The boundaries of authority that limit the role of judges to settling disputes is mandated by the construct of the Constitution.  Chief Justice John Roberts compares the role of the judges with the role of baseball umpires.  Baseball needs umpires to call balls and strikes, but umpires are never allowed to change the rules in the middle of the game.

The umpire illustration is consistent with the Federalist Papers.  They were written by Alexander Hamilton, James Madison and John Jay in 1787 and published to encourage the people in the states to ratify the Constitution.  Federalist Paper No. 78 described the judiciary as being the “least dangerous” and “weakest” of the three branches of government because it is the arbitrator of disputes:  “The judiciary… has no influence over either the sword [imposing the penalties advocated by the court] or the purse; no direction either of the strength or the wealth of society, and can take no active resolution whatever.  It may truly be said that to have neither force nor will but merely judgment; and must ultimately depend upon the aid of the executive arm for efficacy of its judgments.”

Defensive actions by one branch of government over another (separation of powers) is intended by the Constitution.  On occasion, the court may settle a dispute involving the other branches of government and law-making Representatives of the people may and should intervene and correct the Supreme Court.  Also, the administrative branch may challenge the courts to change a court’s mandate.  The American system is “a Republic–a federation, or combination, of central and state republics–under which: the different governments will control each other…  Within each republic there are two safeguarding features: (a) a division of powers, as well as (b) a system of checks and balances between separate departments [including the judiciary]: hence a double security arises [essential] to the rights of the people” (Federalist, No. 51, by James Madison).

Chief Justice Marshall in Marbury v. Madison stated:  “This original and supreme will [of the people] organizes the government, and assigns, to different departments, their respective powers.  It may either stop here; or establish certain limits not to be transcended by those departments.  The government of the United States is of the latter description.  The powers of the legislature [as well as the judiciary and the administrative] are defined, and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written.” The Marbury v. Madison decision was simply to settle a dispute. 

The original purpose of judicial review established by the Marbury v. Madison decision was certain NOT to empower judges to become unelected legislators or administrators.

~ David Norris

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