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Oh, you know Squawker, we went over this before too. You weren't able to refute the arguments about judicial fiats in this thread either.
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I was the last one to post in that thread, so I don’t see how I failed to do anything. The Marbury v. Madison case, was just a political p*ssing contest because the Republicans won the election. (Some things never change) The court
assumed new powers that were not entitled to them. In typical Republican style even then, the legislature didn’t fight it.
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Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.
The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since. |
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What Scalia said, was that it has to be in the constitution, for the courts to be allowed to rule on it. The constitution does not give a woman the right to kill her own child, therefore the court cannot decide that it is “unconstitutional”.