# Have people argued that the judicial branch is not co-equal with the executive and legislature? **URL:** \ **Category:** Great Debates\ **Created:** [November 22, 2018, 12:57am UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928 "2018-11-22T00:57:52Z")\ **Posts on this page:** 15\ **Page:** 2
**Author:** ![senoy](https://avatars.discourse-cdn.com/v4/letter/s/dbc845/32.png) [@senoy](https://boards.straightdope.com/u/senoy)\ **Post date:** [November 25, 2018, 2:48pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/21 "2018-11-25T14:48:43Z")
> [@Northern\_Piper](#): > > Don’t know what you mean about two writers weren’t very happy with it? Jefferson quite vocally hated the decision and felt the Constitutionality of legislation should be checked via the vote of the people getting rid of legislators. Madison was more ambivalent and recognized the principle behind a tribunal judging Constitutionality, but didn’t necessarily believe the Supreme Court was that tribunal. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [November 25, 2018, 3:13pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/22 "2018-11-25T15:13:54Z")
> [@senoy](#): > > Jefferson quite vocally hated the decision and felt the Constitutionality of legislation should be checked via the vote of the people getting rid of legislators. > > Madison was more ambivalent and recognized the principle behind a tribunal judging Constitutionality, but didn’t necessarily believe the Supreme Court was that tribunal. Note: Jefferson was \*not \*a principal framer of the constitution. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 25, 2018, 3:29pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/23 "2018-11-25T15:29:01Z")
Yes, he was off in Paris, not in Philadelphia. The Virginia constitution, which he had a hand in, was influential at Philadelphia, but he wasn’t a drafter of the Constitution. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 25, 2018, 3:34pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/24 "2018-11-25T15:34:02Z")
And Hamilton, who was at Philadelphia, wrote Federalist 78, which expressly states that the federal courts would have the power of judicial review: > **[Federalist No. 78](https://en.m.wikipedia.org/wiki/Federalist_No._78)** > > Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of The Federalist Papers. Like all of The Federalist papers, it was published under the pseudonym Publius. > Titled "The Judiciary Department", Federalist No. 78 was published May 28, 1788, and first appeared in a newspaper on June 14 of the same year. It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the first of six essays by Hamilton on this... ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 25, 2018, 5:45pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/25 "2018-11-25T17:45:24Z")
> [@md2000](#): > > I’m not sure I understand this. It may have been rooted in the British tradition, where parliament (and so congress) would be supreme, with no limitations on its power to make laws. But Britain has no written constitution, so any law can supersede any previous. Also, the USA is (and more prominently, was at the time freshly united) a collection of states, so the constitution enumerated the powers allowed the central government vs. state, at the very least. It would therefore seem to be a given that If a law exceeded the powers given to congress, the courts could remedy any aggrieved party. > > After all, what was the point of a constitution if congress could then run roughshod over state rights, passing any law it wanted? And, why wouldn’t the constitution give the same right to reign in congress to aggrieved citizens as it gave to states? Presumably that’s what the authors of the Bill of Rights expected? > > There’s not a whole lot of difference between “this law exceeds your constitutional powers, so every time you try to enforce it the courts will rule against you” and “this law exceeds your powers, so it shall be considered null and void.” I agree that Marbury is settled law. However, as an original matter, judicial review tends to upset checks and balances as it gives the Supreme Court outsized influence in the three branch structure. The only way to override a Supreme Court decision of constitutional magnitude is a constitutional amendment (very difficult) or impeachment (likely improper for a judicial decision and also very difficult). You mention that the UK does not have a written constitution, but there is no reason the judges there could not review Acts of Parliament under the unwritten constitution. It chooses not to because of the belief in Parliamentary Supremacy. It is very likely that the founders of this country believed in that concept as well, albeit with the legislative supremacy divided between the state and national spheres. The Constitution is simply silent on who is the final arbiter of constitutional decisions. Your analysis is on point, and it would seem to be a court’s duty not to apply or enforce a law it deems unconstitutional, but for practical purposes unless that Court uses its power very wisely and very reluctantly, we end up with a legislature of nine people serving life terms who are unelected. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 25, 2018, 5:50pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/26 "2018-11-25T17:50:26Z")
There’s an interesting, although old, article that thoroughly reviews Madison’s comments on judicial review: C. Perry Patterson, “James Madison and Judicial Review” (1939), 28 California Law Review 22. The author makes the following points: 1. It’s true that at the Constitutional Convention, Madison proposed a Council of Revision, composed of the executive and members of the judiciary, which could veto legislation proposed by Congress. However, the debate in this proposal made it clear that this was not in place of judicial review by the courts, but in addition to it. Ultimately, the Convention rejected the idea of the Council of Revision, which would almost have been a third legislative chamber, instead giving the president a veto. 2. In addition to the Council of Revision, Madison on more than one occasion referred to the courts having the power to determine cases where it was alleged that a law infringed the Constitution. He particularly mentioned laws that might violate the Ex post facto clause. 3. Also at the Convention, Madison argued that one of the reasons for ratification by popular conventions rather than the state legislatures was that ratification by the states would mean the Constitution was in the nature of a treaty between the states, which the states could subsequently infringe, based on their state sovereignty. By the principles of international law, courts would have to respect that political choice. But if ratification were done by the people, then the Constitution would be the Supreme law, and the courts established under the Constitution would have to prefer the Constitution to laws passed by the state governments and the other branches of the federal government. All of them would draw their power from, and be subordinate to, the Constitution established by the people. 4. In Federalist No. 39, Madison again repeated that the tribunal established as part of the federal government was to have the power to resolve all disputes concerning the boundaries between the federal and state governments: “The decision is to be impartially made, according to the rules of the Constitution…” 5. Finally, in a letter Madison wrote to Jefferson in 1823, he reviewed the different options to enforce the boundaries of the written Constitution and again stated that the Convention established the power of judicial review in the federal judiciary, and states that he has never deviated from that position in the past 35 years. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 25, 2018, 6:16pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/27 "2018-11-25T18:16:03Z")
