For the first time since 1990 I’ve just re-read Chief Justice John Marshall’s majority opinion in Marbury v. Madison (1803) for the first time since 1990. This sentence stands out:
The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten the constitution is written.
Note the implication: restraints on legislative power are antecedent to the written constitution. The writing of the constitutional text in which limits on the legislature’s power are explicitly spelled out does not itself create those limits. Those limits on the legislature’s power come from somewhere other than – something prior to – the process of writing the document.
...Regardless of whatever origins Marshall himself identified for these limitations on legislative power, this passage strongly suggests that there is a higher, more fundamental-than-text law on which any constitution worth its ink (or pixels) must be grounded. And although I am not learned enough to know whether or not John Marshall would agree me, I would go even further and say that, at the end of the day, law cannot be created ex nihilo; like so much else that makes our civilization possible, law is (to steal a phrase popular with Hayek) “the result of human action but not of human design.”
Law can be recorded in words (if only imperfectly). Law can sometimes be modified at its margins with words. And word-wielding legislation- or constitution-makers can, building on the law’s general principles, create specific institutions of government (such as bicameral legislatures, age-requirements for elected officials, and regular schedules for elections) – institutions that, if crafted wisely, are reasonably consistent with the evolved, unwritten, deep law. But again, law cannot be created ex nihilo - not even at Constitutional Conventions attended by the wisest and most learned men and women of the age.
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Originally Posted by midcan5
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