Thursday, July 22, 2004

Judicial Review Under Attack

The House debates today one of the more troubling bills currently under consideration. It is a bill that forbids courts from ruling that states must recognize same-sex marriages from other states.

It's not troubling to me because of the gay-bashing. I've come to expect that from Congressional Republicans. What's troubling to me is what the passage of this bill - if it somehow makes it through the Senate - would mean to our current system of judicial review.

Judicial review - the notion that the Supreme Court and lower courts can declare legislation unconstitutional and order it stricken from the books - is not clearly written in the Constitution. As every high-schooler learned, it was developed by Chief Justice John Marshall in the 1803 case Marbury v. Madison. Neither Congress nor the Executive gave the Court that power - they just asserted it themselves. Which means it's a shaky proposition, when you think about it.

Fortunately, until now judicial review hasn't been challenged much. Sure, it's been grumbled about - especially after Roe - but I don't know if it's been challenged in Congress before. Personally, I like judicial review - it's an added check on a Congress that is often too subject to the political winds of the day to concern itself with the constitutionality of a given law.

This bill currently under debate would purport to strip the Court of judicial review, at least in the domain of same-sex marriage. Congress is telling the Court how to interpret the constitution. I don't think it's right to tell the court how to think without a two-thirds majority and ratification by the states (an amendment, in short). First same-sex marriage, next abortion, then... Any court decision that Congress doesn't like it could thumb its nose at. Too much power in one branch for me - Congress shouldn't be judging the constitutionality of its own laws.

Worse, the Courts could subject an anti-judicial review law to judicial review. The Court, of course, would re-assert its power. Then what? Who does the Executive, responsible for enforcing laws, believe? It could basically enforce laws any way it sees fit - either ignore the Congress or the Judiciary, take your pick.


Ben said somewhere - I think it's on a comment in Jacob's blog - that Congress could, theoretically, just thumb its nose at the courts if it wanted to. Well, it's happening. Now what? That's what I'm troubled by...

Sorry for the rambling nature of this post. I didn't feel like being coherent today.

1 comment:

Mike said...

Wow, it takes a lot to make a person shiver in July in Houston.