Changes

== "the Constitution" ==

== "the Constitution" ==

Justice Kennedy's reference to "the Constitution" is to the United States Constitution, which was written during the Constitutional Convention in Philadelphia during the hot summer of 1787, completed in September, and sent to the 13 states (former colonies) for ratification by at least 9 of them.  The "Federalist Papers" were written anonymously by Alexander Hamilton, James Madison and John Jay in order to persuade the people of the large state of New York to ratify (approve and adopt) the Constitution.  We now know which person authored which Federalist Paper (each one was published separately in a New York newspaper as the debate progressed), and James Madison is indicated in the above quote as being the author of the 51st Federalist Paper.

Justice Kennedy's reference to "the Constitution" is to the United States Constitution, which was written during the Constitutional Convention in Philadelphia during the hot summer of 1787, completed in September, and sent to the 13 States (former colonies) for ratification by at least 9 of them.  The "Federalist Papers" were written anonymously by Alexander Hamilton, James Madison and John Jay in order to persuade the people of the large state of New York to ratify (approve and adopt) the Constitution.  We now know which person authored which Federalist Paper (each one was published separately in a New York newspaper as the debate progressed), and James Madison is indicated in the above quote as being the author of the 51st Federalist Paper.

The Federalist Papers are important today for their usefulness in interpreting what the Constitution meant at the time (the "original meaning" of the Constitution).  Today "judicial activists" and "loose constructionists" think the Constitution should be given a different, expansive meaning based on today's culture, values and perceived needs, while "originalists", "textualists" and "strict constructionists" interpret the Constitution to mean the same today as it did when it was written in 1787 and ratified by 1788.

The Federalist Papers are important today for their usefulness in interpreting what the Constitution meant at the time (the "original meaning" of the Constitution).  Today "judicial activists" and "loose constructionists" think the Constitution should be given a different, expansive meaning based on today's culture, values and perceived needs, while "originalists", "textualists" and "strict constructionists" interpret the Constitution to mean the same today as it did when it was written in 1787 and ratified by 1788.

"Judicial review" is the doctrine implied by the U.S. Constitution that authorizes the federal courts (ultimately the U.S. Supreme Court) to review the constitutionality of a law passed by Congress and signed by the President, and for the federal courts to invalidate that law if the courts consider it to be unconstitutional.

"Judicial review" is the doctrine implied by the U.S. Constitution that authorizes the federal courts (ultimately the U.S. Supreme Court) to review the constitutionality of a law passed by Congress and signed by the President, and for the federal courts to invalidate that law if the courts consider it to be unconstitutional.

This power of judicial review was first asserted by the U.S. Supreme Court, then led by its Chief Justice John Marshall, in the famous case of ''Marbury v. Madison'' (1803).  ''Marbury v. Madison'' is the perhaps the most important decision ever issued by the U.S. Supreme Court, because it grabbed for itself the power to overrule what the other two branches decided to do.

This power of judicial review was first asserted by the U.S. Supreme Court, then led by its Chief Justice John Marshall, in the famous case of ''Marbury v. Madison'' (1803).  ''Marbury v. Madison'' is perhaps the most important decision ever issued by the U.S. Supreme Court, because it grabbed for itself the power to overrule what the other two branches decided to do.

Unusual, almost comical, facts led to this case.  After the bitter election of 1800, when John Adams lost his reelection to Thomas Jefferson, John Adams had a "lame duck" period of several months when he was still in power.  In the final moments of his lame duck period, he appointed an unusually large number of justices of peace (low-level, local judges) in the District of Columbia.  Their commissions (salaries) were approved by the U.S. Senate and signed with an official seal by President Adams, '''''but not delivered prior to Adams leaving his office of president'''''.  When Thomas Jefferson took office, he ordered his Secretary of State (James Madison) not to deliver the commissions, so the Adams-appointed justices of peace would not be paid.  Then Jefferson could use that money to pay the salaries of the people he would appoint to government positions.

Unusual, almost comical, facts led to this case.  After the bitter presidential election of 1800, when John Adams lost his reelection to Thomas Jefferson, John Adams had a "lame duck" period of several months when he was still in power.  In the final moments of his lame duck period, he appointed an unusually large number of justices of peace (low-level, local judges) in the District of Columbia.  Their commissions (salaries) were approved by the U.S. Senate and signed with an official seal by President Adams, '''''but not delivered prior to Adams leaving his office of president'''''.  When Thomas Jefferson took office, he ordered his Secretary of State (James Madison) not to deliver the commissions, so the Adams-appointed justices of peace would not be paid.  Then Jefferson could use that money to pay the salaries of the people he would appoint to government positions.

One of those judges, Marbury, sued Madison to obtain Marbury's commission.  The U.S. Supreme Court had to decide whether it would rule for Marbury (and Adams), or the new Jefferson Administration.

One of those newly appointed justices of the peace, Marbury, sued Madison in order to obtain the commission.  The U.S. Supreme Court had to decide whether it would rule for Marbury (and Adams), or the new Jefferson Administration.

Chief Justice John Marshall wrote the decision for the U.S. Supreme Court, and ruled for Jefferson (his Secretary of State Madison), so Jefferson was pleased.  But the basis of Marshall's decision was that the federal law which brought the case before the Court was unconstitutional.  In other words, the Supreme Court invalidated a law passed by Congress and signed by a president, in order to rule for Jefferson.  Jefferson could not complain much because he won, but the basis of the ruling made the Court more powerful than both Congress and the president by authorizing the Court to invalidate their laws.

Chief Justice John Marshall wrote the decision for the U.S. Supreme Court, and ruled for Jefferson (his Secretary of State Madison), so Jefferson was pleased.  But the basis of Marshall's decision was that the federal law which brought the case before the Court was unconstitutional.  In other words, the Supreme Court invalidated a law passed by Congress and signed by a president, in order to rule for Jefferson.  Jefferson could not complain much because he won, but the basis of the ruling made the Court more powerful than both Congress and the president by authorizing the Court to invalidate their laws.

Do not worry if you have trouble understanding the above.  All you need to know is this:  '''''In Marbury v. Madison, the U.S. Supreme Court gave itself the power of "judicial review," which is the power to declare as unconstitutional laws passed by Congress and signed by the president'''''.

Do not worry if you have trouble understanding the above.  All you need to know is this:  '''''In Marbury v. Madison, the U.S. Supreme Court gave itself the power of "judicial review," which is the power to declare as unconstitutional any laws passed by Congress and signed by the president'''''.

An everyday example is this.  Suppose Joe is choosing sides for basketball and he picks a player by saying, "I want you to be on my team ... because I want to hog the ball and I want lousy teammates who won't complain."  At first you might be happy you are picked, but before long you'll realize that you were picked by someone who wanted more power for himself.

Consider this analogy to what the Court did.  Suppose Joe chooses sides for basketball and picks a player.  Joe says, "I want you to be on my team ... because I want to hog the ball and I want lousy teammates who won't complain."  At first you might be happy you are picked, but before long you'll realize that you were picked by someone who wanted more power for himself.

Jefferson was not shy about applying a "check and balance" to the courts if he lost.  After all, it was Jefferson who supported the impeachment of U.S. Supreme Court Justice Samuel Chase by the U.S. House of Representatives, and unsuccessfully sought his removal by the U.S. Senate.

Jefferson would not have been shy about applying a "check and balance" to the courts if he had lost.  After all, it was Jefferson who sought the removal of Supreme Court Justice Samuel Chase through the impeachment process. But Jefferson's side won in ''Marbury v. Madison'', using reasoning Jefferson disliked.

== "federalism" ==

== "federalism" ==