Government Vs Constitution

1410 Words 6 Pages
1. According to the excerpts from Marshall 's ruling in Reading 9.1.1 and from Federalist No. 78 in Reading 9.1.2, if the Constitution says one thing and a law passed by Congress says another, the Constitution must give way. In the excerpt from Marbury v. Madison, 5 U.S. 137 (1803), the author argues that the powers of the legislature are “defined and limited”. Acts of Congress that conflict with the Constitution are not law, and the Courts are bound to give way to the Constitution. The Constitution, in his view, is either a superior and unchangeable law, or is “on a level” with ordinary legislation. He also notes that “in declaring what shall be the supreme law of the land, the constitution itself is first mentioned”, rather than the laws …show more content…
The frequency with which the Court strikes down acts of Congress has changed from the early nineteenth century to the early twenty-first century. The Supreme Court declared unconstitutional, in whole or in part, fourteen more acts of Congress between 1986 and the McConnell v. FEC decision in 2003 than between 1803 and 1899. The change undermines Hamilton’s prediction that the judiciary would be the weakest of the three departments of power because, in Federalist No. 78, Hamilton argued that while the Executive Branch holds “the sword of the community” and the Legislative Branch has the power of the purse, the “judiciary, on the contrary, has no influence over either the sword or the purse”. He also argues that the judiciary merely has the power of judgment, rather than force or will, and that the judiciary depends on the other two branches to support its judgments. However, when the Supreme Court makes a decision, this decision stands since it is deemed “the supreme law of the land”. In Marbury v. Madison, Marshall argued that it is a responsibility of the Supreme Court to overturn unconstitutional legislation in accordance to the judges’ “oath or affirmation” to uphold the Constitution, as described in Article VI. Although Hamilton argues that the judiciary is in “continual jeopardy of being overpowered, awed, or influenced” by the other two branches of government, with judicial review the Supreme Court can decide if a treaty violates the provisions of existing law or …show more content…
Jefferson’s first approach to constitutional interpretation is that each branch must decide for themselves the constitutionality of a law, “equally without appeal or control” from the other two branches. A branch is deemed the “rightful” expositor of the validity of the law, disregarding the opinions of the other branches. A strength of this is that each branch can interpret the Constitution for themselves and focus on how the Constitution relates to the interest they are focusing on. They are able to form stronger opinions, since they will not be second-guessing their opinions based on the input of the other branches. A disadvantage, as Jefferson points out, is that contradictory decisions may arise, which results in confusion and produces inconvenience. Another weakness is that the other branches may have positive insight to offer on a matter which the one branch could not see, therefore leading to negative and ineffective decisions. If a branch is judging themselves, they may not be able to clearly see the consequences, both positive and negative, of their actions. A branch may believe that their decision will be more politically effective than it actually would be. An outside view would be helpful to clearly define the potential outcomes of a

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