Whether Roe v. Wade is overturned or not, a constitutional amendment is needed to settle the issue for good. My latest at The Federalist.
Whether Roe v. Wade is overturned or not, a constitutional amendment is needed to settle the issue for good. My latest at The Federalist.
I appreciated the subject article in todays Federalist. I agree with your proposition that the definitive action to correct Constitutional issues created by an activist judiciary and a dysfunctional legislature is through the amendment process. I often wonder why the ninth and tenth of the BoR are not relevant considerations or legitimate legal arguments in these matters?
They should be! Courts have ignored them.
Hi Kyle,
I’m not a lawyer — perhaps that’s why I read the words of the Constitution and federal laws as written (not just what others imagine). So, here’s a thought for food:
The Supreme Court has original jurisdiction in limited circumstances and only such appellate jurisdiction as may be permitted by Congress. The Congress can add a (very) simple statement at the end of every bill they pass, “No action may be brought in any court in the United states challenging the Constitutionality of this Act”. In particular, they can do exactly this with a bill to obviate Roe v Wade. No Constitutional amendment needed.
Of course, Congress would have to act.
The problem here is in how the law is enforced, then. If Congress makes something illegal, it gets prosecuted in the courts. Wouldn’t it deprive defendants of the due process of law to artificially limit the ways they can defend themselves? Congress could pass a censorship law and lock people up for criticizing the president. If your proviso was added to such a law, how would the First Amendment ever be enforced?
You asked, “Wouldn’t it deprive defendants of the due process of law to artificially limit the ways they can defend themselves?” [if Congress made some statutes immune from Constitutional challenge].
No, of course not.
a) There’s be nothing “artificial” about Congress adding a bar against raising a constitutional challenge to a law. Congress has done this before.
b) The number of times defendants have successfully raised such a challenge is miniscule (as a percentage of successful defenses).
c) The courts have no actual Constitutional authority to nullify laws (go back and read Marbury). Only the President has that constitutional authority (only he is obliged by the Constitution to swear or affirm he will protect and defend the Constitution BEFORE HE CAN ASSUME THE OFFICE — all inferior officers must swear only to SUPPORT the Constitution). Indeed, President Obama declared the Defense of Marriage Act unconstitutional — without the blessing of the Supreme Court.
Marshall’s Marbury opinion was nearly all dicta (over 3000 words) — he dismissed it based on lack of original jurisdiction. And the Supreme Court didn’t exercise this purported power before its infamous Dred Scott decision, more than fifty years later.
The idea that Marshall invented judicial review is an exaggeration. It predates the constitution: see this article, for example, from Stanford Law Review.
http://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf Cutting off people’s full range of legal defenses against the state is a bad idea.
So you think “judicial review” is buried somewhere in the “penumbra” of the Constitution — or that a practice that predates the Constitution has some validity under our present form of government?
You’re of a piece with Taney, who claimed the Missouri Compromise(s) were unconstitutional — because of something said in the Articles of Confederation — as an aside when he decided “once a slave, always a slave” Dred Scott. This first exercise of judicial review, btw, was the proximate cause of the Civil War (IMHO).