Saturday, May 07, 2005
Unclear on the concept:
[Todd Zywicki, May 6, 2005 at 12:42pm]
Interesting Alabama Supreme Court Opinion:
I just came across an interesting concurring opinion by Justice Parker from the Alabama Supreme Court from just a couple of days abo [sic]. Justice Parker's opinion begins as follows:
“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In these words, which enshrined the principle of judicial review, Chief Justice John Marshall noted that constitutional interpretation is emphatically the responsibility of the judiciary. He did not say that constitutional interpretation is exclusively the responsibility of the judiciary.
Justice Parker then goes on to argue that each of the branches of government have an independent obligation to interpret the constitution,
Absolutely right! Crucial, and too often overlooked. But here's where it goes horribly wrong:
and that as a result, the court should defer to a longstanding constitutional interpretation by the legislature:
This is a view sometimes advocated by the Chief Justice and Scalia. See e.g. McIntyre. I call this the "living constitution", in which the meaning of the constitution is not set by the authors, or the ratifiers, or the people of the time,
but evolves based on what people in government can get away with.
[Todd Zywicki, May 6, 2005 at 12:42pm]
Interesting Alabama Supreme Court Opinion:
I just came across an interesting concurring opinion by Justice Parker from the Alabama Supreme Court from just a couple of days abo [sic]. Justice Parker's opinion begins as follows:
“It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In these words, which enshrined the principle of judicial review, Chief Justice John Marshall noted that constitutional interpretation is emphatically the responsibility of the judiciary. He did not say that constitutional interpretation is exclusively the responsibility of the judiciary.
Justice Parker then goes on to argue that each of the branches of government have an independent obligation to interpret the constitution,
Absolutely right! Crucial, and too often overlooked. But here's where it goes horribly wrong:
and that as a result, the court should defer to a longstanding constitutional interpretation by the legislature:
This is a view sometimes advocated by the Chief Justice and Scalia. See e.g. McIntyre. I call this the "living constitution", in which the meaning of the constitution is not set by the authors, or the ratifiers, or the people of the time,
but evolves based on what people in government can get away with.
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