Have We Been Taught Marbury v. Madison Wrong?

One of the most striking parts of Kramer's The People Themselves has been his discussion of Marbury v. Madison. As someone who has taken numerous U.S. history classes and even an American legal history course in undergrad, this is the first time I was exposed to this considerably different interpretation of the significance (or lack thereof) of Marbury. It seems that Marbury is not revolutionary, but rather reactionary. Marbury did not create, much less expand, the power of judicial review (as we teach students). Instead, Marbury defended the departmental understanding of the power of judicial review against a perceived attack by politicians.

Although this is certainly a more complex understanding of Marbury, I'm upset a little upset to know that we have oversimplified this case to such a degree. It gets included with landmark decisions like Brown v. Board of Education and Roe v. Wade, when it is really on the same level of significance (at least in my mind).

Saturday Night Supreme Court Smackdown: Scalia v. Breyer!!!!!

Okay, not so much Wrestlemania as civilized discussion. But those interested in pinning down disagreements on constitutional interpretation might be interested in this combative discussion between Supreme Court associate justices Antonin Scalia and Stephen Breyer.

Serious students of Supreme Court methodology and judicial philosophy will likely be disappointed in this discussion. Both justices articulate their philosophies reasonably well, but speak in generalities that make make them both appear startlingly naive at times. Breyer, for instance, identifies affirmative action as a hard topic because of its challenges in terms of understanding precisely what "equal protection" means (i.e., is the Constitution color blind or does it allow legislators to promote equality through affirmative action policies?) but offers little in the way of guidance for how justices might solve this riddle. One is tempted at times to conclude, with Scalia, that his philosophy is just the substitution of modern moral outlook for key phrases in the Constitution. If "equal protection of the laws" in the Fourteenth Amendment merely means whatever we want it to mean--if it has no fixed meaning--then we are really at sea (Scalia's phrase).

But this raises the perennial problem of "fixed" meaning in legal texts. Consider Scalia's jaw-dropping statement that Brown v. Board of Education was an easy case. Originalist principles, Scalia argued, would lead one to conclude that segregated schools violated the "equal protection clause" of the Fourteenth Amendment. But his application of original meaning jurisprudence does not lead to this conclusion. Given that some schools were segregated in northern states at the time of the Fourteenth Amendment's adoption and that courts had consistently upheld race-based laws and reconciled them with "equal protection" requirements, any credible application of originalism would allow in 1954 for the continued segregation of educational facilities. Scalia warded this off by suggesting that the text was clear--equal protection of the laws means that you have to treat everyone equally. But formal legal equality was part of the segregationist regime in the United States, and formalist legal principles masked the inequality that is so apparent to us today.

I should note quickly that I am not commenting here upon those journalists who misquoted Scalia as suggesting that segregation was constitutional under the provisions of the Fourteenth Amendment (hat tip to Jack Balkin and Balkinization, linked above). But I think it ironic that misquoting Scalia actually gets closer to the true application of Scalia's jurisprudence. After all, Scalia is to be applauded for demonstrating the limits of his own jurisprudence. Certain laws, he says, may be appalling. Or just stupid. But that does not necessarily mean that they are unconstitutional. I agree. But, I fear, application of this judicial philosophy would have upheld school segregation in 1954. And Scalia ought really to come to terms with it.

Posner's Gauntlet

Eric Posner, son of famed legal scholar Richard Posner and a formidable legal scholar in his own right, has recently posted an essay on Slate about judicial restraint. Claiming as essentially proven the contention that judge's decide cases based on policy preferences, Posner suggests that judges ought to exercise more restraint than activism in deciding cases. Mark Graber over at Balkinization has taken exception to Posner's lack of scholarly reading on the subject, claiming that his rendering of the "best academic literature" on the subject is heavily weighted toward legal scholars without taking into consideration the best historical and political science literature on the subject. Graber further suggests that he has found copious evidence of antebellum belief in a regime of judicial supremacy.

I will be interested in reading Graber's work when it is out. Graber always does interesting work--his last book, for example, argued that Dred Scott was decided correctly--but his claim sounds a bit overdone. This is Graber's style, of course, so we will have to see what comes out of it.

