Question

If President Bush set forth in a memorandum to the state to discharge their duties through the ICJ, then does President Bush technically step outside the boundaries of his oath by upholding the laws of the Constitution?

This is not a question that is not easily resolved question. The Constitution itself does not resolve the question of Judicial Review. However, since Marbury v. Madison (1803), it has been generally accepted that that the power of Judicial Review belongs to the Judicial Branch.

Here is part of the decision from which the Supreme Court assumed authority of Judicial Review.

It is emphatically the province and duty of the judicial department [the judicial branch] to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law [e.g., a statute or treaty] be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law [e.g., the statute or treaty].
This doctrine would subvert the very foundation of all written constitutions. (Marbury v. Madison (1803))

Historically there are cases where the President refused to enforce the Supreme Court's decision such as with Andrew Jackson and the Indian Removal. As Jackson's famous quote goes: "John Marshall has made his decision. Now let him enforce it."

Send us your comments about issues in this newsletter.

Do you have a question regarding the Constitution?

Send us your question.

Would you like to contribute to the CACP Newsletter (GEMS)?
Click here to view requirements.

This is always a free subscription! We guarantee our subscription list is never shared with any third party. Ever!

Did you miss an issue of Gems. Find it at CACP.info
To unsubscribe click here.

To contact webmaster.

Select from menu for CACP page.