Alas, we still have Rick Santorum saying Obamacare is the same as what he calls "Romneycare"; the otherwise brilliant Mickey Kaus sniffing that if states can mandate insurance purchases, then we're "not talking about some basic individual liberty to not purchase stuff" (no, just the nation's founding document, which protects "basic individual liberties" by putting constraints on Congress); and the former law professor, Barack Obama, alleging that a "good example" of judicial activism would be the Supreme Court (in his...
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Traditional case law and statutory law are two very different things. I tend to view Supreme Court decisions as case law adjudication of specific disputes. Principle of precedence (according to case law principles) would be presumed to read on future challenges of the same nature. Read Madison v Marbury in this light leads to a very different interpretation. Debate over the constitution's content explicitly excluded rights of the Judiciary to over-rule the other branches. Such powers were discussed but not included. It is only a post-constitution perspective that permits the SCOTUS to presume such authority. I view the authority assumed from Marbury v Madison much more narrowly as normal case law (and Jefferson) would presume.
The reason tea partiers carried signs saying "Read the Constitution!" was that we were hoping people would read the Constitution.
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