Back in 1973, when Roe v. Wade was decided, I had a mixed reaction. On the one hand, I liked the idea that women should be able to make their own choices on abortion. On the other hand, it seemed to me that the court had made a mistake and that this was a serious overreach.
Part of my concern, at that time, was that the states were considering the question. And Roe v. Wade shutdown those normal political processes whereby a people can settle such hard questions. For the main part, the American people came to accept Roe v. Wade, although there was some political objection which seemed mainly religious. But now, in its recent Dobbs v. Jackson decision, the court has thrown out the original Roe v. Wade decision and has once again short circuited normal political processes. This has thrown the nation into turmoil.
I’ll note here, that I am not a lawyer. The USA was established as a system of representative government. The legislators were supposed to be ordinary citizens. It was never intended as a system of rule by lawyers. So ordinary people ought to have a say in government.
Marbury v. Madison
Marbury v. Madison was an historic case. It was not so much the question being resolved that made it historic. It was historic, because it is the case where the Supreme Court in effect claimed the right to be the final decider of what is constitutional. And it is that aspect of the case that I am questioning.
As far as I can see, the constitution does not give the supreme court the authority to decide what is constitutional.
In the last few weeks, the court has made several decisions that I consider questionable. Apart from the Dobbs v. Jackson case, it has decided some other case in ways that seem contrary to the establishment clause of the first amendment (sometimes described in terms of the separation of church and state). The court has used the freedom of religion clause to give preference to Christian ideas in a way that seems to me to be in conflict with the establishment clause.
So perhaps it is time to re-evaluate whether the court can be trusted as the final arbiter of what is constitutional.
Bad decisions
There are a number of court decisions that strike me as wrong.
Several of these have had to do with the 2nd amendment. In my view, the court has wrongly interpreted that amendment. For many years, some of the states have been regulating the use of guns, with public safety in mind. And this was long seen as consistent with the 2nd amendment. However, in recent years, the court has thrown out some of that regulation and has made open carry the prevailing practice. This seems to go far beyond the intention of the 2nd amendment.
Similarly, I see Buckley v. Valeo as a bad decision. This was a decision where the court ruled against the FEC in its attempts to limit the amount of money spent on election campaigns. The court concluded that money is speech, and ruled against the FEC on the grounds of freedom of speech. This just seemed wrong. The FEC was attempting to be very even handed. I can see a freedom of speech issue if the regulation favored one side. But they didn’t. The result now does favor the rich. So it seems that the court decision has harmed free speech. Along the same lines, I saw the Citizens United v. FEC case as wrongly decided. This was the case where the court, in effect, said that corporations are people and deserve the same free speech rights. And again, this decision has seriously biased the system toward the wealthy.
The recent EPA decision
In their recent decision in West Virginia v. EPA, the court appears to attack the idea of environmental protection. Here’s an analysis of this decision by a lawyer:
This analysis suggests that the court has exceeded its authority, as granted by the constitution.
Summary
Back to my title comment about Marbury vs. Madison. In that decision, the court claimed the right to decide what is constitutional. In its recent cases, the court has clearly demonstrated that it is not worthy of this right of final decision.
The Heretical Philosopher 