Marmor's Argument Analysis

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My main argument will be that legislatures have a high interest in perverting their interpretations of the constitution for political points, particularly in ways that favor majorities and harm minorities. While I think the greater possibility of biased constitutional interpretation by legislatures is harm enough, I add the point about minorities to reveal the potential damage of allowing partisan politicians to interpret a document meant “to declare principles that stand above every earthly power—the equality of each person…and the responsibility of government to secure the rights of all.”
Lawmakers, being democratically elected, have little to gain and much to lose by acting against the will of a majority of their constituents. Indeed,
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The argument’s premises are (1) that the Constitution protects only those rights that “reflect a deep level of moral consensus in the community,” (2) that the Constitution “is required in order to protect [these rights] from…short-sighted, momentary political temptations,” and (3) that the Court is free of these kind of populist pressures “precisely because [it] is not a democratic institution.” From these premises, it follows that constitutional rights are most secure when in the hands of courts. Again, this argument is nearly identical to the one I just made, although it adds the following implication of “moral consensus”: without a proper counterbalance to populism, the majority may tyrannize itself by uprooting the values it has already deemed worthy of constitutional protection. A simple example of such self-imposed tyranny (perhaps that is too strong a word) is in the passage of The PATRIOT Act in 2001. After terrorist attacks, an irrationally but understandably fearful majority of the country agreed to grant the federal government a previously unheard of power to search citizens’ phones and …show more content…
Indeed, there are several more arguments I would like to have made to defend my stance, but I think the arguments I have made in this paper are the ones that cut closest to the true danger of removing judicial supremacy. Essentially, my argument is this. We need an institution responsible to set the boundaries for the legislative playing field. It does not make sense for the legislature to be the one to set its own boundaries because it will pervert the playing field to favor itself, perhaps by shifting boundaries to favor constituent majorities or by making the boundaries optional so it can cease more power for itself. Instead, we should have an impartial court to referee the legislative game we collectively

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