Bench Memos

Ruth Marcus Falls Off Her High Horse

In Sunday’s Washington Post, opinion columnist and former Supreme Court beat reporter Ruth Marcus devoted her column to chastising the GOP presidential candidates who need (as her headline read) “a remedial course in constitutional law.”  But it turns out that it is Marcus, not the candidates at whom she sneers, who needs to go back to school.

Marcus writes:

“If the court can just make a decision and we just all surrender to it, we have what Jefferson said was judicial tyranny,” former Arkansas governor Mike Huckabee said of the court’s same-sex marriage ruling.

Former Pennsylvania senator Rick Santorum made a similarly ill-informed point in the earlier, junior varsity debate. “Judicial supremacy is not in the Constitution, and we need a president and a Congress to stand up to a court when it exceeds its constitutional authority,” he said.

Um, hello, Marbury v. Madison anyone?

If you think there’s more to Marcus’s argument than this bit of snark and the citation of one case she thinks she understands, think again.  That’s all there is.  Marcus, who earned her J.D. at Harvard in 1984, apparently believes that Marbury v. Madison put the Supreme Court finally, decisively, authoritatively in charge of what the Constitution means, with an obligatory effect on all other public officials who take an oath to obey and uphold the Constitution.  What the justices say the Constitution means simply is the Constitution, no matter how outlandish it is.  And all other officers in the land take an oath to obey the justices—or any five of them—no matter what they make up as they go along.

Um, hello, Lincoln’s response to Dred Scott, anyone?  Has Marcus ever encountered our sixteenth president’s cautions about surrendering our right of self-government to “that eminent tribunal”?

Perhaps Marcus believes there is some opposition on Lincoln’s part to the correct reading of the Constitution’s judicial power—a reading offered by John Marshall in Marbury?  Then perhaps Marcus should read a really good book on Marbury.  Or a good treatment of John Marshall’s jurisprudence by the first editor of his recently published Papers.  Or an even better book by the editor who completed the Marshall Papers project.  Or this recent excellent biography of Marshall.  Or this still more recent judicial biography of Marshall, by one of the country’s preeminent legal historians of the Marshall-Taney period.  Or this by the leading student in political science of the problem of judicial supremacy, who writes that “it is the purest bootstrapping to imagine that [Marbury] establishes judicial supremacy.”  None of these gentlemen thinks that Marbury v. Madison stands for the proposition that the Supreme Court is the exclusive, final, authoritative interpreter of the Constitution on all questions.

If finding and reading all of these books is too much for her, Marcus could just come to my lecture tomorrow at Hillsdale College’s Kirby Center in Washington, titled “An ‘Extravagant Conception of Judicial Supremacy’: Rescuing the Constitution from the Supreme Court.”  This would give her a start at least on her own remedial course in constitutionalism.

 

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