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It is amazing how many people have trouble understanding that a dispute of the form “is this action the government is taking lawful, given the existence of Congressional action X and Constitutional provision Y” is case arising under the Constitution and Laws of the United States.

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Yes, it’s a bit surprising. The whole point of a constitution is to provide a groundwork and a set of meta-rules governing how the ordinary rules of society may be made and modified, and how disputes about those sorts of thing should be resolved. The judiciary is precisely the mechanism for entertaining and deciding these disputes.

The odd thing, really, is that it took a decade and a half, until 1803, for the Supreme Court first to find it necessary to tell another of the other branches of government that it had broken the rules.

Not all that odd. The federal government legislated much less then, it was a drastically simpler nation. And the 14th amendment had not been adopted incorporating most of the first 10 amendments to cover state actions.

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