The US Constitution does(n't) worked as it was intended

As the title infers, the US Constitution does and doesn't work as it was intended. Set aside amendments and this is how the Constitution as it was finally written after numerous compromises and arguments (probably no two Founding Fathers had the exact same view)- the entire executive branch was written with the express idea that one man would be the first president, GW. The House and Senate were assumed to take Robert's Rules of Order (or some suitably close alternative, Jefferson's Manual was eventually written, and while it was intended for the Senate ended up being used by the House to this day and not considered authoritative by the Senate) and that as the Constitution states create their own officers. Party politics not having quite taken shape in these United States until GW was actually in office, it was not assumed there would be two opposing blocks and the one with the largest number would have the presiding officers.

The Vice President as the President of the Senate was assumed at the writing of the Constitution that he'd actually be "President of the Senate" and equivalent to the House's Speaker; John Adams' arrogance and Senator's contempt of him led the Senate to make the VP position basically honorary and the Senate never adopted Jefferson's Manual like the House did. Whereas House rules are adopted pretty much whole from one Congress to another at the beginning of the session, the Senate rules are more like "we choose to work today in the manner we did yesterday unless 50%+1 decides to change it".

The Constitution does not give the Supreme Court (SCOTUS) the right to declare a law unconstitutional. This was Marbury v Madison that SCOTUS decided "we don't want to rule on the case, but if we did, we can, and in the future we can declare any act of Congress or executive branch unconstitutional". The Constitution assumed that Congress would only pass laws that were Constitutional or else 50%+1 would not have voted; in the case that they did pass one that the President (the thought being that GW being an honorable man would only veto if he thought it was unconstitutional and not for political reasons!) would veto it; if GW got it wrong then of course the 75%+1 of each house would would of course be able to spot it and override the veto! Checks and balances. Just because each branch was separate and there were checks and balances did not mean that each branch could or should check and balance every other branch. Sequestration (impoundment), not in the Constitution, worked just fine until Richard Nixon used them for political reasons and not "fairly" as custom required, resulting in the Impoundment Control Act of 1974. It was always assumed that, especially the President and Senators, would be upstanding honorable capable men.

So, my WI is this- what if the VP was not John Adams, perhaps John Jay, the Senate adopts rules of order as the House does, the VP has Speaker-like powers, can't butterfly away political powers so the House looks the same but the Senate is more controlled (probably no filibustering now as one consequence). And the other change is that SCOTUS can not override Congress or the President (which is the biggest change).
 
The Constitution does not give the Supreme Court (SCOTUS) the right to declare a law unconstitutional. This was Marbury v Madison that SCOTUS decided “we don’t want to rule on the case, but if we did, we can, and in the future we can declare any act of Congress or executive branch unconstitutional”.

The more I read about MvM, the more I seem to want it repealed and everything since annulled...

And the other change is that SCOTUS can not override Congress or the President (which is the biggest change).

I’m actually surprised that this was even allowed at the time, given that it isn’t in the Constitution.
 
The more I read about MvM, the more I seem to want it repealed and everything since annulled...

I’m actually surprised that this was even allowed at the time, given that it isn’t in the Constitution.

It was politically expedient to allow SCOTUS to say it could, when it really hadn't in that instance. Then once they continued to do so, the public had already been brainwashed by populists about "checks and balances" and "equal three branches".

Jackson was once ordered by SCOTUS that the Trail of Tears was unconstitutional. His response was (paraphrasing) "Let me know when the Supreme Court has an army"; he knew SCOTUS couldn't do anything and unless Congress was going to impeach him over a SCOTUS decision he could do whatever he pleased. FDR's New Deal kept getting declared unconstitutional, so he threatened (paraphrasing)- "Constitution only says anything about a Chief Justice, beyond that there doesn't have to be any more judges or a limit on how many. So, I'll pack it with a bunch of new people to out vote you if you don't quit it!" and they backed down. Congress in the past two decades has variously, with differing amounts of reality, has threatened that they will remove the SCOTUS ability with an act of Congress. I do believe there are even certain laws Congress has enacted that specifically state that the Supreme Court has no jurisdiction over the validity of said law, though that may just have been proposed amendments to specific laws and there hasn't been a law that has been passed with that addition.

