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this post was submitted on 18 Jun 2024
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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?"