“It is emphatically the province and duty of the Judicial Department to say what the law is.”

“If then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, [then] the constitution, and not such ordinary act, must govern the case to which they both apply.”

“Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by [the Constitution]”

“The chief concern of a common law judge must be the expectations which the parties in a transaction would have reasonably formed on the basis of the general practices that the ongoing order of actions rests on. In deciding what expectations were reasonable in this sense he can take account only of such practices (customs or rules) as in fact could determine the expectations of the parties and such facts as may be presumed to have been known to them. And these parties would have been able to form common expectations, in a situation which in some respects must have been unique, only because they interpreted the situation in terms of what was thought to be appropriate conduct and which need not have been known to them in the form of an articulated rule,” (p.86)

“By the time the judge is called upon to decide a case, the parties in the dispute will already have acted in the pursuit of their own ends and mostly in particular circumstances unknown to any authority; and the expectations which have guided their actions and in which one of them has been disappointed will have been based on what they regarded as established practices. The task of the judge will be to tell them what ought to have guided their expectations, not because anyone had told them before that this was the rule, but because this was the established custom which they ought to have known. The question for the judge here can never be whether the action in fact taken was expedient from some higher point of view, or served a particular result desired by authority, but only whether the conduct under dispute conformed to recognized rules,” (p.86)

“The existence of an independent judiciary seems inconsistent with—in fact, profoundly threatening to—a political system in which public policy emerges from the struggle of interest groups to redistribute the wealth of the society in their favor, the view of the political process that underlies much of the recent economic work...on the political system. The outcomes of the struggle can readily be nullified by unsympathetic judges—and why should judges be sympathetic to a process that simply ratifies political power rather than expresses principle?” (p.876).

“In the economists’ version of the interest-group theory of government, legislation is supplied to groups or coalitions that outbid rival seekers of favorable legislation. The pricce that the winning group bids is determined both by the value of legislative protection to the group’s members and the group’s ability to overcome the free-rider problems that plague coalitions. Payment takes the form of campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes. In short, legislation is ‘sold’ by the legislature and ‘bought’ by the beneficiaries of the legisaltion.” (p.877)

“Private sales, and other private contracts, carry legal sanctions for nonperformance...But there are no legal sanctions for the failure of a legislature to carry oout its ‘bargain...’ There is no legal mechanism analogous to a binding long-term contract by which the enacting Congress can prevent a subsequent Congress fromo amending the legislation in a way unfavorable to [special interests], or indeed fromo repealing it altogether.” (p.877)

“Legislation is not self-enforcing, however. If the people subject to a law refuse to obey it, recourse to the courts i snecessary to enforce the law. A judiciary that was subservient to the current membership of the legislature could nullify legislation enacted in a previous session of the legislature. Suppose that Congress in uyear one ‘sells’ the dairy industry a heavy tax on margarine, but the next year the producers of margarine offer Congress generous inducements ot remove the tax. Congress is unlikely to respond to this demand by enacting repealing legislation...but if the judges are the perfect agents of the current Congress, they will refuse to enforce the margarine tax, the effect will be the same as legislative repeal.”