Basically each branch can and does only go as far as any other branch will allow it, which when we boil it down really is what the Founding Fathers intended. When people complain that the Federal govt doesnt get anything done... the Founding Fathers smile and nod their heads "Exactly".
 
So, my WI is this- what if the VP was not John Adams, perhaps John Jay, the Senate adopts rules of order as the House does, the VP has Speaker-like powers, can't butterfly away political powers so the House looks the same but the Senate is more controlled (probably no filibustering now as one consequence). And the other change is that SCOTUS can not override Congress or the President (which is the biggest change).

Two things. First, even with the Senate adopting the rules of order there's no reason they can't change their mind later, especially if the VP becomes a pain in the rear and tries to be too controlling. The rules of the House and Senate were always a convenience and tradition instead of ironclad and they'll almost certainly be changed if they feel the White House in interfering too much through the VP especially in early America where there was a lot more power behind the legislative branch than the executive. If the Senators think the VP is getting uppity they're going to back rule changes no matter party affiliation. EDIT: Napoleonrules said it right. The executive branch and the VP are only going to go as far as Congress and the Senate are willing to let them.

Second, why can't SCOTUS override Congress? As you pointed out the Constitution doesn't authorize it but it doesn't forbid it either. Even without Marbury v Madison case it seems almost certain the the issue of courts being the final arbiter of what is constitutional would arise pretty quickly and frankly I can't see the courts deciding that they don't have the power to do so (well one might but the next won't. It will come up eventually). So really the deciding point is whether Congress, after SCOTUS argues they have the final say on constitutional matters, is willing to pursue an amendment to say they can't. And since the power to edit the constitution still lies with Congress and the States to overrule SCOTUS I can't see them bothering too.
I've always felt that the Court's ability to declare laws unconstitutional was intended from the start but overtly including it in the constitution would have seemed too "oligarchical" to get people to adopt it. There's a hole in the constitution's wording shaped exactly like judicial review of constitutional matters.
 
Second, why can't SCOTUS override Congress? As you pointed out the Constitution doesn't authorize it but it doesn't forbid it either. Even without Marbury v Madison case it seems almost certain the the issue of courts being the final arbiter of what is constitutional would arise pretty quickly and frankly I can't see the courts deciding that they don't have the power to do so (well one might but the next won't. It will come up eventually). So really the deciding point is whether Congress, after SCOTUS argues they have the final say on constitutional matters, is willing to pursue an amendment to say they can't. And since the power to edit the constitution still lies with Congress and the States to overrule SCOTUS I can't see them bothering too.
I've always felt that the Court's ability to declare laws unconstitutional was intended from the start but overtly including it in the constitution would have seemed too "oligarchical" to get people to adopt it. There's a hole in the constitution's wording shaped exactly like judicial review of constitutional matters.
Exactly.

Despite the OP's contention that the Founders all assumed that politicians would be always honorable, that is simply not the case. The ONLY reason for all those checks and balances is to prevent the usurpation of power by one of the three branches. And what's the point of a Constitution, if there's no way to enforce it? Given the purposes of the SC (in some ways it's not really a court - it's a place where lower court rulings are tested), I think it's a pretty clear case that the SC is the body to do just that. You note that the Constitution doesn't provide any OTHER mechanism for enforcing constitutionality.
 
Exactly.

Despite the OP's contention that the Founders all assumed that politicians would be always honorable, that is simply not the case. The ONLY reason for all those checks and balances is to prevent the usurpation of power by one of the three branches. And what's the point of a Constitution, if there's no way to enforce it? Given the purposes of the SC (in some ways it's not really a court - it's a place where lower court rulings are tested), I think it's a pretty clear case that the SC is the body to do just that. You note that the Constitution doesn't provide any OTHER mechanism for enforcing constitutionality.

