388 (1971), at once embodies both the supremacy of the right, in terms of both scope and remedy, against legislative diminishment and the province to construe the right, a province that, under Marbury v. The concept of a self‑executing constitutional right, most strongly enunciated in Bivens v. Therefore, any legislative action compromising the right – whether directly, such as by narrowing its scope as judicially construed, or indirectly, by constraining the judicially determined remedies by which it may be “enjoyed and protected” – intrudes on the province of the judiciary. Further, according to the Court’s prior decisions, “hen a provision is so complete, it may be enforced by the courts without the need of further legislative authority or direction.” Benson, 389 Md. The Court of Specials Appeals did not address the separation-of-powers issue – intentionally ignoring the issue, it would appear, for the Appellant’s brief expressly presented it, arguing that “the judiciary has reserved to itself the ability to determine what remedies, such as monetary damages, exist for self-executing constitutional claims” and that “the use of a statute, the LGTCA, to limit remedies for constitutional violations runs afoul of the supremacy of the state constitution, and the independent authority of the judiciary” Ĭonceptually, according to the Court of Appeals itself, a self-executing constitutional provision “supplies a sufficient rule by means of which the right given may be enjoyed and protected.” Benson v. In an analysis previously posted on this Blog, I argued that, assuming the LGTCA applied to tort claims for violations of the Maryland constitution, a matter of statutory construction confirmed by the Court of Special Appeals and the Court of Appeals, there also lurked in the controversy a significant issue of separation of powers, given the conceptual underpinnings for constitutionally based torts. 611 (2013), held “that the, where applicable limits the damages recoverable against a local government for violations of the state constitution.” Slip Op. In Espina, the Court of Appeals, in affirming the decision of the Court of Special Appeals in Espina v. That was the longstanding case, at least until the Court of Appeals’ recent decision in Espina v. To the extent it was not already recognized at the state and lower federal court levels, Marshall’s notion of judicial review quickly and firmly embedded itself in judicial power as perceived by this country’s state and federal courts, including the Maryland Court of Appeals. In the context of the heated controversy in which Marshall announced it, this collateral and seemingly unremarkable reasoning became the formal basis for the view that, in a constitutional government, the judiciary has the inherent and final power to say what the law is, including whether legislative or executive action is consistent with the government’s constitution. 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. This is of the very essence of judicial duty. So, if a law 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. If two laws conflict with each other, the Courts must decide on the operation of each. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. It is emphatically the province and duty of the Judicial Department to say what the law is. Marshall ruled that the Judiciary Act of 1789, under which Marbury had brought his action, unconstitutionally expanded the Court’s Article III original jurisdiction, observing as a seeming aside that Sidestepping a confrontation with the executive branch, however, Marshall held that Marbury’s petition was not within the Court’s jurisdiction and denied it. Supreme Court had jurisdiction to consider William Marbury’s petition to compel Secretary of State James Madison’s delivery of Marbury’s judicial commission by John Adams, Marshall’s opinion held that Madison’s withholding the commission was illegal. 137 (1803), Chief Justice John Marshall laid the cornerstone for this country’s view of judicial power, particularly as it relates to the powers of correspondent branches of government, in the case of the federal government, Congress and the President.
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