Thom Hartmann spanked a couple of DU'ers today on his show -

[HiPointDem]

84. There is no explicit grant of power to strike down laws made by congress. Or states.

ex·plic·it/ikˈsplisit/
Adjective:
Stated clearly and in detail, leaving no room for confusion or doubt.

Explict would be: "The Supreme Court has the power to strike down state and federal laws it deems unconstitutional".

That is why there's an argument, and that's why even the founders argued about it.



Original Intent & Judicial Review

The Constitution does not expressly provide for judicial review. What should be made of this fact? Does it suggest that the framers did not intend to give the courts such a power? Not necessarily, although that is one explanation for its absence. It is also possible that the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. A third possibility is that the framers didn't think that the issue would ever come up, because Congress would never pass legislation outside of its enumerated powers.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/judicialrev.htm

Only 11 of the 55 delegates to the Constitutional Convention, according to Madison's notes, expressed an opinion on the desirability of judicial review. Of those that did so, nine generally supported the idea and two opposed.

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches." --Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force." --Thomas Jefferson to William Johnson, 1823. ME 15:451

"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best." --Thomas Jefferson to John Cartwright, 1824. ME 16:47

http://www.utahfreestate.us/Home/Thomas%20Jefferson%20Judicial%20Review.htm


I am arguing no point except that the constitution doesn't EXPLICITLY give the sc the right to strike down laws on the grounds that they're unconstitutional.

On edit: I will add though, that Marbury was reaching using that particular dispute, and the reason was intensely POLITICAL. That in itself tells me that the SC will be no bastion against any overreaching by Congress or anyone else. In the case that the POLITICS call for a new imposition of institutionalized segregation, the SC will find a way to support it in all likelihood.

The people themselves are the only real defense against tyranny, and even they generally do a piss-poor job of it.