‘Marbury v. Madison’ and Its Constitutionality — Revisited

 

By Steven Jonas

Several significant decisions handed down by the U.S. Supreme Court at the end of its 2022-23 session, such as the one in the matter of discrimination in publicly offered services on the basis of personal religious belief, and affirmative action providing for racial preferences in the matters of admissions policies of private institutions of higher learning, have raised a great deal of controversy. Indeed, they are oddly contradictory. In the matter of whether or not a person offering services in the public square, with the benefit of public funded services like pure water supply and sanitary sewage disposal, public safety services, and street maintenance, could discriminate on the basis of, as noted, a personal religious belief, they could. On the other hand, a private institution of higher education, the beneficiary of the same public services, could not discriminate in the matter of offering its services to a minority which, in its view, has suffered from discriminatory practices over a period of several centuries.

With these kinds of religious/ideological decisions, the Court, in addition to their substance, has also raised the matter, once again, as it has so often been considered in the history of U.S. Constitutional law, of whether the Supreme Court does indeed have the powers that it has aggregated to itself since the time of its decision in the case of “Marbury v. Madison” (1803). At that time, under the leadership of the then-Chief Justice John Marshall, it did so. In several subsequent cases in the Marshall Era, the Court also arrogated to itself the power to review actions of the actions of the other two branches of the Federal government, and of the State governments as well.

A current review of significant discussions of the matter of the Supreme Court’s power, where it comes from, and its Constitutional legitimacy can be found here. One prominent contemporary view of how the Supreme Court’s’ power to review the Constitutionality of decisions of the other two branches of the Federal government, which has led over time to a very broad reach for Supreme Court power, well beyond the matter of “standing” which was at the center of the controversy in Marbury v. Madison, was expressed by Prof. John Meacham of Vanderbilt University. He is a prominent Presidential historian and authority on the history of the Constitution and Constitutional law. On a recent broadcast of the MSNBC AM news show, “Morning Joe” he characterized the Supreme Court’s review power as established by Marshall, in words to the effect of: “Well, he just more or less made it up.” This column is based on a previous column of mine that dealt with this subject.

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Source: OpEdNews.com