Maybe someday I'll write a book on this, but I don't think enough people would care to make it work.
But the Constitution was flawed, in that nobody could be the final authority. That was perfect for the model of checks and balances, but it's no way to run a country, especially when nobody was the final authority as to what the Constitution requires and prohibits.
Our Founders were absolutely brilliant, but they didn't think this one through to its logical conclusion.
That's why the Supreme Court made a power grab in Marbury v. Madison to fix the flaw.
And frankly, it's the logical fix. Presumably, at least at the time, legal scholars who had read the Federalist Papers and had become learned in the law could make more informed decisions on how the Constitution should be applied than anyone in the other branches of government.
While briefly ignored at the time, Marbury has stood the test of time. We now leave the final decision on what the Constitution requires to the US Supreme Court. And it's worked fairly well. We are the most free country on the planet.
The downside to it is the decisions that we don't like, and I don't think I have to name them. Some are based on specious legal reasoning, and some are essentially based on something wholly imaginary.
We have to deal with those, while recognizing that the Supreme Court doesn't like to reverse itself at all. It's incredibly rare. Nibbling at the edges of previous decisions is they way it almost always chooses to go, until finally a previous decision topples under its own weight.
Sudden Supreme Court decisions almost never happen.
In any event, I'm more comfortable with the Supreme Court telling us what the Constitution requires than whatever jackass President might get elected. The Supreme Court respects past rulings, which means the Ship of State can only turn slowly. That's a good thing.
It was also a perfectly logical fix when Andrew Jackson said, "Mr. Marshall has made his decision, now let him enforce it."
"...notwithstanding this abstract view of the co-ordinate and independent right of the three departments to expound the Constitution, the Judicial department most familiarizes itself to the public attention as the expositor, by the order of its functions in relation to the other departments; and attracts most the public confidence by the composition of the tribunal.
It is the Judicial department in which questions of constitutionality, generally find their ultimate discussion and operative decision… "
There can be no final authority if the people are. That's not really a "flaw"- effectively the mob rules if their desires do not filter through the elected branches. I'm probably not being very clear- but there has to be a blank spot at the top for "the people".
"some are essentially based on something wholly imaginary. "
Yep, them's the ones I mean. They usually start off with a sentence like" "the Founders give us little guidance..."