White House preparing Executive Orders if HCR is struck down by Supreme Court

[Alcibiades]

32. The founders didn't actually do this

Unless you count John Marshall, who was certainly a founder, as a member of the constitutional convention, a soldier in Washington's army, the first supreme court chief justice, etc., but it was mainly he, and not, say, James Madison, who was responsible for the power grab of Marbury v. Madison. It's a historical irony that Madison himself wound up as a named litigant in this case, in that he could have precluded this power grab had he been more thoughtful in circumscribing the powers of the Suprem Court.

In Marbury v. Madison, John Marshall won for the court as chief justice power he could not have won for it had he argued for it at the constitutional convention. it was Hamilton, not Madison, who argued in Federalist 78 that the inherent checks on the judiciary made it the least dangerous branch, and yet I do think that we have reason to believe that Madison mainly agreed with Hamilton's argument, or we would have record of it.

Still, judicial review was not an unknown concept before Marbury, and we do have this, from Madison:

"In the State Constitutions & indeed in the Fedl. one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making their decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Dept paramount in fact to the Legislature, which was never intended, and can never be proper."

http://press-pubs.uchicago.edu/founders/print_documents/a1_7_2-3s12.html

Here we have the crux of our current problem: what to do when the supreme court interferes with the will of the people by undoing the results of the poilitical process, in this case the result of a decades-long policymaking process on health care. I think Madison himself was far too apt to look at the supreme court as a solution rather than a potential problem itself.

Of course, I'm sure you know most of this, if not all of it, as it's mainly stuff we all were taught in 9th grade civics. What I'm reacting to--and I do it myself at times--is the idea that the "founders did this" or "the founders intended such and such." In truth, the constitution itself is product of a committee, and was intended in its "final" form by no one, inasmuch as the founders themselves were often not of one mind about very much.

In this instance, though, they were just plain wrong, or, rather, the outcome of this complex historical process was wrong, because it effectively gave power over to John Marshall to establish constitutional doctrine for all time. Within their lifetimes, Jefferson and the other critics of a strong federal judiciary were proved right, and nothing has been done about it, and so the power grab of Marbury stands up to the present day.