Constitutionality cases are unconstitutional
I was listening to a podcast this evening featuring three lawyers. They ended up discussing originalism, original intent, and the " where in the constitution does it say..." argument. They pointed out that nowhere in the constitution does it say that the Supreme Court is allowed to erase laws or otherwise decide what is and isn't constitutional. Constitutional hearings are unconstitutional.
I wasn't sure whether that was actually true, so I started reading Article III, and as far as I can tell they're right. Article III delimits all sorts of situations where the Supreme Court is allowed to exercise its power, and this is not one of them. It says that their power
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.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supreme Court disagrees. Most sources say that in Marbury v. Madison the Supreme Court decided that the Supreme Court had the power to determine what the Constitution says. But that's circular reasoning. For the court to be able to say that it could say that, the Constitution would first have to say that the Court could say that.
I don't have a problem with this, because I'm fairly pragmatic. Clearly somebody's got to decide issues of constitutionality, and that should probably be the Supreme Court. But if you want the Supreme Court to decide what's constitutional based only on what's written in the Constitution, they'll have to decide not to, because that's not actually written in the Constitution.
Update: I'm obviously saying this tongue-in-cheek, but some people actually think this. John McNaughton, the famous Mormon patriot painter, actually says on his own website that Marbury v. Madison "essentially started it all" (trampling our Constitutional rights, distorting the original intent of the Founders) because it "opened the door for judicial review of the constitution and made it possible for activist judges to become appointed and be able to interpret the constitution".
I wasn't sure whether that was actually true, so I started reading Article III, and as far as I can tell they're right. Article III delimits all sorts of situations where the Supreme Court is allowed to exercise its power, and this is not one of them. It says that their power
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.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Supreme Court disagrees. Most sources say that in Marbury v. Madison the Supreme Court decided that the Supreme Court had the power to determine what the Constitution says. But that's circular reasoning. For the court to be able to say that it could say that, the Constitution would first have to say that the Court could say that.
I don't have a problem with this, because I'm fairly pragmatic. Clearly somebody's got to decide issues of constitutionality, and that should probably be the Supreme Court. But if you want the Supreme Court to decide what's constitutional based only on what's written in the Constitution, they'll have to decide not to, because that's not actually written in the Constitution.
Update: I'm obviously saying this tongue-in-cheek, but some people actually think this. John McNaughton, the famous Mormon patriot painter, actually says on his own website that Marbury v. Madison "essentially started it all" (trampling our Constitutional rights, distorting the original intent of the Founders) because it "opened the door for judicial review of the constitution and made it possible for activist judges to become appointed and be able to interpret the constitution".