Forgot to include the link to the article I was citing: [https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=3708&context=californialawreview](https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=3708&context=californialawreview) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 25, 2018, 7:03pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/28 "2018-11-25T19:03:06Z")
As I said, it seems very intuitive that when one is judging whether or not something is constitutional it would be done by people called “judges.” 🙂 But such a system gives the Judicial Branch nearly plenary authority over the Legislative Branch, the Executive Branch, and all Fifty States. Jefferson recognized this and was far more prescient than Madison in this area. At the time of the American Revolution, indeed for at least a century prior, England had moved away from the idea of common law courts making law and adopted the idea that the people through Parliament were supreme. Far from casting aside this idea, the framers of the Constitution wished for representation in this Parliament and complained of the King’s usurpation of its role. They did not demand judicial oversight. Madison’s support of judicial review was based upon the dual sovereignty of the U.S. system and not an advocation for the return of common law rule. See Scalia’s dissent in Rogers v. Tennessee for a nice discussion. [Rogers v. Tennessee - Wikipedia](https://en.wikipedia.org/wiki/Rogers_v._Tennessee) Madison’s view was also held under the belief that judges would discern what the law was and not what it should be based upon evolving concepts or a “living constitution.” Those ideas were completely foreign to 18th century thinkers. So, summary because I am watching football and typing, the idea (and I know that you are not making it) is that Roe v. Wade and Obergefell are completely cool because Madison supported judicial review is a completely false equivocation. The judicial review discussed in each are so far from each other as to be meaningless comparisons. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 25, 2018, 7:11pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/29 "2018-11-25T19:11:49Z")
> [@UltraVires](#): > > So, summary because I am watching football and typing, the idea (and I know that you are not making it) is that Roe v. Wade and Obergefell are completely cool because Madison supported judicial review is a completely false equivocation. The judicial review discussed in each are so far from each other as to be meaningless comparisons. It also summarizes how, in practice, all law is based on the unspoken assumption of a living Constitution and that assumption cannot be overturned or eliminated any more than Marbury v Madison. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 25, 2018, 7:21pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/30 "2018-11-25T19:21:42Z")
> [@Exapno\_Mapcase](#): > > It also summarizes how, in practice, all law is based on the unspoken assumption of a living Constitution and that assumption cannot be overturned or eliminated any more than Marbury v Madison. I’m not following. Why does my post mean that, say, “cruel and ununsual punishment” means what it did in 1787 and not in 2018? ---
**Author:** ![Hari\_Seldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hari_seldon/32/5173_2.png) [@Hari\_Seldon](https://boards.straightdope.com/u/Hari_Seldon)\ **Post date:** [November 26, 2018, 12:53am UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/31 "2018-11-26T00:53:05Z")
It seems to me that judicial review is implicit in the supremacy clause: > [@](#): > > This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Unfortunately, it does not say that federal judges are bound by this clause in the way state judges are, but who else would be in a position to decide whether an act of congress is “in pursuance thereof”? ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 26, 2018, 4:07am UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/32 "2018-11-26T04:07:37Z")
> [@UltraVires](#): > > I’m not following. Why does my post mean that, say, “cruel and ununsual punishment” means what it did in 1787 and not in 2018? Just the opposite. I’m saying that in practice that they are not and will not be the same. Anyone who argues that 1787 rules does so only ideologically. Even the Supreme Court, despite occasional ideological declarations, does not do so. Their Constitution is not a dead instrument but wriggles like an oscilloscope as the world changes. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [November 26, 2018, 9:58am UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/33 "2018-11-26T09:58:35Z")
The branches aren’t necessarily equal; they are simply independent of each other, thus making it difficult for one branch to concentrate too much power. The legislative branch and the executives are arguably the stronger branches than the judiciary in that the courts cannot make laws; they can only say what the laws are. In some countries, court decisions are ignored and regimes can tinker with the courts until they get the desired rulings. The tradition in the United States is that the legislative and executive branches respect the rulings of the court so as not to have the lawmaking and executive branches rubber stamping whatever laws and executive actions they propose. But this doesn’t mean that all branches are ‘equal’, just independent. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 26, 2018, 2:28pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/34 "2018-11-26T14:28:38Z")
> [@Hari\_Seldon](#): > > It seems to me that judicial review is implicit in the supremacy clause: > > Unfortunately, it does not say that federal judges are bound by this clause in the way state judges are, but who else would be in a position to decide whether an act of congress is “in pursuance thereof”? Marshall’s answer was the federal judiciary, under Article III, exercising the judicial power of the United States. ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [November 26, 2018, 4:08pm UTC](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928/35 "2018-11-26T16:08:53Z")
> [@asahi](#): > > But this doesn’t mean that all branches are ‘equal’, just independent. Right, the “equality” is really a matter of _not being subordinate_ to each other. Federalist 78 itself states the judiciary is expected to be “weaker” in the sense of depending on the others to abide by and enforce its decisions. [Previous page](https://boards.straightdope.com/t/have-people-argued-that-the-judicial-branch-is-not-co-equal-with-the-executive-and-legislature/824928.md?page=1)