April 07, 2012

Unprecedented Asshattery

Before you start reading this I want you to take out your copy of the United States Constitution. You have one right? If not hang your head in shame and go Google it yourself. I want you to read the part of the Constitution that establishes the judicial branch of our government. (Article 3). I'll wait here...


Back already? It's not a very long section is it. 

Did you see the part where the Constitution expressly describes the Supreme Court's authority to rule on the Constitutionality of legislation? Of course you didn't because it's not there. The principle of Judicial Review was established by the Supreme Court's interpretation of the Constitution in the case Marbury vs Madison. Never heard of it you say? Once more in shame to Google you go!

Got it? OK. Now for today's lesson basic civics and jurisprudence.

When a principle of law is clarified by judicial ruling such that this ruling becomes the basis for future application of the law, we call that a "precedent."  Dictionary.com defines precedent as:

noun
1.
Law . a legal decision or form of proceeding serving as an authoritative rule or pattern in future similar or analogous cases.
2.
any act, decision, or case that serves as a guide or justification for subsequent situations.

Marbury vs Madison was decided in 1803 thus the concept of the courts ruling that a law is in violation of the Constitution and therefore invalid has been the operating precedent for over 200 years.

I knew all of this without having to look it up because I learned it when I was young. I'll confess to having to look up the 1803 date because having the right year was better than "the early 1800's" which my memory of high school history was able to recover!

Now imagine that a hypothetical student went to law school. Not just any law school but the most prestigious law school in the country, if not the world. Imagine that same person while a student became editor of the school's Law Review an extremely prestigious position at an extremely prestigious publication at this extremely prestigious institution of higher learning. But don't stop there. Imagine that after receiving a law degree from the university at the pinnacle of legal education this person went on be an instructor of law. And not just any law an instructor of Constitutional Law.

You would think that person would have a better understanding of the concepts of precedent and judicial review than I can conjure up from my memory of a class I took in high school {cough} years ago. But what if this hypothetical person said:

"Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress"

You would have to wonder if perhaps a degree from the most prestigious law school in the country is worth the paper it is printed on. Or maybe our hypothetical student was absent the days they covered Marbury, the concept of precedent and any of the hundreds of cases over the last 200+ years in which laws have been overturned as unconstitutional.

Or maybe the hypothetical student knew that what he was saying was a massive pile of horse excrement but thought he could get away with it.

I'm not a lawyer and didn't go to the most prestigious law school and edit its law review and I never taught Constitutional Law. But it seems to me that with the 200 year history of judicial review arising out of the decision of Marbury vs Madison the Supreme Court overturning a law it judges to be unconstitutional would be the textbook definition of precedented.

If you want to have nightmares or watch your blood pressure spike imagine this hypothetical student grew up to be President of the United States.

Posted by: Stephen Macklin at 08:34 AM | Comments (1) | Add Comment


1 "... passed by a strong majority of a democratically elected Congress"
Passed in the middle of the night, without having been read in its entirety by even a single Congressman.  And in some strange new definition of "strong majority".
One of the main points of the Supreme Court is to rule on the constitutionality of laws.

Posted by: ZZMike at April 20, 2012 03:26 PM (CZwl9)

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