you have to make sure you want that. That the Court is by far the least democratic institution is pretty obvious (but to be fair, in a two-party system, I'm not sure how much "democracy" there really is to start off with). But it's also the least worrisome if you care about individual's rights/freedoms, which is part of the reason why it's special status makes sense: it relies entirely on cooperation from everyone else.
So, why abolish its power to enforce the constitution? Because it's unreliably politicised? Then I think that might be the underlying issue.
It's the least worrisome because it can be abolished (selectively). If cooperation is not at least partially optional, then it's not the weakest branch and they can be a council of judge-kings dictating how society runs with no recourse. The recourse is refusing cooperation.
I'd say it's because they don't command the police or military and are completely subject, without input, to the democratic levers of government including, not least, amending the constitution itself.
They sit completely under the constitution, and it itself is a democratic entity. If the amendment process doesn't feel democratic enough, well then we get the elephant in the room about how much democracy do you want and whether that's maybe your main problem.
What other branch is partially optional?
In the case of a court, they're role is passive. They only act when prompted by a party who brings a case. Legislators and the Executive do what they want when they want. So surely they're by the most optional. Honestly have no idea what you're trying to say here ... the point of governmental power and law is arguably not to be optional.
If the Supreme Court has the final and unreviewable power to decides what the law means, and their proclamations are simply followed without question by the Executive, then they're not optional in any way and they have ultimate power under our system of rules. Congress can make new rules that the Supreme Court can declare unconstitutional or twist to their viewpoints, the executive can take action that is then declared unconstitutional.
The only Constitutional restriction on them is impeachment and removal, but they're the people who decide how the Constitution works. And impeachment is basically an irrelevant fantasy. The actual check is what's not given to them. All they can do is publish words, which are supposed to be followed but which they don't have any actual power or money to force into being without cooperation. But if your not willing to consider that an executive might at some time be right in saying "no", then they are effectively all powerful.
That's the "optional" part. Requiring some dupe to bring a case is trivial, it doesn't make them optional, it's that their power can be vetoed by simply being ignored. And it's a power that needs to be held over them the further they stray into being an entirely political body.
... and constitutional amendment ... a democratic process
Then would the country have any option to being subject to the Executive's power to override the court? You sidestepped my most important question ... what kind of governmental power is ever "optional"? And I suspect that's because you haven't thought through what happens when you override one branch's power with another's.
Moreover, in highlighting how easy it is to ignore the court, you're strangely acknowledging my "least worrisome" point but then folding that into an argument that they should therefore be ignored by the executive ... because "they can" or "they might be right". Which only highlights the danger of this line of thought ... if one reads between the lines, it'd be fair to conclude that you favour the more powerful parts of government flexing their muscles. The danger being that there's no outline here of what happens next and whether there are then more or fewer "options" for the country. If the executive can just say "nah" ... what law is there? What constrains the government from its natural vice of abusing power, compared to a court that can only say somethings are not permitted?
Otherwise, if a politicised court is a concern (which I generally agree with and probably like you feel should be taken more seriously to the point that formally I actually endorse your arguments, just not substantively) ... I think there are various other things that can be done without throwing the baby out with the bath water. Unfortunately, I'd fear that the politicisation of the court, to the point that controlling it's makeup seems like half of the point in a presidential election, and the constitution (or its "hot topics") has gone too far for any side to be willing to "let go of the rope".
Yes.
And judicial review is nothing more than the assumption that the Constitution takes precedence over other laws.
Nope.
Ok, if a law contradicts the Constitution then should a judge follow the law or the Constitution?
The constitution in the US, like most countries, doesn't grant a judiciary ultimate power over interpreting its laws.
You didn't answer the question.
If a law contradicts the Constitution, should a judge follow the law or the Constitution?
If it helps, you may assume the law explicitly states that the judge should definitely follow the law, and ignore the Constitution. Let's take the previous example of a new law by Congress:
Ok, should a judge follow that or the First Amendment?
