Greg Weiner at Law and Liberty: Bringing an End to Weak Sister Constitutionalism. From the introduction:
The particular genius of Marbury v. Madison was John Marshall’s act of jujitsu. President Jefferson wanted William Marbury kept off the federal bench and let it be known he would defy any Supreme Court order to the contrary, so Marshall delivered that outcome while seizing the larger prize of judicial review. Two centuries on, President Jefferson’s successor Donald Trump is reduced not to defying the Court but rather to tweeting ruefully that the judiciary’s consideration of his travel ban is “slow and political.”
Thus has Marshall won on both ends: Judicial review is entrenched, and judges no longer occupy the posture of constitutional weakness that necessitated the gymnastics in which Marshall engaged to give Jefferson his desired outcome while voiding Section 13 of the Judiciary Act of 1789. No President would dare defy a court order today, much less announce in advance of a case his intent to do so.
This is not a sign of constitutional health.
Further on, from the core of the argument:
The truly weak sister in all this is, as in most contemporary Constitutional matters, the legislature. What is unclear is whether Congress fears the other branches or hides behind them as convenient foils. Delegation to agencies allows Congress to claim credit for policy goals while complaining about policy implementation, while the assumption of judicial supremacy on constitutional questions enables legislators to vote for whatever is politically expedient on the assumption that, in the memorable formulation of the late U.S. Senator Arlen Specter, “the Court will clean it up.”
Compare this to the First Congress, which David P. Currie has called “a continuing constitutional convention.” To be sure, it had to be such in order to fill in the broad outlines of the framing document with governing details. But in early meetings of the legislature, constitutional debates were routine.
They should be again. But the separation of powers, as Publius envisions it, assumes, including with respect to constitutional meaning, that the branches will operate independently and not merely opportunistically—that is, that a Congress will not blindly defer to a President of its own party or vice versa.
In such circumstances, it is more conservative to ascertain the constitution’s meaning in this political, conversational way than by making the judiciary the last stop on the line. To empower the judiciary as the final arbiter of the Constitution’s meaning is to empower abstract reason at discrete moments in time. Burke, by contrast, wrote in the Reflections that “the science of jurisprudence” was “the collected reason of ages, combining the principles of original justice with the infinite variety of human concerns….”
Posted at 6:51 AM