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John Marshall's Clarification of Judicial Duty

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 leg...

Posted by: Amy Hetzel

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