Constitutionality cases are unconstitutional

[tongodeon]

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.

Comments

[jwgh]

Congress occasionally makes noises about putting limits on what the Supreme Court can do, and that is based on that "under such Regulations as the Congress shall make" bit there.

The general problems I have with this sort of thing are (1) the founders were by and large still around when Marbury v. Madison happened and no such limits were put on the Supreme Court then (but I admit I don't know if there were any attempts to do such at the time or, if there were, why they failed) and (2) ignoring the past 200-odd years of Constitutional law and coming up with brand-new interpretations of what the Constitution says would result in an extremely radical restructuring of how the country work, which is kind of scary -- it would be way more extreme than even the sorts of things each party like to accuse the other of. Surely there's a way to improve the country without burning it back down to the foundation and rebuilding it?

[mmcirvin]

That passage says that the Supreme Court has appellate jurisdiction both as to law and fact in various interstate and federal cases. The Constitution is law, the highest law of the land, so it would presumably be included as part of the law according to which the Supreme Court is supposed to decide cases

[cdk]

Yeah, that's pretty much the theory as I understand it - the Constitution is superior to any other law, and the Supreme Court is not only the court of last resort for interpreting the Constitution, but also the last step in the chain. If action X is unconstitutional, Congress can say it's OK to do it, and the President can tell somebody to go do it, but ultimately they're still going to end up in front of the Supreme Court who will tell them not to do it.

I've also seen it argued (and personally agree) that all branches of government have an obligation to examine whatever laws they interact with and neither write nor act upon unconstitutional laws. It comes up mainly in regard to the President, either not enforcing laws that they believe to be unconstitutional, or refusing to defend them in court. It just happens that the Supreme Court has the last say, and their decisions most directly impact the other branches, but everyone has to work within the document.

[mmcirvin]

The last bit became a hot issue during the Bush administration and has continued to some extent into Obama's. Bush had a habit of issuing signing statements claiming that his authority as Commander-in-Chief of the military gave him all sorts of extraordinary powers in situations he saw as war situations, and that when enforcing laws he'd interpret them that way. Obama's done similar things on occasion. Obama's Justice Department surprised everyone by deciding to continue to defend various broad counterterrorism provisions in court, and was also defending DoMA for a while but then decided not to do it any more.

[flwyd]

But if the Supreme Court had decided that it didn't have the power to determine what the Constitution says, they wouldn't have had the power to make that decision.

[tongodeon]

Well sure, but that's more of a moot point. The constitution also doesn't say that I have the power to determine what the Constitution says. I have also decided that I don't have the power to determine what the Constitution says, but that's a moot decision, because I never had the power to decide that in the first place.

[flwyd]

But your decision that you can't hear Constitutional cases could be appealed. In principle, a higher court could overrule your decision and declare that you do, in fact, have that power.