Biddle and Jackson deserved each other, but the country didn't. They represented a struggle between a ruthless elite and a downright vicious elite. It's kind of like how today the Republicans count on getting people to hate the Ph Ds so much they hand power to the MBAs, and the Democrats wish that people would object to the MBAs enough to hand power to the Ph Ds.

Everyone can name Dred Scott and Bush v Gore. Citizens United is bad, but doesn't necessarily sink to the same level: I was thinking of it as the "or three". No question Schenk was bad. I don't remember why it didn't make the same impression on me when I heard about it a while back.

I have to admit, I am fascinated by the separation of powers struggles in American history. Nicholas Biddle, writing to Henry Clay, said of Jackson's veto message it was "a manifesto of anarchy," but then he had a lot of skin in this game, since he was the Bank's president at the time.

Jackson was right, but American politicians aren't ever supposed to point this out, because it is a serious lack in the Constitution itself -- the checks and balances aren't always laid out with clear boundary lines. Marshall did stage a "coup" of sorts (I would call it a "massive power grab" myself), but it's one we've all sort of agreed to abide by ever since -- except when it comes out into the open as with Jackson's comment. The Constitution is indeed silent on most of where the power fault lines should be between the branches, except possibly for impeachment (and even that has left what "high crimes and misdemeanors" are supposed to cover wide open). These power struggles mostly play out between Executive and Legislative -- as when Bush ignored quite a few subpoenas from Congress for testimony -- leaving the question in limbo who was right and who was wrong. The War Powers Act of 1973 is another one that springs to mind -- neither branch has ever felt strongly enough about their position to test it in the courts. As I said, it's a fascinating subject because it never really gets resolved to anyone's satisfaction. Which is, in essence, what Jackson was saying.

dsws -

Yeah, Jackson was a character, alright. Don't forget the duels he fought -- he was of the "I demand satisfaction, Sir!" school of Southern gentleman (actually, at the time, he was considered a "Western" gentleman, due to KY and TN being considered the "West", but I digress). Oh, and if you're cataloguing his sins, don't forget the adultery and bigamy charges as well. Also, that bit about singlehandedly starting a war with Spain (and gaining Florida as a result). Heh. Or his first inaugural party....

But I would disagree on the "only two or three" SCOTUS cases which are truly infamous. There are a lot more than that -- starting with Schenck v. US

http://www.chrisweigant.com/2007/09/17/an-anti-war-march-schenck-v-united-states-and-free-speech/

Everyone knows the phrases "falsely shouting 'fire' in a theater" (the "crowded" was added later and is not in the original), and "clear and present danger" but few know the case both came from.

Depends on what you call "infamous" too -- one man's Citizens United is another man's Roe v. Wade, in other words. To say nothing of Bush v. Gore.

-CW

There's plenty of "check" on the Court. Congress can change the laws under which it decides cases. Congress can increase the size of the Court. Its members are appointed by the president, by and with the advice and consent of the Senate. It decides only individual cases, and has the capacity to handle only as many cases as its members can actually hear and deliberate on, in person. It has no bureaucracy, no police, no army, but has power only via its own legitimacy. Thus it faces a strong pressure not to take any action that would undermine that legitimacy. That is the strongest check faced by any branch.

There have been countless very bad laws and very bad decisions in the executive branch, but only two or three Supreme Court cases are truly infamous.

The founders explicitly denied the court enforcement powers. the Executive has the military, the Congress has the purse, the Court has only the strength of its arguments, its reputation for apolitical objectivity, and its public support. (All of which are exceedingly weakened by recent Court decisions.)

The Constitution did not give the court the right to "interpret the Constitution." It was expected that each branch of government would become corrupt in time. The hope that two branches acting in concert could compel the third, that the executive and legislative each have powerful, distinct, and yet mutually dependent means of enforcement while the court is uniquely largely immune to the vagaries of politics and public opinion but positioned to powerfully influence both would create a dynamic tension which would be self-limiting. No one ever thought the Supreme Court would somehow be magically immune to corruption. Unfortunately the rise in power of political parties and the willingness of politicians and voters alike to give allegiance to others before country and constitution effectively neutralize the intended "checks and balances" of all three branches on occasion.

The Courts traditional role interpreting the Constitution is a result of a Marshall Court constitutional coup not a Constitutional mandate. It has stood because the other two branches have largely declined to challenge Supreme Court decisions and the public too has accepted them; but while successfully challenging Supreme Court interpretations of the Constitution is exceptionally difficult, as it should be, the Court is not, in fact, the only branch for whom there is no constitutional "check." And while impeachment is the constitutional remedy against abuses by individual Justices its the Executive and Legislative branches who are the ultimate remedy against abuses by the Court itself, in conjunction with public opinion and each federal office-holders individual personal oath to uphold the U.S. Constitution not the edicts of the Court, the Presidency, or the Congress.

Each of the three branches of government derive their authority from the U.S. Constitution. If the Constitution is no longer controlling then none of the government has any "legal" authority; and while precedents may be binding as law as long as the court accepts them, the court has no authority to amend the Constitution through "precedents" or any other means; only the method explicitly outlined in the Constitution may amend the Constitution. That means the three branches of government are coequal and not subservient to the Court and its decisions, just as they were before the Marshall Court's constitutional coup.

On the one hand, I can see the point in that each third of the government must decide for themselves what the Constitution means to them..

On the other hand, if the three parts agree that the Judicial Branch is the "Keeper Of The Faith" and it's function is to interpret the Constitution for the other two branches, then there is an implied agreement that the other two branches will abide by the edicts of the Judicial Branch.

Fascinating debate...

Michale.....