Remember Marbury vs. Madison? A question for readers

Last updated on: August 16, 2016 at 12:19 pm by Jane the Actuary

Remember Marbury vs. Madison? A question for readers 2016-08-16T12:19:55-06:00 Jane the Actuary

LOGO Patheos Explore the world's faith through different perspectives on religion and spirituality! Patheos has the views of the prevalent religions and spiritualities of the world.

SCOTUSbuilding_1st_Street_SE

Apropos of nothing, here’s something that I was thinking about the other day.

We all learn in our civics classes — or should have learned, anyway — that the Constitution itself did not define what the Supreme Court should be up to, exactly.

Section 1 of Article 3 states, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” And Section 2 follows: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

(See Wikipedia, for convenience.)

We further learned, maybe, that the Supreme Court claimed for itself the power of judicial review, that is, the ability to overturn a law by deeming unconstitutional, in the case Marbury vs. Madison in 1803. Now, Wikipedia has a whole section saying that the Supreme Court didn’t just invent this power out of whole cloth, but that the founders themselves had envisioned just such a power, and it just so happened that this decision was the first time this was put into use.

But the basic premise, as it’s evolved, is this: the Supreme Court makes its decisions by identifying whether a state or federal law, or an administrative implementation of the law, is in conflict with the U.S. constitution, or, secondarily, whether a state law violates a relevant federal law, or whether a federal law oversteps the bounds of its constitutionally-defined legislative authority.

And yet, at the same time, there are growing numbers of decisions which are — let’s face it — made on the basis of a completely different standard altogether, the majority judges’ perception of the Right Thing To Do, that which intuitively rights wrongs. Yes, the decisions may have found some line of argumentation to claim that they were basing their decision on a provision of the constitution, however vaguely. Roe v. Wade found a “penumbra” of a right to privacy that extends to an action that is no more or less “private” than other activities that we’re perfectly fine criminalizing. The Obergefell decision included very generic claims that the Constitution promises liberty to everyone. But in the case of Obergefell, remember, too, that those who celebrated the decision called it “poetic,” referencing the final paragraph:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed.

Now, I objected to the decision at the time (see here), but let me just raise one issue: is there anything, other than precedent, that prevents the Court from openly voicing this new approach: “in cases where the constitution is silent, or unclear, we will make decisions based on the ideals of justice and fairness that are held by the majority of the justices at the time the case comes to us for consideration”?

Is there anything in our laws or constitution that would prevent the Court from taking on this expansion of its power, or, rather, doing so more openly? And, if not, should there be, and how? In any event, should we at least acknowledge that this is what the Supreme Court has done in this case? And, if so, what does that mean for the actions that the Court might take in the future, given, for instance, Clinton’s pledge to extensively litmus-test her appointees?

That’s my question for readers today.

Image: the Supreme Court, from Wikipedia, public domain.

Uncategorized

Constitution

Supreme Court

Previous Post

August 14, 2016

Should we give up on Aleppo?

Next Post

August 18, 2016 What should Social Security do about mothers?

Browse Our Archives

Select a Category Actuarial/Retirement Issues Politics Uncategorized

Select a Month September 2026 August 2026 July 2026 June 2026 April 2026 March 2026 February 2026 January 2026 December 2025 November 2025 October 2025 July 2025 June 2025 May 2025 April 2025 March 2025 February 2025 January 2025 December 2024 November 2024 October 2024 September 2024 August 2024 July 2024 June 2024 May 2024 April 2024 March 2024 February 2024 December 2023 November 2023 October 2023 September 2023 August 2023 July 2023 December 2022 September 2022 August 2022 July 2022 June 2022 May 2022 February 2022 January 2022 December 2021 August 2021 June 2021 April 2021 February 2021 January 2021 December 2020 November 2020 October 2020 September 2020 August 2020 July 2020 June 2020 May 2020 April 2020 March 2020 February 2020 January 2020 December 2019 November 2019 October 2019 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 November 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 January 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013

TAKE THE

Religious Wisdom Quiz

What is the main Christian church in Armenia?

Select your answer to see how you score.

Armenian Apostolic Church Coptic Church Greek Orthodox Catholic Church