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.

Independent Agencies

The US has tens of different agencies that formulate policies and create regulations that have the power of law. This means, of course, that failure to comply with a given regulation can result in legal proceedings, a fine or even jail for not following them.

Independent agencies are a political tool, jointly used by the Congress and the President, to run from responsiblity. They can publicly say that "this or that agency made the decision to do this very uncomfortable and unpopular regulation" while they appoint members in the same agencies to make the decisions.

What is the problem

Article one of the Constitution defines legislative power that is given to Congress. And, following John Locke, this power cannot be further delegated since it was already delegated to Congress by the Sovereing, the People.

Any rule or regulation that has the power of law therefore must be somehow passed or accepted by the US Congress. Any such regulation, passed by any agency, is unconstitutional.

What is the solution

Abolish the notion of there even being anything "independent" in government. All power used by the government must be defined trough the Constitution, and that makes Congress, the President and Supreme Court ultimately responsible for what they do, and what their underlings do.

The President should be, by default, the head of any "independent agency", and can fire anyone he likes, and they can only make recommendations for regulations, which must be voted on by Congress.

You say this is political.

I say of course it is political, the US is a republic, where the government is accountable for their actions to the public, the voters, and the People.

The Pentagon Papers

The New York Times published in 1971 some materials from classified documents known as the Pentagon Papers, which analyzed the Vietnam War. The Nixon administration went to the Supreme Court with the case.

The holding was:

"To exercise prior restraint, the Government must show sufficient evidence that publication of the material would cause a "grave and irreparable" danger."

What is the problem

This holding means that, by default, any printing of classified documents by the press is legal, until the US government can show that damage has been done, and as such, the Supreme Court voided all national security laws regarding classified documents passed by Congress.

What is the solution

Strike down the Pentagon Papers ruling, because the government can sometimes have good cause to make documents Top Secret.