I am perfectly willing to consider the argument that Flast was wrongly decided and taxpayers qua taxpayers shouldn't have the right to go into court to challenge any expenditure they don't like.

But Dellinger's argument that the reason for this is because the other branches should have a coequal or similar authority to interpret the Constitution as the judiciary is a very bad argument. He is a former Justice Department official, and of course, institutionally, the Justice Department tends to favor its own power to interpret the Constitution. Nonetheless, the problem is that this presents a slippery slope to all sorts of bad consequences, including Executive officials feeling they have the right to disobey judicial interpretations of the Constitution as well as laws of Congress that they don't agree with-- even if the President signed those laws rather than vetoing them!

The Bush Administration has effectively demonstrated these problems to a greater extent than could ever be imagined. Attempts are made to rely on standing and jurisdiction doctrines to keep matters out of court, and then the Executive Branch comes up with completely unreasonable and ridiculous interpretations of the law that are insulated from challenge. Signing statements are used to neuter statutes that are signed into law by the President.

Chief Justice Marshall in Marbury v. Madison had it right. It is entirely the province of the judiciary to say what the law is. Any other approach leads to a potential dictatorship.

I don't think the slippery slope is as slippery as you describe it. THe question isn't who has the "ultimate" say in the interpretation of the Constitution.. if the Executive and the Court disagree on the reading of a statute even the Court's interpretation wins out, in the context of a case or controversy. The same goes for the Constitution.

The Executive or Legislative Branches can't ignore the Court's interpretation (or they haven't been blatant about it in a while). But we can't allow the Courts to be able to decide any constitutional question whenever they want, that would be absurd and dangerous. THe natural constitutional limits on the Judiciary's "ultimate interpreter" status is the standing and cases and controversies clause. Remember the limits on standing apply not just to the SCOTUS, but to all federal judges which act under the power of the SCOTUS. Do we really want any federal judge anywhere to start ignoring standing in deciding cases?

Remember the Executive and Legislative Bodies have the obligation and the duty to interpret and uphold the Constitution. Every time Congress passes a law they must interpret the Constitution, if only to make sure they are not violating it. Every time the Executive enforces the law, they must interpret the Constitution. There is no question that they have a role in interpreting the Constitution.

One may look at the recent proclamations by Bush and Cheney as an exercise in improper interpretation of the Constitution by the Executive, but i look at it as them taking the political aspects of the office too far and abdicating their roles as stewards of hte Constitution.

I don't think there is any general danger after the Rehnquist Court's reign that the Court's Judicial Review power over the other branches will suffer. But judicial review must come with some limitation, or the judiciary really will become the most dangerous branch.

I agree that courts should not interpret the Constitution outside of cases or controversies, i.e., issue advisory opinions.

But that doesn't mean the Executive has a co-equal role in interpreting the Constitution. Rather, the Executive almost always has standing to sue, i.e., it can bring a declaratory relief suit to establish whether it is required to enforce a law that it believes to be unconstitutional.

As for the Legislative and Executive duties to uphold the Constitution, in practice, there are several things this can mean. If it means "don't use discretionary powers in a way that you believe violates the Constitution", I agree. If it means "don't vote for or sign legislation that you believe violates the Constitution", I also agree.

However, if it means "disobey duly enacted legislation because you contend it violates the Constitution", then I disagree-- enforce the law unless and until you get a judicial interpretation that it is unconstitutional. And the reason for this is because the alternative position inexorably leads to "disobey duly enacted legislation that you don't like but didn't have the political guts to veto, based on a completely bogus constitutional objection, because you think you can keep the matter out of court".

Its not just the judiciary.

What is shown is that our institutions, including the Fourth Estate, fail when occupied by people who (1) detest them and (2) mock them and (3) are allowed to get away with it.

I was recently in the South -- those cities are all post World War II, even post Civil Rights, cities, e.g. built on the automobile, where in order even to get a quart of milk you have to burn gasoline.

Are they not the basis for the oil wars? How long would it take them to restructure, assuming they were willing to do so? Could we all help them?

They can still back off, but I doubt they have the mental capacity to do it. If not, there will be hell to pay.

Me, I admire Sherman's march to the sea; the scum sucking bottom feeding slave owning masters who refused every compromise and sought to extend slavery into the Western Territories deserved every moment of it, for subjecting us to their childish, reality denying, brain farting idiocies.

The power of that action is still reverberating personally...my great grandfather had 250 acres of land in Bowling Green, Kentucky, and lost it all, had to sell it, and emigrate to Texas, where he was a share cropper and then a grocery store owner.

The Bushies absolutely atrocious abuse of power, logic, and the English language aside for the moment - your argument seems a little wobbly:

For example - one isn't cloaked in infallibility by dint of being a Supreme court Justice... they can be *wrong*, you know.

People like to cite the various civil rights cases as 'proof' of the importance of judicial review and the like.. it entirely escapes them that those cases could have gone the other way. Power to save is often power to destroy.

The Constitution does not say only the SC has the power to interpret the constitution. However, it just makes a certain sense that the judiciary be the final word on how the Constitution applies to a given case and controversy.

Yet it's conceivable that the SC could arrive at some conclusion that most people find not only insane, but plainly and obviously contrary to the constitution... in such a circumstance, it's simply not the case that the 'check and balance' is an Amendment... if the SC screws the pooch in interpreting something, amending it would be absurd - the interpretation would be wrong, so there'd be no valid reason to change what was misinterpreted.

If the SC gave itself the power to be the "final word" the other branches might, in some circumstances, say the same thing.

Their ability to do so is not proscribed by the Constitution, and while it would normally seem dangerously unwise, there may come a day when doing so is necessary to check the power of the Court, and preserve the plain meaning of the Constitution or other law.