I did point out the TRUE mechanism for enforcing constitutionality- the Presidential veto. This idea that SCOTUS was intended from the beginning is not backed up by any evidence from the writings of any Founding Father prior or during the Convention nor by anything mentioned in the Federalist Papers by Hamilton and Madison (and Jay). The checks and balances is not to make each branch checked by another branch nor is it meant to make each branch equal. Until the 14th amendment even SCOTUS recognized they had no right to apply the US Constitution (including freedom of speech) upon the individual states because they were not given that explicit power.

And the fact is that the Constitution is abundantly clear multiple times that the entire Federal government does not have any powers not EXPLICITLY mentioned in the Constitution and those not mentioned are reserved only to the People or the individual states. This contradicts your "theory" that the Founders "intended" for SCOTUS to have this power without ever explicitly saying it, but then saying the Federal govt can't do anything not mentioned (The Founders were not unanimous on anything, you can't say "they meant" to do something when its just a cobbled collection of compromises anyway).
 
You want to annul Brown v. Board of Education?

I know the quote was not intended for me, but I'd like to state my PERSONAL beliefs on SCOTUS' ability for judicial review. While I know the historical background and disagree with SCOTUS' belief that they have the ability, I respect common law and tradition that has continued over for over 220 years. I believe there have been instances that SCOTUS made the wrong decision (Dred Scott for instance), but that overall judicial review makes good sense.

On the other hand though, Congress does have the right and ability to reign in SCOTUS at any point by simply passing a law (doesn't have to be a Constitutional Amendment) stating that SCOTUS does not have the right to review Congress, the President's executive orders, or even state laws. SCOTUS could cause a constitutional crisis by striking down such a law as unconstitutional pitting it against Congress (and I assume a President who signed it); but I doubt SCOTUS would take that action and I doubt even more that Congress would ever pass a law like that (though individual Republicans in Congress have stated the same thing, that a law and not an amendment to the Constitution is all that would be required, and that's the only time a Republican politician and I will ever agree!)

There's a difference in recognizing that a body politic has de jure right to do something versus a de facto right. I am concerned with an alternate history in which the Constitution was followed (at least originally) by de jure reading and SCOTUS never took the power. Though someone mentioned, correctly, that eventually they would have.
 
The more I read about MvM, the more I seem to want it repealed and everything since annulled...



I’m actually surprised that this was even allowed at the time, given that it isn’t in the Constitution.

(1) Judicial review was *not* the aspect of *Marbury v. Madison* that created the most controversy or got the most public attention at the time--it was the Court's scolding of Jefferson (while at the same time Marshall was careful to avoid a confrontation by holding that the Court had no power to issue a writ of mandamus).

(2) The Court had already implicitly assumed the power of reviewing the constitutionality of federal statutes in *Hylton v. US* in 1796. http://caselaw.findlaw.com/us-supreme-court/3/171.html (To be sure, there the tax on carriages was upheld as *not* being a direct tax--but the point is that the Court assumed that it had the power to determine whether it was constitutional or not.)

(3) One can endlessly argue whether judicial review of federal statutes was intended by the framers of the Constitution, but in support of the argument that it was, there are (a) Hamilton's defense of judicial review in Federalist No. 78 http://thomas.loc.gov/home/histdox/fed_78.html and (b) the fact that during the debate on the proposed Council of Revision, both Luther Martin and George Mason assumed that the judges did have the power, as judges, to pass on the constitutionality of laws. Martin, in opposing the Council, argued that judges had no special expertise on the *wisdom* of laws, and added "And as to the Constitutionality of laws, that point will come before the Judges in their proper [FN6] official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative." Mason, defending the idea of the Council, replied that judicial review was not enough because it extended only to the constitutionality of laws: judges "could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which [FN7] did not come plainly under this description, they would be under the necessity as Judges to give it a free course." http://avalon.law.yale.edu/18th_century/debates_721.asp

