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Reply #26


Response to thomhartmann (Original post)

Thu Mar 29, 2012, 11:48 PM

26. Marbury was a power grab

Marbury v. Madison was a great power grab on the part of John Marshall. That being said, it's been the norm for a long, long time, and it seems unlikely to be overturned by anyone.

If we're going nuts about what's actually in the constitution, though, what about the phrase "limited government?" Not in the constitution. This phrase only arises later as a normative description.

It also would have been good to mention the Federalists, of whom Jefferson was, I suppose, speaking when he wrote about county judges (who also, BTW, did have some executive function in those days, as there was no bureaucracy at any level to speak of). There's a great historical irony in that the Federalists, in their war of words with the antifederalists over ratification, dismissed the claims, similar to those you see referring to the SCOTUS ever since Bush v. Gore, that the Supreme Court would be an unchecked, potentially tyrannical and unnacountable body. Hamilton, writing in Federalist 78, famously described the judiciary as the least dangerous branch and listed the several reasons why this was the case. It is an irony of history that the Federalists, once they had been chastened by the voters, effectively retreated to the judicary, where they still held the most appointments, and it was the Federalist John Marshall who conducted the power grab that the anti-federalists had feared before ratification.

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