Reply #34: They're Going After Marbury and McCullouch [View All]

[On the Road]

This act does NOT "change the fundamental principles of the constitution". As a matter of fact, it's a throwback to the early days of the United States, in which the Supreme Court did not have the power to judge federal laws unconstitutional or to strike down state laws.

In 1803, the Supreme Court Rule in Marbury v. Madison that "it was not bound by an act of Congress that was 'repugnant to the Constitution.'" In doing so, it established judicial review of acts of Congress.

http://writ.news.findlaw.com/commentary/20030224_grossman.html

Then in 1819, the Supreme Court widened the scope of federal authority over the states in McCulloch v. Maryland:

http://www.landmarkcases.org/mcculloch/home.html

Conservative legal scholars like Scalia or Rehnquist often use the "original intent" of the Constitution as a guide in interpreting it. If you slipped them truth serum, they might admit to hating the Marbury and McCulloch decisions and wanting to see them overturned. Unfortunately for them, that's considered an extreme position that cannot be voice publicly. It would throw our entire legal and judicial system into chaos, and turn back the clock in states that deviate from constitutional norms.

This proposed law gives Conservative judges leverage to attack judicial review and federal authority in ways not seen since the early 19th century.

I do think this is part of a coordinated plot, and I do think it will fail. But it is a little frightening.