Good heavens, Peter, you are THE most brilliant legal scholar! Thank you for this post!
And gratitude also to Senator Rand Paul for his action - although, unfortunately, I can’t see it gaining traction.
It seems that only President Trump has the clout to make headway on this issue, and what a Herculean task it would be. Peter, realistically, do you think he will, or do you think it would be such an ordeal that he will let it slide? God knows he already has enough on his plate, and even Trump can only do so much. My own suspicion is that the issue might be left to fester until it causes a truly major crisis, such as a civil war.
His latest comments have been he wants the Congress to take the matter up with legislation, albeit not a Constitutional Amendment.
If Roberts ruling is allowed to stand, that will not be enough, although an act of Congress might be suitable for a rehearing of the issue before the Court. I'd be skeptical of that as a strategy—it hinges too much on being able to sway the Court to do the job correctly. Unless/until there is at least some turnover on the Court, I do not see the Court correcting itself here.
The Constitutional Amendment fight might be the way to go. While I do not see that a Constitutional Amendment is strictly necessary, a re-articulation to take away the progressives' penchant for completely misconstruing "subject to the jurisdiction" might be the best policy. That would require 2/3 of both houses to pass the Amendment before sending it on to the states for ratification.
To say that is an uphill battle would be an understatement!
Will this ruling lead to a civil war? It certainly puts us one step closer to the people of this country choosing sides and taking up arms. We've already seen the Democrats' and their penchant for insurrection. Eventually, the MAGA Coalition within the Republican Party is going to choose to fight that fire with some fire of its own.
Meanwhile, a campaign of nullification of this ruling will at least serve to clarify what the stakes are in that fight when it comes.
Marshall may not have thought the Marbury v. Madison decision gave the SC the ultimate authority over what is or what it not constitutional law, but it did.
I do not see that Marbury v Madison accords the Court any new authority. That is a widely held misconstruction of what Marshall said, but it is still a misconstruction.
We have become accustomed to according considerable deference to Supreme Court rulings, but the very existence of Dred Scott shows that the Supreme Court is quite capable of getting a ruling completely wrong.
When the Court opts for politics over the Constitution, that deference must be withdrawn and their plainly political and unconstitutional rulings called out for what they are.
If we do otherwise, we are according the Supreme Court authority to rewrite law without regard to the Congress, the several states, or the people. There has never been any articulation of what comprises the judicial Power that extends that far.
Seems like he didn’t either, but subsequent courts used that decision to increase the power of the judiciary. I tend to fall into the Jacksonian view of the court, “John Marshall has made his decision, now let him enforce it!”
It is worth noting that Jackson’s sentiments about the Court were pretty much how Alexander Hamilton envisioned the Court enforcing its ruling would take place in Federalist 78.
In Hamilton’s view of things, the courts were always going to be dependent upon at least the Executive Branch for enforcement, and this would serve to keep them in their Constitutional lane.
Clearly, Hamilton was an optimist when he needed to be a cynic.
Good heavens, Peter, you are THE most brilliant legal scholar! Thank you for this post!
And gratitude also to Senator Rand Paul for his action - although, unfortunately, I can’t see it gaining traction.
It seems that only President Trump has the clout to make headway on this issue, and what a Herculean task it would be. Peter, realistically, do you think he will, or do you think it would be such an ordeal that he will let it slide? God knows he already has enough on his plate, and even Trump can only do so much. My own suspicion is that the issue might be left to fester until it causes a truly major crisis, such as a civil war.
What will Trump do?
His latest comments have been he wants the Congress to take the matter up with legislation, albeit not a Constitutional Amendment.
If Roberts ruling is allowed to stand, that will not be enough, although an act of Congress might be suitable for a rehearing of the issue before the Court. I'd be skeptical of that as a strategy—it hinges too much on being able to sway the Court to do the job correctly. Unless/until there is at least some turnover on the Court, I do not see the Court correcting itself here.
The Constitutional Amendment fight might be the way to go. While I do not see that a Constitutional Amendment is strictly necessary, a re-articulation to take away the progressives' penchant for completely misconstruing "subject to the jurisdiction" might be the best policy. That would require 2/3 of both houses to pass the Amendment before sending it on to the states for ratification.
To say that is an uphill battle would be an understatement!
Will this ruling lead to a civil war? It certainly puts us one step closer to the people of this country choosing sides and taking up arms. We've already seen the Democrats' and their penchant for insurrection. Eventually, the MAGA Coalition within the Republican Party is going to choose to fight that fire with some fire of its own.
Meanwhile, a campaign of nullification of this ruling will at least serve to clarify what the stakes are in that fight when it comes.
Marshall may not have thought the Marbury v. Madison decision gave the SC the ultimate authority over what is or what it not constitutional law, but it did.
I do not see that Marbury v Madison accords the Court any new authority. That is a widely held misconstruction of what Marshall said, but it is still a misconstruction.
We have become accustomed to according considerable deference to Supreme Court rulings, but the very existence of Dred Scott shows that the Supreme Court is quite capable of getting a ruling completely wrong.
When the Court opts for politics over the Constitution, that deference must be withdrawn and their plainly political and unconstitutional rulings called out for what they are.
If we do otherwise, we are according the Supreme Court authority to rewrite law without regard to the Congress, the several states, or the people. There has never been any articulation of what comprises the judicial Power that extends that far.
Seems like he didn’t either, but subsequent courts used that decision to increase the power of the judiciary. I tend to fall into the Jacksonian view of the court, “John Marshall has made his decision, now let him enforce it!”
It is worth noting that Jackson’s sentiments about the Court were pretty much how Alexander Hamilton envisioned the Court enforcing its ruling would take place in Federalist 78.
In Hamilton’s view of things, the courts were always going to be dependent upon at least the Executive Branch for enforcement, and this would serve to keep them in their Constitutional lane.
Clearly, Hamilton was an optimist when he needed to be a cynic.
I couldn’t love this more.