In 1803, Chief Justice of the Supreme Court John Marshall wrote "It is emphatically the province and duty of the Judicial Department to say what the law is." (Marbury v Madison, 5 US 137). With these words, Justice Marshall defined the judicial power as simply the competency to state how the texts various statutes incorporate into law.
fact: there is no part of the us constitution that tasks us judicial folks with interpreting laws regarding whether they are constitutional or not. us executive and us legislative folks went along with the judicial folks' claims because if judicial folks can declare something unconstitutional, they can also declare something constitutional.
Fact: Marshall’s thesis was that an act of the legislature repugnant to the Constitution was void. Which is to say that such an act is unconstitutional from the outset, and the Court’s ruling is merely the acknowledgement of what already is.
Fact: Article III, Section 2 expressly describes and circumscribes the judicial Power of the Supreme Court and all inferior Courts established by Congress.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
Moreover, the “judicial Power”, aka the “judiciary” was understood by definitions in use at the time of the Constitution’s drafting to mean courts of law:
That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government. An independent judiciary is the firmest bulwark of freedom.
And a “Justice” (e.g., the Chief Justice of the United States) was and is someone empowered to hold court and administer “justice”, which is done through “practical conformity to the laws.”
Finally, one cannot overlook that Article VI of the Constitution declares it unambiguously to be the supreme law of the land.
Which is how Marshall came to conclude that an act of the legislature contrary to the Constitution cannot stand and is automatically void.
The unconstitutionality of an act of a legislature (and consequent invalidity) is not an arbitrary declaration by the judicial Power but the inevitable consequence of its conflict with the strictures of the Constitution itself.
Peter Nayland Kust
Thank you for your response
fact: there is no part of the us constitution that tasks us judicial folks with interpreting laws regarding whether they are constitutional or not. us executive and us legislative folks went along with the judicial folks' claims because if judicial folks can declare something unconstitutional, they can also declare something constitutional.
Fact: Marshall’s thesis was that an act of the legislature repugnant to the Constitution was void. Which is to say that such an act is unconstitutional from the outset, and the Court’s ruling is merely the acknowledgement of what already is.
Fact: Article III, Section 2 expressly describes and circumscribes the judicial Power of the Supreme Court and all inferior Courts established by Congress.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority
Moreover, the “judicial Power”, aka the “judiciary” was understood by definitions in use at the time of the Constitution’s drafting to mean courts of law:
That branch of government which is concerned in the trial and determination of controversies between parties, and of criminal prosecutions; the system of courts of justice in a government. An independent judiciary is the firmest bulwark of freedom.
https://webstersdictionary1828.com/Dictionary/judiciary
Jurisprudence, then as now, was “the science of the law”
https://webstersdictionary1828.com/Dictionary/jurisprudence
Jurists were and are men knowledgeable in the law.
https://webstersdictionary1828.com/Dictionary/jurist
And a “Justice” (e.g., the Chief Justice of the United States) was and is someone empowered to hold court and administer “justice”, which is done through “practical conformity to the laws.”
https://webstersdictionary1828.com/Dictionary/justice
Finally, one cannot overlook that Article VI of the Constitution declares it unambiguously to be the supreme law of the land.
Which is how Marshall came to conclude that an act of the legislature contrary to the Constitution cannot stand and is automatically void.
The unconstitutionality of an act of a legislature (and consequent invalidity) is not an arbitrary declaration by the judicial Power but the inevitable consequence of its conflict with the strictures of the Constitution itself.