Whitaker Thinks Marbury v Madison Was Wrongly Decided

Whitaker Thinks Marbury v Madison Was Wrongly Decided November 10, 2018

Ruth Marcus calls new Acting Attorney General Matt Whitaker a crackpot and she’s dead right. Here’s just one example she cites. Whitaker thinks that Marbury v Madison was wrongly decided and that the Supreme Court does not get to decide what laws or actions are constitutional or not. Seriously.

Matthew G. Whitaker, installed in the job by President Trump to replace Jeff Sessions, was asked in 2014, during an ill-fated run in the Republican senatorial primary in Iowa, about the worst decisions in the Supreme Court’s history. Whitaker’s answer, to an Iowa blog called Caffeinated Thoughts, was chilling.

“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

This makes him far more radical than even Clarence Thomas, who is the most extreme justice we’ve ever had on the court. And his opinion is ludicrous and flatly contradicted by the men who wrote the Constitution. I’m sure Whitaker claims to be an originalist, so let’s go directly to the original source that established the public meaning of the Constitution, the Federalist Papers. In Federalist 78, Alexander Hamilton could not be more clear that not only is the power to overturn unconstitutional acts part of the judicial power, but that without this power, there is no way to protect the rights laid out in the Constitution.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

That doesn’t make the Supreme Court the “final arbiter” of constitutional issues. Ultimately, that power resides with the people, who can amend the Constitution if they are so inclined. But it does clearly establish judicial review as part of the judicial power. And no one who considers themselves and originalist could possibly make a serious argument to the contrary without massively contradicting themselves. This opinion isn’t just wrong, it proves Ruth Marcus right — the man is a crackpot.

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