Upholding The Will Of The Majority example essay topic

I am going to begin by attempting to simplify the argument for and against Marshall's proclamation that, "it is emphatically the province and duty of the judicial department to say what the law is", in order to, hopefully, get it straight in my own mind, and to start an analysis from both perspectives. As I believe it to be, the problem begins with the idea that since the judiciary is not an elected body, their ability to deem something unconstitutional (or constitutional for that matter) is counter-majoritarian (against the will of the people). This is so because when legislation occurs that is supposed to the will of the majority. For the judiciary to declare legislation unconstitutional would go against this. However, if the will of the people is the Constitution, than the court is, in fact, upholding the will of the majority. Therefore, the judicial branch is an agent of the people who are ensuring that the people's will is being exercised.

However, it is arguably legislation that is the true will of the people since it is more directly created by those who are elected by the majority. Hopefully this correctly states the situation. If I am reading Hamilton correctly, I believe that he thinks Marshall is correct in his statement "so long as the judiciary remains truly distinct". I think he believes judicial interpretation of the Constitution to be the most effective, "steady, upright and impartial" way to uphold the framer's intentions. Since the Justices are appointed for life, they are less swayed by politics.

Therefore, they are more likely to uphold what the Constitution mandates rather than what the current political majority deems appropriate at the time. Since Congress is generally representative of the majority, being re-elected so often, they would tend to interpret the Constitution in a manner consistent with the current majority's views. This would not provide "equal protection" under the laws since it would not provide adequate protection for minority interests. (Madisonian Federalist X argument - the majority is not always right) Brutus, on the other hand, completely disagrees. He feels that the judiciary has not been given the power by the Constitution to interpret it or to deem an act by another branch unconstitutional. Since Congress is directly elected by the people, the laws that they enact are the will of the people.

If the Constitution is to be held as the supreme law of the land, then the majority opinion, represented by Congress, ought to have the ability to decide conflicts of constitutionality - not the judiciary. Locke would have to agree, wholeheartedly, with Brutus. Power comes from the people and it is their will entirely that ought to prevail. Hobbes (while probably saying "who-ha" to the whole entire concept) might agree with some aspects of the Hamiltonian view, since power is coming from few rather than many. Those who have been granted power (by judicial appointment, however, not by God) are the ones who ought to retain the power. On the other hand, Hobbes may find himself swayed by Brutus's argument since he believes that "might makes right" and those who have the power to enforce their mandates are the ones with the power.

Since Congress may declare war, Hobbes may have to agree with Brutus. Although I am a bit hesitant is saying so, I believe that Marshall's statement is correct. While it may appear counter-majoritarian to have a few, non-elected justices declare the law, it is, as Hamilton points out, the only "impartial" way to administer the laws. Since the judiciary does not have the power to enforce their decisions, it is therefore the will of the majority (elected Congress) to uphold what the judiciary has decreed. This is counter-counter-majoritarian - the judiciary declares constitutionality and the legislator (the majority) remains in control of the enforcement. It would also be futile, in a sense, to allow Congress the ability to declare previous Congress's laws unconstitutional.

Entire sessions would be spent enacting laws that outlawed previously enacted law... and on... and on... In such a situation, the current majority would always control the interpretation of the Constitution and majority faction would be created. The will of the minority would never be protected. Based on this, I agree with Hamilton, and therefore, Marshall.