US Constitutional Law

Marbury v Madison

US Supreme Court decision in Marbury v Madison (1803) provided a precedent that the Supreme Court can strike down laws passed by Congress on the basis that they are unconstitutional.

This is perhaps the most influential decision in the history of US constitutional law, and it is actually flawed, in a very subtle way.

What is true

The US Constitution is the highest law of the land, and it supercedes laws passed by Congress. Laws can be struck down on the basis of being against the US Constitution.

What is the problem

The US Constitution does not say who has the final say over that the Constitution actually means, or in other words, who has the power to interpret the Constitution.

For example, the Roman Catholic Church has declared the Pope and his fellow bishops are the only ones who can correctly interpret the Bible, which means they have the monopoly on formulating church doctrine.

The Supreme Court has declared that they have the power to interpret what the Constitution actually means. And, by legal drift, other branches have accepted the tradition that the US Supreme Court is the only branch that can do this. This means, that the Supreme Court has the final say over what the Constitution actually means.

This has no basis on the Constitution itself. The Constitution does not say who has the power to interpret its contents.

What is the solution

The article one defines legislative power, given to Congress.

The article two defines executive power, given to the President.

The article three defines judicial power and the responsibilities of the Supreme Court.

The articles are written in order of importance, and hence, claim to legal power. Here is what should actually happen.

Congress makes laws, in good faith, we at least pretend they know what they are doing and are faithful to the Constitution.

Supreme Court reviews, and gives an opinion, when they think Congress has made a mistake. So far as before.

The President can correct and strike down a Supreme Court opinion.

Congress can impeach the President, if he is acting in bad faith, and not defending the Constitution. The last word then actually stands with Congress on how to interpret the US Constitution.