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Wed, 31 Aug 2011

I just came across an article that shows I'm not the only one who thinks that US Constitutional law has gone a little overboard in its interpretation of the Marbury v. Madison Supreme Court decision. The article's position is summarized in this paragraph, towards the end of the introduction:

It is the fundamental betrayal of Marbury's premises and Marbury's logic that accounts for nearly all of what is wrong with "constitutional law" today. The twin peaks of constitutional law today are judicial supremacy and interpretive license. Marbury refutes both propositions. Correctly read, Marbury stands for constitutional supremacy rather than judicial supremacy. And constitutional supremacy implies strict textualism as a controlling method of constitutional interpretation, not free-wheeling judicial discretion.

The bit about "strict textualism" is explained further later on in the article:

Marbury's conception of written constitutionalism implies a particular methodology of constitutional interpretation: originalist textualism - that is, the binding authority of the written constitutional text, considered as a whole and taken in context, as its words and phrases would have been understood by reasonably well-informed speakers or readers of the English language at the time.

As I noted in my previous post, this does raise questions when considering issues that weren't even contemplated by the Framers, such as whether wiretapping constitutes a "search and seizure" under the Fourth Amendment, as in Olmstead v. United States. But such questions always end up being questions of classification, not principle: whether wiretapping counts as a search and seizure, rather than whether evidence obtained by a search and seizure without a warrant is admissible (no one disputed that it was not). As I noted in my previous post, many of the Court's classifications (such as what they think counts as interstate commerce) are highly questionable, and the logic suggested by the above quote can be used to see why. Would an average American in 1790 have agreed that growing food on one's own property for one's own use counts as "interstate commerce"? I'm guessing not. So on the whole I think the methodology advocated in the article is sound.

The full article is worth a read, and I won't belabor the details of its arguments here (though I will note that the article focuses, as I did, on Chief Justice's Marshall's statement that the Supreme Court's job is to "say what the law is", and how that statement has been taken way out of context). However, I can't resist one more quote:

Marbury truly fits Mark Twain's definition of a "classic": a work that everybody praises but nobody actually reads. Marbury is invoked today for the myth it has become, not for its actual reasoning and logic.

Which is a good brief summation of what I was getting at in my previous post. (Please note that this is not a blanket endorsement of everything on the Free Republic website, which is where the article is posted. The article itself is from the Northwestern University School of Law.)

Posted at 17:59   |   Category: opinions   |   Tags: history, politics   |   Permalink
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