Читать книгу Keeping the Republic - Christine Barbour - Страница 85

This remarkable grant of the power to nullify legislation to what Hamilton called the “least dangerous” branch is not in the Constitution. In Federalist No. 78, however, Hamilton argued that it was consistent with the Constitution. In response to critics who objected that such a practice would place the unelected Court in a superior position to the elected representatives of the people, Hamilton wrote that, on the contrary, it raised the people, as authors of the Constitution, over the government as a whole. Thus judicial review enhanced democracy rather than diminished it.

In 1803 Marshall agreed. As the nation’s highest law, the Constitution sets the limits on what is acceptable legislation. As the interpreter of the Constitution, the Supreme Court must determine when laws fall outside those limits. It is interesting to note that this gigantic grant of power to the Court was made by the Court itself and remains unchallenged by the other branches. It is ironic that this sort of empire building, which the founders hoped to avoid, appears in the branch that they took the least care to safeguard. We return to Marbury v. Madison and judicial review in Chapter 9, on the court system.

Article III of the Constitution is very short. It says that the judicial power of the United States is to be “vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish,” and that judges serve as long as they demonstrate “good behavior.” It also explains that the Supreme Court has original jurisdiction in some types of cases and appellate jurisdiction in others. That is, in some cases the Supreme Court is the only court that can rule. Much more often, however, inferior courts try cases, but their rulings can be appealed to the Supreme Court. Article III provides for jury trials in all criminal cases except impeachment, and it defines the practice of and punishment for acts of treason. Because the Constitution is relatively silent on the role of the courts in America, that role has been left to Congress and, in some cases, the courts themselves to define.