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.
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.
It’s the least worrisome because it can be abolished (selectively)
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.
If cooperation is not at least partially optional, then it’s not the weakest branch
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.
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.
The only Constitutional restriction on them is impeachment and removal,
… and constitutional amendment … a democratic process
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.
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”.
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:
Henceforth Congress can abridge the freedom of speech, or of the press; or the right of the people peaceably to assemble, and this law must be obeyed by judges regardless of what the First Amendment says
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.
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?
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.
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.
Orher countries, the ones that dont have one, obviously