Not so fast, oj. State courts would still have authority to run roughshod over the citizenry, including use of the U.S. Constitution to override enactments of state legislatures. Plus, don't be too sanguine about the constitutionality of Congressional limitations on federal court jurisdiction, notwithstanding that Article III, Section 2 specifically provides for such action. When I was in law school (mid-'70's) this was a hot issue. My professors were uniform in their lefty politics and the belief that the Supreme Court would never sit still for Congressional restrictions on jurisdiction based on the issue involved. Remember, the case of Marbury v. Madison, where Chief Justice Marshall announced ex cathedra that the Supreme Court had the final say on matters of constitutionality, caught most of the founding Fathers by surprise. Put my money on the current Supreme Court holding 6-3 that the Marriage Protection Act is unconstitutional.

While Article III lets Congress regulate the jurisdiction of the inferior courts it creates, it also gives the Supreme Court original jurisdiction over cases involving a state. So if a gay couple sues a state, the Supreme Court could itself hold the original trial in the lawsuit.

As for Marbury v Madison, it was received comfortably the founders, including Thomas Jefferson who often criticized the courts, because it didn't claim that the Supreme Court had exclusive right to interpret the Constitution or final say on its meaning -- this is just a 20th century myth. Rather, Marshall held that all officers (judicial, executive, and legislative) by virtue of their oaths have an obligation to understand and interpret the Constitution themselves and apply it within their limited, coordinate, and checked-and-balanced official duties -- the judges in their decision of a case, the president in his enforcement of decisions, legislators in their legislative and budgeting acts. This is simply another way of saying that the Constitutional text is superior to all branches and any human interpretations of it. Marshall's meaning has been reversed by our modern judicial supremacists.

Marbury is wrong.

Marbury is fascinating, and I highly recommend that everyone go read it. Jefferson didn't object to it because the Court did what he wanted: it refused to order James Madison, Jefferson's Secretary of State, to deliver to Mr. Marbury his (already executed) commission of office.

Not unlike Bill Clinton, the Adam's administration left some ticking time bombs for the succeeding Jefferson administration. Among them was the appointment of its own people (Federalists) to newly created federal judgeships, from which they would be able to obstruct Jefferson. However, their commissions weren't delivered before Jefferson took office, and Madison refused to deliver the commissions.

Marbury sued, under a statute giving the Supreme Court original jurisdiction, for an order forcing the delivery of his commission. There was no doubt that Marbury would win, but Jefferson let it be known that if Marshall (a Federalist ally of Adams and Marbury) ordered Madison to deliver the commission, Jefferson would tell Madison to refuse. As the Court had no way to enforce its ruling, the Court would be weakened. Marshall got around this dilemma by finding the act giving the Court jurisdiction to be unconstitutional, thereby avoiding the necessity of giving an order that Jefferson wouldn't obey.

The relevant portion of Marbury, which does suggest that the courts have the final say on interpreting the Constitution, follows:

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts pro- [5 U.S. 137, 177] hibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.

This theory is essentially attached to a written constitution, and is consequently to be considered by this court as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and he constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions-a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution. [5 U.S. 137, 179] Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that 'no tax or duty shall be laid on articles exported from any state.' Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

The constitution declares that 'no bill of attainder or ex post facto law shall be passed.'

If, however, such a bill should be passed and a person should be prosecuted under it, must the court condemn to death those victims whom the constitution endeavours to preserve?

'No person,' says the constitution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.'
Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these and many other selections which might be made, it is apparent, that the framers of the consti- [5 U.S. 137, 180] tution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.'

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him.

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

David - Read Michael Paulsen's "The Irrepressible Myth of Marbury," Michigan Law Review 101: 601-637 (August 2003).

The important passages in Marbury are the ones dealing with the significance of the oaths the Constitution assignes to all officers -- judicial, executive, and legislative -- to uphold and defend the Constitution. The sacredness of the oath taken by judges, Marshall contends, requires them to elevate the Constitution itself above all other authorities, including the other branches. The same logic holds for the executive and legislative officers, who are required by their oath to treat the Constitution as a higher authority than the judicial branch. Nothing in Marbury contradicts that thesis. Isn't it obvious that judges do have to judge the law ('say what the law is') in order to judge? And isn't it equally certain that the executive has to 'say what the law is' in order to enforce it, or 'say what the Constitution is' in order to uphold and defend it as the President's oath requires?

Liberals and libertarian bloggers are predicting that the GOP's opposition to gay marriage will turn off moderate voters and kill the GOP in the fall election. We'll have to see who is right.

In a word, no.

Should the House clerk, who also swears to uphold and defend the Constitution, refuse to enroll a bill he believes to be Constitutional? Should the government press refuse to print it? Should individual soldiers each decide whether to refuse to invade Iraq because they are convinced that Congress "unconstitutionally" failed to "declare war", or violated international law, or delegated its war powers to the President?

Marshall says that "It is emphatically the province and duty of the judicial department to say what the law is." The courts will have the last word, unless the president does what Jefferson threatened and Jackson did, ignore the court, and doesn't get impeached.

AWW:

As a simple matter of political reality no party has ever hurt itself by opposing expansion of civil rights. Race made the GOP the majority party and anti-immigration would help them greatly. Anti-gay rights will help, not hurt.

PJ, OJ, David: What about #11? I'm fully aware of the Young doctrine, but the State is not a party to the litigation in that event.

David - First, the Constitution doesn't declare the oath of the House clerk, so he's not a constitutional officer in the same sense as judges, Presidents, and members of Congress.

Second, if there is a consensus on what the Constitution means, conflicts will be quickly resolved: House clerks fired, legislators outvoted, presidents impeached or over-ruled by acts of Congress, judges ignored or impeached.

