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Judicial Usurpation and the Constitution: Historical and Contemporary Issues

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Judicial supremacy gave us Dred Scott. Liberals are making hay of Matthew Whitaker’s views on Marbury v. Madison. Washington Post columnist Ruth Marcus, for example, writes that the newly appointed Attorney General is a crackpot, citing his comments to the blog Caffeinated Thoughts in 2014. Asked to name some of the worst Supreme Court decisions, Whitaker replied: “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues.”

Is that really a crackpot view? Here is Robert George from a 2005 paper published by The Heritage Foundation:

It is worth remembering that the power of judicial review is nowhere mentioned in the Constitution. The courts themselves have claimed this power based on inferences drawn from the Constitution’s identification of itself as supreme law, and the nature of the judicial office. Yet even if we credit these inferences, as I am inclined to do, it must be said that early supporters of judicial review, including Chief Justice Marshall himself, did not imagine that the federal and state courts would exercise the sweeping powers they have come to exercise today. […]

As for Marshall’s ruling in Marbury, a good case can be made that the power he actually claimed for the courts was quite limited. Remember: What the Supreme Court decided in that case was that the Court itself was forbidden by the Constitution to exercise original jurisdiction putatively conferred upon it by the Judiciary Act of 1789. Marshall reasoned that the Constitution, in Article III, fixed the Court’s original jurisdiction, and Congress was powerless under the Constitution to expand it. According to the contemporary constitutional scholar Robert Lowry Clinton, all this meant was that the Court was relying on its own interpretation of the Constitution in deciding what it could and could not do within its own sphere. This was entirely consistent with its recognizing a like power of the other branches of government to interpret the Constitution for themselves in deciding what they could and could not do in carrying out their constitutional functions.

However that may be, the power of the judiciary has expanded massively. This expansion began slowly. Even if we read Marbury more broadly than Professor Clinton reads it, treating it as a case in which the justices presumed to tell the Congress what it could and could not do, it would be another fifty-four years before the Supreme Court would do it again. And it could not have chosen a worse occasion. […]

In 1857, Chief Justice Roger Brooke Taney handed down an opinion for the Court in the case of Dred Scott v. Sandford. That opinion, which among other things declared even free blacks to be non-citizens, and Congress to be powerless to restrict slavery in the federal territories, intensified the debate about slavery and dramatically increased the prospects for civil war.

[Robert George, “Judicial Usurpation and the Constitution: Historical and Contemporary Issues,” The Heritage Foundation, April 11, 2005]

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