But it might be worth looking at Posner's call for judicial restraint. The Rehnquist and Roberts courts have been, so far, some of the most activist in our history. They are, in a large sense, heirs of the Fuller and Warren courts. Can we even return to judicial restraint? Posner makes the call, but does not suggest how in a regime in which we accept judicial supremacy we can enforce anything like judicial restraint. It is difficult to see how it might work.

Gay Marriage, Equal Protection

On March 4, the California Supreme Court heard arguments in the _Marriage Cases_, a legal challenge to the state's ban on gay marriage. It is a complicated series of cases that raise fundamental questions about fairness and tolerance, as well as tradition and history. Legally it pits competing claims of equal protection against the state's police power--its right to regulate the health, welfare, and morals of its residents.

But the case is more complicated than even this. In our recent constitutional and legal past, the United States experienced a national backlash against the extension of civil rights to marginal groups. From the 1940s on, all three branches of the federal government have demonstrated a willingness to protect the rights of U.S. citizens against states and individuals who threatened them. Beginning with African-Americans and eventually extending to women, Asians, and other minorities, the language of rights claims became prominent in America.

The 1980s "Reagan Revolution" was the first concerted backlash against this new, rights-oriented culture. Its success was not precisely a rollback of the civil rights movement--after all, part of the civil rights movement's success was in changing the predominant culture to such a profound degree that even right wingers could no longer profess openly racist views and get away with it. Tolerance became normalized.

This did not please some. The interest group known as the "religious right" began expressing dismay that the dominant culture was *too* tolerant. Its tolerance was creating a culture of relativity that equated with permissiveness. The right already had political muscle, which it flexed powerfully in 1992, forcing President Bush I to shuffle to the right and abandon his own centrist and pragmatic policies and, for these sins, lose the election to Bill Clinton. The religious right pressed on, joining the "Republican Insurgency" of Newt Gingrich, and ultimately becoming a decisive factor in garnering electoral votes for George W. Bush in 2000 and 2004.

This was the context within which the subject of gay marriage became headline news. When the Massachusetts Supreme Court said in 2003 that the marriage law of its state could not exclude homosexual unions (because it violated the equal protection of the law to homosexuals), the reaction became nationwide. A number of states, including Georgia, sought to amend their constitutions to define marriage as being between one man and one woman. That these votes were often brought during key national elections (the presidential election year of 2004, for example) should surprise no one. Karl Rove helped organize the backlash to bring evangelicals to the polls at precisely the moment that Bush needed votes to defeat John Kerry. It should also be noted that the first stages of this backlash were in the mid-90s, culminating in the Congress passing the Defense of Marriage Act (DOMA) in 1996 (another election year). Bill Clinton signed it into law, and the Clinton campaign trumpeted this defense of marriage in ads on southern and midwestern radio stations while remaining mute about it in the national race. So much for the progressive Clintons.

Which brings us to California. It is true that state law, not the state Constitution, bans gay marriage. But it also extends all the benefits of marriage that the state can provide to gay couples in the form of "domestic partnerships." The only difference between a domestic partnership and a marriage in California is that the domestic partnership will not be recognized by other states that prohibit gay unions. This has nothing to do with California law, but rather with DOMA (mentioned above). DOMA provided that no state could be compelled to recognize a marriage from another state that was not between a man and a woman. Whether this is a legitimate exercise of the full faith and credit clause has not been scrutinized judicially.

Does the California law violate equal protection of laws? The case recalls the question of segregation that was presented during the famous cases of Plessey v. Ferguson (1898) and Brown v. Board of Education (1954). In Plessey, the high court ruled that separate but equal facilities for blacks and whites were not a violation of the equal protection clause of the Fourteenth Amendment. If blacks chose to view it as a badge of their second class citizenship, opined the Court, that was their choice, not the reality. In Brown, famously, the Court said the reverse: that separation was inherently unequal.

Is it true with marriage? Do homosexual couples in California suffer from not being able to call their union a "marriage," even if state law extends them the same privileges as married couples under a different name? Is it an invocation of the discredited "separate but equal" standard?

I'll avoid making a direct answer. Suffice it to say that the issues are even more complex than I let on. And the fact that California's story is wrapped up in a national narrative makes it all the more interesting. We are witnessing, perhaps, one of the great constitutional struggles of our day that will be as trenchantly written about by later generations as was the 100 year struggle for civil rights.