The Supreme Court vs. the Constitution (Addendum)

I keep wanting to devote my time to activities other than my blog, but questions keep nagging at me, and question beget the search for answers, and once the research is done it behooves one to publish.  And so here we go again!

In Gerald Walpin’s book "The Supreme Court vs. the Constitution" at page 21, Walpin asserts:

“We start that analysis by making clear that the Constitution did delegate to the Supreme Court the duty to decide whether actions taken by legislatures and governmental executives are constitutional.”

But did it?

That was a question that immediately raised itself in my mind upon reading it. To be sure that power is unquestioned today. But that doesn’t make the assertion quoted above true. As one who studies American history assiduously, I recalled how unimportant the Court was considered to be in much of our history.

I remembered for instance that the Court had not received its own home until 1936. That until then, while the President lived and worked in the White House, and Congress had its own great chambers in the Capitol, the Court occupied various spaces in the United States Capitol building. See here. It simply was not considered important.

I remembered that the generally accepted wisdom was that there was no recognition of this power until it was asserted by Chief Justice Marshall in MARBURY v. MADISON, 5 U.S. 137 (1803) and then after asserting the power the court did not exercise it. In fact when the court handed down its infamous Dred Scott v. Sandford, 60 U.S. 393 (1857) decision that was the first time the Court had actually exercised that power, or to put it another way, the court had not attempted to assert that power for some 70 years.

This history, plus various reading of American history, which suggested that George Washington considered it his duty to judge constitutionality and that this would be the basis for most vetoes and other indications led me to the conclusion that this power was not intended to be given by the Constitution to the Court.

But as always, I wanted to confirm my impression, and so I went to the Federalist Papers, that extensive collection of essays written primarily by Hamilton and Madison as part of their successful attempt to sell the States on the merits of the Constitution. I expected to find corroboration that Walpin was wrong on that point as well.

Well, as I have always said, facts first. The facts showed me to be wrong. At the very least it was the opinion expressed in the Federalist Papers that that power had been given and had been intended to be given to the Court. Walpin was right on this point.

However, the founders assumed that the court would be held in check by the threat of impeachment if they overstepped. Yet in the history of the Court only one Justice has ever been impeached and none have ever been removed. See here.

For those who like to go to the original sources and want to read the relevent portions of the Federalist Papers, I refer them to here.

The point, however,  is that on this issue, my initial impression was wrong, and Walpin was right.