If there is no consensus but the lack of consensus is not costly, then the disagreement is not a problem?

If there is no consensus and the lack of consensus is costly, then odds are high that the Constitutional officers (and the public) will find a compromise.

And if there is no consensus and the lack of consensus is costly and no compromise can be found, then:
a) The experience of the Civil War shows that having the Supreme Court dictate an answer will not resolve the conflict, only take it out of the only fora that can resolve the conflict peacefully;
b) The experience of the Civil War and Roe v Wade shows that we cannot expect fiat dictators to behave ethically or wisely. Power corrupts, and the founders were wise to prefer checked-and-balanced coordinate powers to unchecked dominant powers.

Your argument is merely applying the core principle of socialism (and communism) -- it's impossible to achieve constructive goods (like a constitutional consensus) through cooperation and compromise, therefore we need to allocate dictatorial powers to a single authority -- to a single narrow issue. That principle is a mistake in nearly all contexts, including the context of Constitutional interpretation.

Chris - Literally, the 11th Amendment excludes suits against a state by citizens who are resident in an another state (see 14th Amendment), and by non-U.S.-citizens. It doesn't exclude suits by citizens who are resident in the state being sued. Of course, the Supreme Court has (wrongly) interpreted the 14th as extending the power to sue.

PJ:

Article VI, Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

You say: Your argument is merely applying the core principle of socialism (and communism) -- it's impossible to achieve constructive goods (like a constitutional consensus) through cooperation and compromise, therefore we need to allocate dictatorial powers to a single authority -- to a single narrow issue. That principle is a mistake in nearly all contexts, including the context of Constitutional interpretation.

I'm not sure what to take issue with: a, that that's my position or b, that there can be effective management without an ultimate decision maker.

The Supreme Court has only been able to do what it's done because the President and Congress, and ultimately we the people, have let it. No president has said, recently, "the Supreme Court has made its decision, let it enforce it." No Congress has threatened to impeach a justice for failing to interpret the Constitution correctly. Roe is wrongly decided and part of a strong trend towards the courts inserting themselves into every facet of governance and superseding both Congress and the President, but the people have been largely supportive. The genius of the Constitution is that, for the people to change the government, requires a persistent and dedicated supermajority. It's nowhere to be found.

It is also a government in which the executive power is vested in one man. That's not an accident, but an important part of the statutory scheme. Unfortunately, those men have, over time, allowed their constitutional prerogatives to be worn down under attack from the other two branches. However, it was the decision of the Framers that efficient government required that the executive power be placed in one office, responsible and answerable to the people for the execution of the laws. I don't see what is inherently socialistic or communistic about that arrangement.

I'm not objecting to placing the executive power in a President. But note that that power is checked in numerous ways. Similarly, I don't object to placing all the judicial power in judicial hands, so long as other actors check that power.

No, it's not people having power that I object to, but unbridled power outside the Constitutional scheme.

You're right that Presidents, Congress, and the public have refused to enforce their rights against the courts. The fact that supermajorities don't exist for impeaching Supreme Court justices doesn't mean that supermajorities would exist for impeaching a President who defied the Supreme Court. What restrains politicians from resisting judges is politics -- the perennial search for a narrow edge with the undecided middle of the electorate. And one thing that makes it politically damaging to resist a judicial order is the widespread, and mistaken, idea that judges have final authority over the meaning of the Constitution.

My first paragraph was a bit unclear, let me rephrase: I don't object to placing all the judicial power in judicial hands, so long as executive powers remain in executive hands and legislative powers in legislative hands. Judicial supremacy allows judges to seize legislative power, re-interpreting the Constitution to make new Constitutional law as they wish, and by giving them an absolute right to have their edicts enforced, in effect makes them supervisors of the executive branch. This agglomeration of legislative, judicial, and executive power into single unelected hands is not what the founders intended -- and not what Marshall was defending in his Marbury opinion.

If enforcement is an executive power, and if executive power is to be in executive hands, then judicial authorities cannot have an automatic right to have their rulings enforced. What they do have a right to, as Marshall declared in Marbury, is to form their own judgements as to the law and to craft their rulings in accord with those judgments. This prevents the executive branch from enforcing its contrary concept of the law against states or individuals, since there can be no punishment without a judicial ruling. Marshall argued for independence of the judicial function, not a takeover of the executive function.

pj: Marshall is clearly saying that the courts get the last word on whether a law is constitutional and get to tell the other branches what to do. He says that "In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." In all his examples of plainly unconstitutional laws, he never even gives lip-service to the idea of deferring to the legislature and assuming that it won't pass unconstitutional laws. For all his reliance on the oath, he never even mentions that the legislature also swears to uphold the constitution and is in no worse a position than the court to determine what the constitution is.

Jefferson didn't object because Marshall wrapped himself in knots to give Jefferson the result he wanted.

Coincidentally, Jonathan Adler posted the following in the Corner today as part of a comment on FDR bullying the Court: The second involved the (in)famous Nazi saboteur case, Ex parte Quirin. FDR's administration made clear to the Court that the saboteurs convicted before the military tribunal would be executed irrespective of the Court's decision on the case, so it would be in the Court's interest support the administration -- and it did.

The Court only has the power the other branches give it.

I guess we're only arguing over Marshall's intention, which is now beyond our capacity for empirical investigation. You agree with most legal historians.

I agree with your last point, but isn't it desirable to reduce the discretion which other branches give the judiciary?

You agree with most legal historians.

Ouch. You really know how to hurt a guy.

As it happens, I'm reading a terrific and his defense of the Constitution, after he left the presidency by Drew McCoy. He says that Madison was relatively untroubled by the notion of the Court ruling on at least those cases where the question was the constitutionality of Federal action vs. state prerogatives because of this understanding:

Federalist 39

[T]he proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.