The judge will make a judgment that reflects their ideology. Whether that overrides the judgment of the people, congress, or another leader, is a political tug of war. One that the US constitution says nothing about.
Ok, yeah, judges abuse their power like everyone else.
The question is, what is a judge supposed to do if a law contradicts the Constitution?
If your answer is that the judge is supposed to follow the Constitution, even if it requires ignoring a new law, then you have just re-invented judicial review.
You’re missing the nuance of the cited case (Marbury v. Madison), in which the USSC effectively gave themselves the power of judicial review.
Judicial review isn’t explicitly in the constitution.
I agree that judicial review is nominally a good idea, but not under these circumstances, and not when the top of the judicial system is shamelessly and obviously biased to this degree.
Marbury decided that the Constitution takes precedence over acts of Congress. Judicial review is the logical corollary of that decision.
In other words, the only way to avoid judicial review would have been to decide that acts of Congress may override the Constitution.
…but by what authority did the SC declare in Marbury that the constitution takes precedence over acts of Congress?
I’m not just trying to be contrarian. I’m pointing out that the decision the court reached in Marbury provides the authority with which the court made their decision in Marbury. It’s a circular argument: “we have the authority to rule on this decision because we are ruling that the constitution gives us that authority”.
Judges have the authority to apply the law.
When two laws are in the books that happen to contradict each other - which they often do - judges need a method to determine which law to apply and which to ignore. They can't apply contradictory laws simultaneously. It's not some special authority. It's simple logic.
Nothing in the Constitution says "When a new law directly contradicts an older one, apply the newer one and ignore the older one." Judges could ignore the newer law, but they have wisely decided that in those circumstances they will ignore the older law.
Nothing in the Constitution says "When a law directly contradicts the Constitution, apply the Constitution and ignore the law." Nor does the Constitution say "When a law directly contradicts the Constitution, apply the law and ignore the Constitution." But judges must choose one or the other.
In other words, at times judges either must ignore the law or must ignore the Constitution. Again, this is not some special authority, it's simple logic. In those circumstances judges consistently choose to ignore the law.
"Judicial review" is nothing more than a judge ignoring a law. Because if they can't ignore that law, then they must ignore the Constitution. So what you're really asking is "Why are judges always required to obey the Constitution?" But that's the same as asking "Can anything give judges the power to ignore the Constitution?"
They made their decision, let them enforce it.
You have it backwards. The government cannot enforce laws without assistance from the judiciary.
For example, Congress once passed a law outlawing flag burning. The SCOTUS decided that was unconstitutional. But suppose everyone had decided to ignore that decision.
So someone is arrested for flag burning... and the case is immediately dismissed by a judge.
So the government decides to tax flag-burners instead. Someone refuses to pay that tax, the government sues ... and the case is immediately dismissed by a judge.
Pretty much everything the government does to "enforce" their will can be challenged, and challenges always end up before a judge. If the judge decides a law is unconstitutional, then the government will lose every case.
Ok, and? What makes you think they then get released from prison? Cause they just have to?
If the executive doesn't empower the judiciary, then no, everything cannot be challenged. You can assert your right to challenge an arrest before a judge however much you want, if your jailer says "nah", you don't get out of jail. The court is the veneer of slow and steady legitimacy validating the force of the executive, but rulings are just words, the thing that actually makes you have to listen to them is force.
This is, to be sure, a constitutional crisis likely to end with chaos. The real result would likely entail some sort of attempt to stand up a new "Supremer" court or decide that certain types of cases cannot be appealed or governors relying on their state courts and refusing to bend to a Supreme Court ruling they and their constituents don't agree with.
All your hypothetical scenarios require ignoring the Constitution, starting with habeas corpus.
One way or another, the only way to avoid judicial review is to set the Constitution aside. And sure, once that's done anything can happen.
Not a great pull of a quote there.
That's false for several if not most republics and constitutional monarchies (democracy but with national nepo babies on top).
Except for penal slavery. It explicitly allows the prison slavery that's common practice to this day. There's almost half as many legally enslaved people in the US today as there were in 1860.