(James Wilson's defense of the Council is also sometimes cited as justifying the belief that the Framers intended judicial review. "The Judiciary ought to have an opportunity of remonstrating agst. projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these [FN2] characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature." But note that Wilson speaks of judges using judicial review to defend *their* constitutional rights, and he talks about how judges should have the power to oppose projected encroachments on the people *as well as on themselves.* This at least suggests a narrow view of judicial review, limited to nullifying unconstitutional laws which affect the judiciary itself. William Crosskey and others have argued that this was the *only* kind of judicial review of acts of Congress that the Constitution provided for. And the pre-1787 cases of state courts holding laws unconstitutional do seem to have involved such infringements on the judiciary, though in some cases the courts claimed a broader power of invalidating all unconstitutional laws. In any event, the debate on the Council of Revision seems to be the only time during the Convention itself when federal judicial review of acts of Congress was given much attention, though in the ratification process, Wilson and a few others made much broader claims for judicial review. One day I hope to get to a what-if about "what if judicial review *solely* for judicial self-defense"? [1] Here I just want to note how the "Council of Revision" debate raised the issue.)

[1] Note that *Marbury v. Madison* could have been justified on this ground, rather than on the basis of the broad general power of judicial review claimed by Marshall.
 
And the fact is that the Constitution is abundantly clear multiple times that the entire Federal government does not have any powers not EXPLICITLY mentioned in the Constitution and those not mentioned are reserved only to the People or the individual states. This contradicts your "theory" that the Founders "intended" for SCOTUS to have this power without ever explicitly saying it, but then saying the Federal govt can't do anything not mentioned (The Founders were not unanimous on anything, you can't say "they meant" to do something when its just a cobbled collection of compromises anyway).

You are correct about reserved powers. But regarding laws the three Branches were designed to have a specific areas of interest/authority: Congress passes legislation, the Executive enforces legislation, and the Courts interpret laws. Regardless of whether or not the Founders "Intended" the Supreme Court to be the final arbiter of Constitutional law, eventually a court case would reach the Supreme Course that required a ruling on constitutionality. Once that happens the precedent would be set...the US Supreme Court has the authority to laws with respect to their constitutionality and that this authority cannot be challenged except by rewriting laws or appointing judges who might interpret things differently. acts of congress
 
Exactly.

Despite the OP's contention that the Founders all assumed that politicians would be always honorable, that is simply not the case. The ONLY reason for all those checks and balances is to prevent the usurpation of power by one of the three branches. And what's the point of a Constitution, if there's no way to enforce it? Given the purposes of the SC (in some ways it's not really a court - it's a place where lower court rulings are tested), I think it's a pretty clear case that the SC is the body to do just that. You note that the Constitution doesn't provide any OTHER mechanism for enforcing constitutionality.

I think, considering the Federalists Papers exist, the idea that the Founder wanted the US Congress as the be all and end all is hard to support. Especially as they'd gotten to where they were by saying that lots of Acts that had been passed by Parliament and enacted by the Crown were illegal to to ineffable reasons.

You want to annul Brown v. Board of Education?

Now, no one ever wants to annul those decisions - they just propose things that would, and pat themselves on the back about how sternly noble they are.

(1) Judicial review was *not* the aspect of *Marbury v. Madison* that created the most controversy or got the most public attention at the time--it was the Court's scolding of Jefferson (while at the same time Marshall was careful to avoid a confrontation by holding that the Court had no power to issue a writ of mandamus).

(2) The Court had already implicitly assumed the power of reviewing the constitutionality of federal statutes in *Hylton v. US* in 1796. http://caselaw.findlaw.com/us-supreme-court/3/171.html (To be sure, there the tax on carriages was upheld as *not* being a direct tax--but the point is that the Court assumed that it had the power to determine whether it was constitutional or not.)

