Cases in Constitutional Law #1: courts should be conservative
Law ·Sunday October 11, 2009 @ 14:39 EDT (link)
These cases are from the 9th edition of Cases in Constitutional Law by Cushman and Koukoutchos. I am not a lawyer, but I have read and understand the United States Constitution (and some related commentaries) and have a reasonable grounding in logic and history. None of these cases are beyond the grasp of the United States citizen, nor should any be reticent to call out unconstitutional pronouncements even if they come from the highest judiciary in the land.
[✓] Hawke v. Smith (1920): The Ohio state constitution had been amended in November 1918 to allow a referendum on (U.S.) Constitutional amendments if it was petitioned for by 6% of the voters within 90 days. When the state legislature ratified the 18th amendment ("Prohibition") on January 27, 1919, the requisite petitions were obtained within 90 days, and subsequently the people voted against ratification, but on January 29, 1919 the U.S. Secretary of State proclaimed the ratification of the amendment.
The case before the court was whether this Ohio law was in conflict with article 5 of the U.S. Constitution, which spelled out ratification procedures, in this case, by approval of two thirds of the legislatures of the states. The court found that it did conflict since "legislatures" clearly meant the Ohio general assembly and that it was not subject to review by referendum.
This is a reasonable decision since the state legislatures are granted the power to ratify. If Ohio wanted to allow the people to review a ratification decision, they would have to do it before they communicated the ratification to the U.S. Secretary of State. It's unreasonable to allow reversal after an amendment has been ratified (by the nation), although not unreasonable to allow a state to take back its ratification if the amendment has not yet become law.
[✗] Coleman v. Miller (1939): The court found that despite Kansas' earlier rejection of an amendment, it could still ratify it later, however it gave troubling indications that the reverse would not be true, which, despite historical precedent (the 14th amendment, which was rammed through by force) is patently ridiculous (the ratification process should not be a ratchet that only turns one way until the amendment has actually become law). The court also said it lacked jurisdiction to compel time limits on the ratification of amendments.
[✓] Marbury v. Madison (1803): The case established "judicial review" in the United States, meaning that courts could overturn unconstitutional laws. Marshall gave a splendid defense of the idea, which, while reasonable, opens a rather large and dangerous door for future abuses. In fact in this case admirable restraint was shown when the court found that the law allowing them to issue the requested writ of mandamus, which they felt was justified and could be issued by a lower court, was unconstitutional. This opinion also includes a well-referenced definition of "cases and controversies". It doesn't even introduce a new power, since once a court decides against a law, even without judicial review every subsequent case would be decided similarly, sometimes by lower courts following precedent, so it has the mere effect of saving the court's time, promoting stare decisis, while not completely closing the door for a future court to revisit an issue.
[✓] Eakin v. Raub (1825): This is where the authors begin to run off the rails a bit (which as we know inevitably leads to a train wreck). The particular case is not all that interesting; it is a minority state court opinion arguing against the power of judicial review determined in Marbury on the grounds of separation of powers and that, provided a law is passed according to constitutional procedure, it is not the judiciary's role to invalidate it, but to interpret it, and are not required to agree with it, with any fault due to unconstitutionality remaining with the legislature. I believe judicial review provides a reasonable check on legislative power; like any tool it can be used for good or ill and sometimes its presence is better than its absence, and sometimes not.
Returning to the original point, the liberal bias of the authors begins to show:
Undaunted by the experiences of the Roosevelt era, Attorney General Edwin Meese III, speaking for the administration of Ronald Reagan, in 1985 launched an all-out campaign to effect dramatic changes in constitutional law and underlying doctrine. He announced that in his opinion the only valid interpretation of the Constitution was one that reflected the values of the original framers and established a policy that no person would be nominated for a federal judgeship who did not subscribe to this point of view.
While the "intent of the framers" is one of the earliest techniques of constitutional interpretation, it tends to produce extremely conservative results by today's standards and has largely given way to techniques that more closely reflect the current needs of a modern society. Moreover, assuming it was the intent of the framers to have the document interpreted by the courts at all, it may fairly be argued that they did not intend it to be interpreted with the rigidity of a statue. As Justice Marshall emphasized in McCulloch v. Maryland (1819), "We must never forget that it is a constitution we are expounding." Also, it is worth noting that even in the opinion that follows, Marshall does not rely on the intent of the framers for support. Pushed far enough, an interpretation based exclusively on "original intent" would virtually emasculate the due process clause of the Fifth and Fourteenth Amendments and could conceivably result in abandoning judicial review entirely.
The following points may be made in response. Meese's actions were necessary in light of Roosevelt's massive constitutional abuses with his fascistic regulation, government-supported cartels, and redistributive programs. By definition, a court should be conservative, i.e., "disposed to preserve existing conditions, institutions, etc., or to restore traditional ones, and to limit change." Its role is to interpret the laws, not to make new ones. Also by definition, the Constitution is a statute; article 6: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding." As for Marshall's quoted comment, it is (due to the lack of context, not any fault of his) completely content-free. Finally, appealing to emasculation of laws whose reach has far exceeded their intended purpose is not a sympathetic line of argument.
DVDs finished: Edge, Trick 'r Treat, Orphan, Miss March.
