As I recall, Aaron Burr was ACQUITTED… in a trial before Chief Justice Marshal, while riding circuit in the District of Columbia.. then again, perhaps you, like your nationalist hero Hamilton, are fond of Ad Hominum attacks and other unscrupulous personal slights… Perhaps.

“the aggressive 20th century presidents” who “started a trend of increasing executive power and federal gov’t” were able to use hamilton’s actions as a justification for it. the precedent had been set: they could argue they were merely expanding upon a long-standing accepted practice.

as the gent above brilliantly argued in post #49, “once power is usurped, even to end a great evil, the precedence is set for later repetition.” pandora’s box and all that.

Hamilton was correct for pushing a stronger federal government at the time. He was wrong for not supporting the Bill of Rights. He was correct to push to have the federal government take over the debts incurred by the states. His vision of the future is far closer to what exists than some utopian agrarian vision of Jefferson’s. The sheer volume of work done by Hamilton & the influence he wielded behind the scenes shows how important he was during the initial founding of the Republic.

Unfortunately, aggressive Presidents in the 20th century started a trend of increasing executive power & federal government that are crushing the average citizen now. I doubt Hamilton would be happy with the federal government as it exists now.

I’m aghast that on a libertarian site you didn’t include two of the most principled and influential expounders of libertarian principles, John Taylor of Caroline and John Randolph of Roanoke…guys who tried to hold Jefferson’s feet to the fire of his own stated principles.

As for the arguments that in the absence of the adoption (usurpation?) of extra-constitutional judicial power by the Supremes social progress would not have reached the pinnacle at which it currently resides… remember gentlemen, if we adopt the position that the Court, or for that matter, any other federal branch, can claim powers not granted them, subject only to their own final arbitration, we live not under law, but under the will of what is in this instance some sort of “nine-headed Caesar, giving thumbs-up or thumbs-down to whatever outcome, case by case, suits or offends its collective fancy.”

Those who advocate judicial review cannot logically differ in substance from those judicial activists who wish to mold society in their own image, for the question becomes, how elastic IS the Constitution… It is a fundamental principle of government that any government which is the ultimate arbiter of the limits of its own authority is no limited government, but rather, an unlimited, ultimately unchecked regime.

The problem with Hamiltonians and their “moderate constitutional construction” of judicial review is that ultimately the cure to federal overreaching can not logically come from within the federal government’s halls. CLibertarian constructionists who follow the example of Alexander Hamilton, to use the government to effectuate their own ends, including discovering judicial powers not written in the text will find their gains fleeting…

Consider Justice Scalia in Planned Parenthood v. Casey:

The Court’s statement that it is ‘tempting’ to acknowledge the authoritativeness of tradition in order to ‘cur[b] the discretion of federal judges,’ … is of course rhetoric rather than reality; no government official is ‘tempted’ to place restraints on his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify.’ The Court’s temptation is in the quite opposite and more natural direction – towards systematically eliminating checks upon its own power; and it succumbs.”

I submit that a true restoration of constitutionally limited government of old virtues and abandoned principles must come through the leadership of individuals not susceptible to purchase by the sirens of centralized power in Washington. Consider the words of George Washington in his Farewell Address speaking on principled construction of the Constitution:

“If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.”

Once power is usurped, even to end a great evil, the precedence is set for later repetition. Consider how Caesar used the violations of Sulla and Marius as precedence for his despotic actions… Consider well the warnings of the Virginians. Consider the question, if men are not competent to govern themselves, how can they govern others?

Seriously? Hamilton? 135 votes?

Confirm/Deny:
Billy Ocean’s enthralling 1985 hit Caribbean Queen was a musical dissertation on Alexander Hamilton’s whore mother.

The inherent problem with what you’re arguing is that the mighty will of the people isn’t always being done by the elected representatives. It’s something akin to a genie bottle. You may wish for something, and what you get may be a completely bastardized version of what you wished for. It may actually make things worse than they would have been had you not made a wish.

I haven’t seen anyone argue yet that we need the helpful guidance of 9 wise ones because we’d be lost without the knowing, firm hand. The argument has solely been that the legislative and executive branches make some incredibly stupid mistakes, some of those actually from the will of the people, and that the supreme court has been quite helpful in correcting some of those mistakes. Yes, they’ve made mistakes of their own, but on the whole, that’s to be expected since human beings are involved at every level of this. (See also: Every post with New Professionalism in the title on this site)
Sure, the supreme court has made some really awful decisions, but they have made some good ones.
I’d also suggest that at this point in our history, with Bush’s massive power grabs for the executive branch, it’s that much more important that there be some manner of checks and balances against him. The current congress and senate have shown themselves to be almost completely worthless in doing so. That pretty much leaves the supreme court as the only branch of the federal government that has actually stood up to him.
I honestly wish that weren’t the case, but alas, it is for now.

Personally, I’m not a big fan of the will of the people. I’m all about the freedom of the people and the liberty of the people. The will of the people just means the will of the majority. I have yet to see definitive proof that the majority is often right.

