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PaperclipPerfector  3yr ago (text post)   40097 thread views

Culture War Roundup for the week of April 10, 2023

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The logic of Marbury is this:

  1. The Constitution says that the Constitution is the supreme law of the land.

  2. Therefore, if a state law conflicts with the Constitution, the Constitution must prevail.

  3. Whether a law conflicts with the Constitution depends on how the Constitution is interpreted.

  4. The interpretation of law, including the Constitution, is the judicial power. (As opposed to the executive power or the legislative power).

  5. The Constitution give the judicial power to the Supreme Court, and to such inferior courts as Congress may establish.

  6. Therefore, if the Supreme Court interprets the Constitution to forbid what a state law does (eg, exempting religious schools from funding available to all other schools), then the state law is invalid.

Why is that incorrect? Note, btw, that all three branches get a crack at tossing a federal law if they think it is unconstitutional: Congress can refuse to enact it; the President can veto it, or perhaps refuse to enforce it; and the Supreme Court can declare it unconstitutional. For state laws, it is effectively four branches. All of that enhances limited government: A law cannot be enacted unless all branches agree that it is constitutional.

I think your argument fails on point 3. Interpreting the Constitution is not just a power of the judiciary. The President swears to uphold the Constitution, so presumably interprets it (as he does not get to ask the Supreme Court about every action). So does the legislature, in much the same way.

  1. I think you meant point 4.

  2. As I noted, of course the President and Congress can each opine that a statute is unconstitutional: "Note, btw, that all three branches get a crack at tossing a federal law if they think it is unconstitutional"

Remember, the Judicial Power only covers "cases" not over-ruling statutes or setting policy:

? Yes, but if there is a case -- ie, the state charges someone with a crime for advocating socialism -- then, courts have jurisdiction over it.

but that is going from a "case" to a general rule, which is beyond the old interpretation of judicial power - the authority to resolve a dispute.

Yes, a SCOTUS decision is technically only binding on the parties thereto. But, once a decision is issued, then lower courts are bound to follow that precedent in each specific case. So, this is really not a meaningful distinction.

Finally, your interpretation enables the Supreme Court to overrule the other two branches, which does not seem like a very good design.

As I noted, the system is designed such that a law cannot take effect unless ALL branches agree that it is constitutional. A court's power to weigh in is a feature, not a bug.

And, this is what Federalist Paper no 78 says:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Roe is a good example

Maybe, but why focus only on the abuses of one branch? What about the many laws that have been passed by Congress and state legislatures that blatantly violate individual rights? If the courts have no say, then those rights are meaningless. It is as if the First Amendment were amended to say, "Congress shall make no law abridging [long list of rights], unless Congress thinks it is ok."

And, I would note that when autocrats in countries from Hungary to Zimbabwe and everywhere in between want to take power, the first thing they do is neuter the independence of courts, either by packing them or otherwise.

judicial independence means that the liberal elite can not be replaced,

That's an odd argument, given that after Warren retired, Republican presidents nominated the next 10 justices.

But, again, you haven't really addressed the problem of giving the legislature and executive carte blanche to ignore the Bill of Rights, as well as other individual rights protected by the Constitution.

A balanced system, where two out of three of the branches of government can overrule the other, seems simplest.

I don't understand why simplicity is an important criterion.

I understand that people think that the rights in the Bill of Rights, as modified by rulings from the 50s to 2000s, are super important. Some people think this is because they like the direction of the rulings. ... A constitution is not much use if it does not limit the power of one branch

A Constitution is of even less use if it does not limit the power of the government. The system for which you are advocating, wherein the legislative and executive branches are not constrained by courts, is a system in which the legislative and executive branches are not constrained by the Constitution. Because that is the reality in countries without judicial review and independent judiciaries, and that was what the reality was before the Court began enforcing civil liberties in the mid-20th century. Do you know how many search warrants were issued in New York City before the exclusionary rule was applied to the states? None. Do you know how many "Reds" were imprisoned in the 20s and 30s in the United States? Or how many US citizens would have been held at Guantanamo without trial or even access to a lawyer were it up to the Bush Administration and Congress? Here is what Federalist 78 says:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Finally, it is irrelevant that "two of the branches are elected every 2 or 4 years, and you have some answerability to the electorate," because it is precisely the electorate that is the greatest threat to civil liberties of members of outgroups.

Whatever the evils are associated with the current system, including overturning laws outlawing sodomy, they pale in comparison to what would be visited by the system that you advocate.

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