SCOTUS doesn't have absolute authority over the constitution. In fact, it's power is so centralized that entire political administrations are decided by whether they get to pick a justice or not. The court was never given that much power. It gave itself that power. It never actually was given authority to overturn congress.
The court is obligated to respect the Constitution as the highest law of the land, and is therefore obligated to resolve any conflicts between legislation and Constitution in favor of the Constitution. So the Supreme Court has not just a right but a duty to nullify unconstitutional legislation.
The point that's overlooked is that duty is not uniquely the Supreme Court's. Every government employee in every branch is obligated to follow the Constitution and to reject laws which violate it.
There is a difference between nullification of the law, and a rejection of it.
Marbury v Madison doesn't tolerate the expansion of that right, it centralizes it into SCOTUS and makes it clear that only SCOTUS can both immediately force non-compliance with the law from every branch at it's decree and that it's assertion can only be overturned with a constitutional amendment, and that no other branch may challenge SCOTUS's interpretation of the law. It doesn't matter what congress said, thinks, or does, only SCOTUS has the authority to saw what the law is, even if the people who made the law disagree.
Here's the best part. Say you overturn a SCOTUS decision with a constitutional amendment. Guess who gets to decide that that constitutional amendment doesn't mean what you wrote down it meant? SCOTUS.
Marbury v Madison doesn't tolerate the expansion of that right, it centralizes it into SCOTUS and makes it clear that only SCOTUS can both immediately force non-compliance with the law from every branch at it's decree and that it's assertion can only be overturned with a constitutional amendment, and that no other branch may challenge SCOTUS's interpretation of the law.
Marshall argues unequivocally that testing laws against the Constitution is part of the responsibility of the courts, but nowhere does he say anything that would exclude other branches from the same duty- in fact, he explicitly asserts the opposite:
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument. (emphasis added)
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
Those agencies don't get to enforce the law outside of the court's opinion. That's his point. No agency gets to say that the law isn't the law. Only the court says what the law is. Only the court may decide if a law is repugnant to the constitution. That is the mechanisms that departments and agencies are bound by: the court's declaration on the state of the law.
I've read the decision, and I know the impact as well. No one may challenge SCOTUS without a constitutional amendment, and SCOTUS may interpret that amendment as it sees fit, which is exactly what Justice Marshall argued many times, and in that very opinion specifically said that only the judiciary can say what the law is. Not the people who wrote it, not the people who enforce, just the courts.
SCOTUS may then order and compel all courts, including state courts, and all federal agencies and entities, and all state agencies and entities, to operate in compliance with it's 5-4 ruling thanks to the Supremacy Clause as well.
Any agency or entity that is NOT in compliance with the court's decision is operating outside the law, because only the court can say what the law is, and no one else. The lower courts can't say it. The appellate courts can't say it. Only 5 people on SCOTUS, ever, can tell you what the law is. If one federal agency is operating outside of the court's decision, it is operating outside the law, and the other federal agencies must bring it to heel, either by coercion, removal, or by criminal charges. Whether or not you think this is what the decision says is kind of irrelevant, because that is how the decision has been handled since it was decided.
This is in direct contrast to the English common law system. It is a much more decentralized system that (before the invention of the Supreme Court of the United Kingdom under Tony Blair) didn't accept the arbitration of the God Kings of Law. Courts still had the ability to have judicial review at lower levels, and at appellate levels, and argued about whether or not the law violated ancient English rights and liberties. SCOTUK was made intentionally to end that, and operate as the God Kings of Law. They had their own Marbury v. Madison moment a few years ago when they made an identical decision to seize power by asserting that SCOTUK asserted it had the ability to rule on legislative procedures within the House of Commons, since the UK (infamously) has no Separation of Powers doctrine.
Their stunt was the same that Marshall pulled in 1803: give themselves the power of sole arbiter of the law by deciding what it is.
Luckily, the court doesn't have it's own private enforcement arm yet, and has to rely on the Executive branch to enforce most of it's orders. That doesn't mean they don't have any enforcement mechanism. SCOTUS spent decades basically purging the lower courts and State SC's of judiciaries who were arguing against Brown v. Board because they over-reached.
I'd say more like 100 years ago at least. Fabian Socialism came to power under Hoover for all intents and purposes. FDR turned the US into Democratic Socialism. I think many people loathe to admit it, but it was Kennedy who liberalized the US out of Socialism. LBJ put it back into "Social Democracy" territory where it stands today.
Hang on a second!
They're correct: hear me out.
