If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.
What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!
SCOUTS hasn't had a real originalist in like 200 years.
So we should interpret it based on the things it doesn’t say?
Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants.
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Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.
To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter.
Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."
"Why, the very idea..."
Plus Marbury is too inside baseball for it to get reversed via constitutional amendment.
If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court.
Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.
You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?”
Conservatives will 100% take you up on overturning Marbury.
Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“
The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.
Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality.
Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.
Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.”
In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.
Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program.
> The authority to command the armed forces is directly under the executive
The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.
The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.