Bench Memos

Law & the Courts

Ruth Marcus Needs Remedial Course in Constitutional Law

Ruth Marcus’s column in Sunday’s Washington Post is titled “The GOP candidates need a remedial course in constitutional law.” But it’s Marcus who displays the need for some remedial education. (I see that Matt just beat me to the punch on my first point.)

1. Marcus faults Rick Santorum for stating, “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.” Her entire rejoinder:

Um, hello, Marbury v. Madison anyone?

Earth to Marcus: Marbury expounded the power of judicial review (the ability of courts to review the constitutionality of laws and regulations that they are asked to apply), not judicial supremacy. And, in his defiance of the Dred Scott ruling, President Lincoln recognized that a president gives full respect to Marbury when he stands up to the Supreme Court when it exceeds its constitutional authority.

More broadly, the fact that Marcus thinks that invoking Marbury is some sort of clincher argument shows that she doesn’t understand the first thing about the arguments that folks on both the Left and the Right have made against the myth of judicial supremacy.

2. On the topic of birthright citizenship, Marcus faults Rand Paul for stating, “There’s never been a direct Supreme Court case on people who were here illegally, whether or not their kids are citizens.”  Marcus’s response (emphasis added):

Try Plyler v. Doe, the 1982 case guaranteeing the right to education for the children of illegal immigrants. The outcome divided the justices but all nine agreed that the fact of parents’ immigration status was immaterial to their children’s citizenship. “The Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically ‘within the jurisdiction’ of a state,” the dissenters wrote.

Marcus’s account is thoroughly confused. Plyler concerned the rights of children who were illegal aliens and had nothing to do with the “children’s citizenship.” The core point on which all nine justices agreed, as James C. Ho argues in his defense of birthright citizenship, is that “the Equal Protection Clause protects legal and illegal aliens alike.” That’s because the Equal Protection Clause protects persons “within [a state’s] jurisdiction” and not just citizens (“No State shall … deny to any person within its jurisdiction the equal protection of the laws”). So, yes, Plyler plays an important role in Ho’s argument—by (arguably) speaking to what the word jurisdiction means in the separate citizenship clause, also in section 1 of the 14th Amendment—but, contra Marcus, it doesn’t provide a “direct” holding on the larger question of birthright citizenship.

For what it’s worth, I find Ho’s defense of birthright citizenship to be weighty. My point here isn’t to take issue with Marcus on her bottom line. It’s instead to highlight that she appears not to understand the legal arguments for her position. 

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