(3) One can endlessly argue whether judicial review of federal statutes was intended by the framers of the Constitution, but in support of the argument that it was, there are (a) Hamilton's defense of judicial review in Federalist No. 78 http://thomas.loc.gov/home/histdox/fed_78.html and (b) the fact that during the debate on the proposed Council of Revision, both Luther Martin and George Mason assumed that the judges did have the power, as judges, to pass on the constitutionality of laws. Martin, in opposing the Council, argued that judges had no special expertise on the *wisdom* of laws, and added "And as to the Constitutionality of laws, that point will come before the Judges in their proper [FN6] official character. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative." Mason, defending the idea of the Council, replied that judicial review was not enough because it extended only to the constitutionality of laws: judges "could declare an unconstitutional law void. But with regard to every law however unjust oppressive or pernicious, which [FN7] did not come plainly under this description, they would be under the necessity as Judges to give it a free course." http://avalon.law.yale.edu/18th_century/debates_721.asp

(James Wilson's defense of the Council is also sometimes cited as justifying the belief that the Framers intended judicial review. "The Judiciary ought to have an opportunity of remonstrating agst. projected encroachments on the people as well as on themselves. It had been said that the Judges, as expositors of the Laws would have an opportunity of defending their constitutional rights. There was weight in this observation; but this power of the Judges did not go far enough. Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet may not be so unconstitutional as to justify the Judges in refusing to give them effect. Let them have a share in the Revisionary power, and they will have an opportunity of taking notice of these [FN2] characters of a law, and of counteracting, by the weight of their opinions the improper views of the Legislature." But note that Wilson speaks of judges using judicial review to defend *their* constitutional rights, and he talks about how judges should have the power to oppose projected encroachments on the people *as well as on themselves.* This at least suggests a narrow view of judicial review, limited to nullifying unconstitutional laws which affect the judiciary itself. William Crosskey and others have argued that this was the *only* kind of judicial review of acts of Congress that the Constitution provided for. And the pre-1787 cases of state courts holding laws unconstitutional do seem to have involved such infringements on the judiciary, though in some cases the courts claimed a broader power of invalidating all unconstitutional laws. In any event, the debate on the Council of Revision seems to be the only time during the Convention itself when federal judicial review of acts of Congress was given much attention, though in the ratification process, Wilson and a few others made much broader claims for judicial review. One day I hope to get to a what-if about "what if judicial review *solely* for judicial self-defense"? [1] Here I just want to note how the "Council of Revision" debate raised the issue.)

[1] Note that *Marbury v. Madison* could have been justified on this ground, rather than on the basis of the broad general power of judicial review claimed by Marshall.

Not only are there plenty of supporting documents for the concept of judicial review from the Founding generation, there's also that one little fact. You know who's in a better position to know what was on the mind of the Founders, more even than Antonin Scalia waving his 1763 dictionary? John Marshall, the man who was appointed by one of them, wrote a biography of the other, and knew a bunch of the rest socially. It's the great slight of hand of American jurisprudence - judges from now saying what the Founders *really* meant. And you just ignore any decision of Marshall, who knew many of them personally, that runs contrary to what the originalist in question wants to see happen.
 
And the fact is that the Constitution is abundantly clear multiple times that the entire Federal government does not have any powers not EXPLICITLY mentioned in the Constitution

Articles of Confederation: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled."
http://avalon.law.yale.edu/18th_century/artconf.asp

Tenth Amendment to the US Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." http://avalon.law.yale.edu/18th_century/rights1.asp#10

Note that the Constitution , unlike the Articles, does *not* use the word "expressly." That omission was not an accident. See Madison's Federalist No. 44: "Had the convention taken the first method of adopting the second article of Confederation, it is evident that the new Congress would be continually exposed, as their predecessors have been, to the alternative of construing the term "EXPRESSLY'' with so much rigor, as to disarm the government of all real authority whatever, or with so much latitude as to destroy altogether the force of the restriction. It would be easy to show, if it were necessary, that no important power, delegated by the articles of Confederation, has been or can be executed by Congress, without recurring more or less to the doctrine of CONSTRUCTION or IMPLICATION. As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted." http://avalon.law.yale.edu/18th_century/fed44.asp
 
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