Saturday, March 21, 2015

Tying up the Constitution with Judicial knots

I get a headache when I try to follow the machinations of the Marbury v Madison Supreme Court decision. This decision has been justified as a logical extension of the separation of powers established by the U.S. Constitution. It is interesting that, like many Supreme Court decisions, the essential justifications must be teased out of the seemingly plain language of the Constitution itself. It is generally argued that, without the ultimate power of judicial review by the "Supremes", democracy in America would be doomed.
I look at this through the lens of early Federalist/Antifederalist disputes plus the ongoing elitist viewpoint that, despite the trumpeting of democracy, the rich founders of America felt the rabble could not be trusted to elect federal Senators or vote directly on important decisions. The true separation of powers was between the educated rich and the toiling masses and the masses came out with the gift of patriotic fervor while the rich came out with "a Republic if you can keep it" (Ben Franklin). Franklin was answering a commoner's question, "What type of government have you given us?" We didn't manage to keep it. For instance, how is it that the United States has been at war ever since WWII without a single Congressional declaration of war? Because the Supreme Court rules against a common sense interpretation of the Constitution in favor of intricate theories of what the founders truly "intended." My how short-sighted could they have been to allow so many strings left untied? Are we not told that the Congress was to tie up the loose ends and is it not true that, in reality the Supreme Court has tied up democracy with the knots of their decisions?

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