SCOTUS doesn't have absolute authority over the constitution. In fact, it's power is so centralized that entire political administrations are decided by whether they get to pick a justice or not. The court was never given that much power. It gave itself that power. It never actually was given authority to overturn congress.
So...
Lets overturn Marbury v. Madison.
The court is obligated to respect the Constitution as the highest law of the land, and is therefore obligated to resolve any conflicts between legislation and Constitution in favor of the Constitution. So the Supreme Court has not just a right but a duty to nullify unconstitutional legislation.
The point that's overlooked is that duty is not uniquely the Supreme Court's. Every government employee in every branch is obligated to follow the Constitution and to reject laws which violate it.
There is a difference between nullification of the law, and a rejection of it.
Marbury v Madison doesn't tolerate the expansion of that right, it centralizes it into SCOTUS and makes it clear that only SCOTUS can both immediately force non-compliance with the law from every branch at it's decree and that it's assertion can only be overturned with a constitutional amendment, and that no other branch may challenge SCOTUS's interpretation of the law. It doesn't matter what congress said, thinks, or does, only SCOTUS has the authority to saw what the law is, even if the people who made the law disagree.
Here's the best part. Say you overturn a SCOTUS decision with a constitutional amendment. Guess who gets to decide that that constitutional amendment doesn't mean what you wrote down it meant? SCOTUS.
Marbury v Madison, is and was, unconstitutional.
It says no such thing. The decision is not long or hard to read, and I encourage you to read it yourself: https://www.archives.gov/milestone-documents/marbury-v-madison
Marshall argues unequivocally that testing laws against the Constitution is part of the responsibility of the courts, but nowhere does he say anything that would exclude other branches from the same duty- in fact, he explicitly asserts the opposite:
Bullshit:
Those agencies don't get to enforce the law outside of the court's opinion. That's his point. No agency gets to say that the law isn't the law. Only the court says what the law is. Only the court may decide if a law is repugnant to the constitution. That is the mechanisms that departments and agencies are bound by: the court's declaration on the state of the law.
I've read the decision, and I know the impact as well. No one may challenge SCOTUS without a constitutional amendment, and SCOTUS may interpret that amendment as it sees fit, which is exactly what Justice Marshall argued many times, and in that very opinion specifically said that only the judiciary can say what the law is. Not the people who wrote it, not the people who enforce, just the courts.
SCOTUS may then order and compel all courts, including state courts, and all federal agencies and entities, and all state agencies and entities, to operate in compliance with it's 5-4 ruling thanks to the Supremacy Clause as well.
Any agency or entity that is NOT in compliance with the court's decision is operating outside the law, because only the court can say what the law is, and no one else. The lower courts can't say it. The appellate courts can't say it. Only 5 people on SCOTUS, ever, can tell you what the law is. If one federal agency is operating outside of the court's decision, it is operating outside the law, and the other federal agencies must bring it to heel, either by coercion, removal, or by criminal charges. Whether or not you think this is what the decision says is kind of irrelevant, because that is how the decision has been handled since it was decided.
This is in direct contrast to the English common law system. It is a much more decentralized system that (before the invention of the Supreme Court of the United Kingdom under Tony Blair) didn't accept the arbitration of the God Kings of Law. Courts still had the ability to have judicial review at lower levels, and at appellate levels, and argued about whether or not the law violated ancient English rights and liberties. SCOTUK was made intentionally to end that, and operate as the God Kings of Law. They had their own Marbury v. Madison moment a few years ago when they made an identical decision to seize power by asserting that SCOTUK asserted it had the ability to rule on legislative procedures within the House of Commons, since the UK (infamously) has no Separation of Powers doctrine.
Their stunt was the same that Marshall pulled in 1803: give themselves the power of sole arbiter of the law by deciding what it is.
Luckily, the court doesn't have it's own private enforcement arm yet, and has to rely on the Executive branch to enforce most of it's orders. That doesn't mean they don't have any enforcement mechanism. SCOTUS spent decades basically purging the lower courts and State SC's of judiciaries who were arguing against Brown v. Board because they over-reached.
His last line is right though, they won a revolution about 50 years ago and don't talk about it. (except when convenient to pander to the base)
I'd say more like 100 years ago at least. Fabian Socialism came to power under Hoover for all intents and purposes. FDR turned the US into Democratic Socialism. I think many people loathe to admit it, but it was Kennedy who liberalized the US out of Socialism. LBJ put it back into "Social Democracy" territory where it stands today.