The Supreme Court: Myth and Reality

The Supreme Court: Myth and Reality

The Supreme Court: Myth and Reality

The Supreme Court: Myth and Reality

Synopsis

"Whether you agree or disagree with our distinguished author, he has produced a scholarly work which deserves the attention of all who are interested in the Supreme Court." - Loyola Law Review

Excerpt

We are so accustomed to thinking of the Constitution as law that we forget that first and foremost it is a political document. The creation of a government is a political act. The Constitution specifies the structure, organization, and many of the processes of the various branches of the government, and it sets forth the powers of the national government and limitations on the powers of both national and state governments. A critical question before the framers in 1787 was how to enforce the Constitution, both its powers and its limitations. Most governments throughout history have enforced their powers through a police state, which means that there are no limitations on power. Such an alternative was never considered by the framers. James Madison thought the greatest threat to the Constitution would come from the state governments. (He was right.) Accordingly, he advocated that national supremacy be protected by a device called the congressional negative, which meant that all state laws would routinely be subject to approval or veto by Congress -- a breathtaking conception, then and now. The method finally chosen by the framers was judicial enforcement through the normal processes of litigation and adjudication. Hence the intentional parallelism between Article VI, which states that the Constitution, laws, and treaties of the United States . . .

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