Thanks, I'll add that to my reference list of sources of extremest
right-wing drivel.
Marty
> Hopefully this exerpt isn't too 'dry' for you to follow, but read it
> carefully if you dare:
> --------------------
> AT THIS POINT, ONE might expect a discussion of how John Marshall in
> Marbury v. Madison declared the Court to be the final arbiter of the
> Constitution. Kramer, however, shows that this standard interpretation
> of Marbury is erroneous. At most, Marbury stands for the proposition
> that the Court may make reference the Constitution when deciding a
> case. In 1803, this was not a given. We must remember that in the
> British system only Parliament could make constitutional
> interpretations. Parliament was the ultimate sovereign and, to
> paraphrase Blackstone, could make or unmake any law as it saw fit. The
> Marbury Court simply recognized that because the people are the
> ultimate sovereigns in America, all three coordinate branches may refer
> to the people's fundamental law when carrying out their assigned
> constitutional duties. Had Marshall declared the Supreme Court to be
> the final arbiter, President Jefferson would likely have had him sent
> to the federal gaol.
> In essence, Marshall's Marbury opinion simply articulated the doctrine
> of "departmentalism" favored by the Jeffersonian Republicans.
> Departmentalist theory is perhaps best examined in the context of
> President Jefferson's approach to the Sedition Act. Upon entering
> office, Jefferson ordered the cessation of all federal sedition
> prosecutions and he pardoned those who had been convicted. In 1804,
> Jefferson received a letter from Abigail Adams criticizing his handling
> of the Sedition Act controversy. Mrs. Adams argued that because the
> judges had upheld the Sedition Act, President Jefferson had overstepped
> his constitutional bounds when terminating prosecutions and pardoning
> offenders.
> In a polite response, Jefferson reminded Mrs. Adams that "nothing in
> the constitution has given [the judges] the right to decide for the
> executive, more than the Executive to decide for them." Both branches,
> continued Jefferson, "are equally independent in the sphere assigned to
> them." Jefferson recognized that the judges, "believing the law
> constitutional, had a right to pass a sentence of fine and
> imprisonment, because that power was placed in their hands by the
> constitution." However, this did not bind him when performing his
> duties as chief executive. Because he believed the Sedition Act was
> unconstitutional, he "was bound to remit the execution of it."
> Jefferson, like Madison in his Report to the ***ia House of
> Delegates on the Sedition Act, denied that the judiciary was the final
> arbiter of the Constitution. To give any one "co-equal" branch such a
> power would make it "despotic." Of course, a final arbiter is needed if
> the branches cannot reach an accommodation on certain issues. And for
> Jefferson this ultimate power resided in the people of the several
> states -- the ultimate sovereigns in the American system. By using the
> ballot box or meeting in convention, the people would settle all
> disputed constitutional questions.
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