1) as opposed to the microbrained, foulmouthed, self-proclaimed “lawyer” above, your views – although wrong – are at least laid out well. reasonable people can disagree civilly, can we not?

2) still, for reasonable people *who are presumably libertarians, this being a libertarian blog*, i find your ringing defense of the reign of the courts to be fascinating. “the will of the people MUST be tempered, and if necessary overruled by, the 9 wise ones in faraway washington!” the analogy seems to me to be sheep being driven to slaughter, solemnly agreeing that their shepherd is there for their *protection*, and they’d be lost without his knowing, firm hand.

3) it would seem that government school propagandizing has done its job well. “an america in which the duly-elected representatives of the people pass laws without oversight and guidance from our almighty, all-powerful judges would be unthinkable!”

4) sam adams had a quote about that sort of thing….but you’d all insist i was taking it out of context.

allow me to quote from one of those great legal minds that hijacked the constitution, and made themselves our masters.

fuck YOU, pal. you and justice ginsberg with this revisionist, ‘living document’ bullshit.

Do you seriously not realize that judicial review ensures individual freedom far more than any other piece of the entire concept that is the Constitution? Nearly every moment where personal freedom has been enhanced and expanded in this country started with the supreme court making a decision way ahead of the overtly political branches.

You and Justice Scalia with this majoritarianism bullshit can go screw. Inter-racial marriage would be in its 3rd year of legalization if not for judicial review.

You’re comments about lawyers are remarkably ignorant as well, as though merley having a certain occupation and education makes you a nation destroyer (!). I’m a lawyer. I help people. I make sure the government does not oppress people and follows the law itself. Fuck You.

You deliberately misrepresented what I said. I said that the weight of scholarly evidence clearly supports the contention that Judicial Review was widely understood by the “Founding Fathers” to be part and parcel of the “Judicial Powers” of the Constitution. That is, scholarly surveys of WHAT THE FOUNDERS SAID about Judicial Review was that it was inherent in the phrase “Judicial Powers” . What I DID NOT say was that the weight of scholarly opinion “bless[es] the Marshal power grab.”

What the Founders said about Judicial Powers is a matter of historical record. On the other hand, “blessing” a decision requires normative decisions about constitutional theory and interpretation — which was outside of the scope of my claim.

In any case, I suggest you read Barnett’s article, which surveys the texts of the Constitutional Convention, State Ratification Conventions, and the immediate post-Ratification period to find dozens of contemporaneous statements indicating that virtually every participant that commented on the issue thought that Judicial Review was inherent in the “Judicial Powers” phrase.

As for dissenting statements by Thomas Jefferson – even if those statements are true and accurate, and were contemporaneous with the Ratification of the Constitution, we might simply chalk it up to a minority opinion that was clearly against the weight of contemporary thought.

But as it happens, the quote you cited was from 1820; over 30 years and a 2-term presidency after the Ratification. And again, as it happens, Barnett has a quote from Jefferson, contemporaneous with the Ratification, in which Jefferson acknowledges that Judicial Review is inherent in the “Judicial Powers” Clause. And, astoundingly, as it happens, Jefferson’s switch in position over the course of 3 decades happens to be pretty well known, and well documented in David Mayer’s book “The Constitutional Thought of Thomas Jefferson.”

So as they say – 3 strikes and you’re out.

Lincoln’s quote was not regarding John Marshall’s SCOTUS opinion. In fact, it was more in a reference to the Dred Scott decision which stated that the federal government could not regulate slavery in the territories. Lincoln said he respected the authority of the Supreme Court, but also recognized that laws can change, and would continue to fight for the law to be changed. The SCOTUS can hear similar cases and the Congress can still go over their heads through the amendment process.

But you know what? It really doesn’t matter what Lincoln thought – argument from authority is simply a logical fallacy. It matters what is right.

The Supreme Court process of judicial review, while not perfect, has definitely helped check the powers of the other branches of government. Yes, they’ve made some very bad decisions, but in general the courts have been the most sane branch. They are not “all powerful.” The courts were always meant to interpret the law, and interpret it they do. It’s illogical to say “the courts must interpret the law, but can’t actually do anything.”

“to consider judges as the ultimate arbiters of all constitutional questions (is) *a very dangerous doctrine indeed* and one which would place us under the despotism of an oligarchy.” he later added, “the constitution has erected no such single tribunal.”

why? because “with the corruption of time and party, its members would become despots.”

but hey! you’d EXPECT jefferson to buy into that “original meaning” nonsense, right?

here’s what abe lincoln said about it – presumably before he decided to run roughshod over the constitution: “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the supreme court….the people will have ceased to be their own rulers.”

oddly, that quote isn’t all that widely printed these days.

but perhaps that doesn’t matter, since – as you say – the “weight of scholarly opinion” seems to bless the marshall power grab. maybe we should kick it up to the supreme court: let *them* decide for us what to think.