Thursday, February 26, 2009

Marbury v. Madison Still Matters.

An anniversary went mostly unnoticed earlier this week, the 206th anniversary of Marbury v. Madison, a landmark decision of the early United States Supreme Court.

I was reminded of this by a good essay in the current issue of Newsweek. You can find it here.

When conservatives attack the Supreme Court, or the federal courts in general, their reasoning usually is derived from a fundamental disagreement with the Court's ruling in this long-ago case. Many, though by no means all conservatives, favor a legal system more like Great Britain's, where even the highest court in the land is subordinate to the legislature. That has not been the American system for 206 years, but some conservatives have enormous capacity for resisting change.

I've often said that the conservative penchant for personal Constitutional interpretation is derived from the Protestant Reformation's tenant of personal Biblical interpretation. That may be okay for religion, but it doesn't work for law.

The Newsweek article also makes this point: "...for besieged congressional Republicans, the history of the embattled Federalists is ... instructive: the Federalists' position as unyielding opponents of Jefferson's administration led to their extinction as a political party."

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