Marbury vs. Madison was wrongly decided

by Neil Rickert

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.


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.


35 Comments to “Marbury vs. Madison was wrongly decided”

  1. On the practical level, it seems that part of the problem is that the process of choosing justices is way too partisan. Legislators can sometimes be instruments of ideology and the tyranny of the majority, and courts have a proper role to play in enforcing basic rights against that sort of thing. However, the shenanigans over the most recent appointments have resulted in the effective capture of the SCOTUS by one party. I don’t know how fix the appointment process (I don’t know how we do it here in Canada, put it seems to attract far less controversy).

    Liked by 3 people

    • Steve, You bring up some great points. Nevertheless, the Supreme Court did not summarily make abortion illegal. It simply, according to the Bill of Rights, returned the question of abortion back to the states. The Dobbs ruling was one of those rare times in human history where a government relinquished power and gave it back to the people.


      • So you’d be okay giving the power back to the people in the form of a referendum on abortion?

        Liked by 1 person

        • Pink, Some states have referendums, but the US federal government doesn’t work that way. Abortion can become the law of the land if passed by the House and Senate and approved by the President. But such a law can be overturned by subsequent governments. To establish abortion as a human right requires an amendment to the US Constitution. An amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

          As you can see, it is exceedingly difficult to amend the US Constitution.

          I believe that abortion is the cold blooded murder of an unborn human being and that without the right to life, all other rights are without value. Nevertheless, the law is the law and Christians are law abiding people. Going forward, if abortion were legalized, Christians would work to have the law changed democratically.


          • You said what mattered was the will of the people, so my question is, if the will of the people is abortion, do you accept that?

            My point is your arguments are all entirely specious. Your interest is your religion, not the legal or legislative parameters that govern a country. You only appeal to those things, generally in a misleading way, if they support your religion.

            Liked by 3 people

          • Politics is and has always been, about persuasion. Evil is always afoot and after 50 years, the evil of abortion was dealt a mighty blow. But the battle isn’t over until abortion is illegal and every human life has value.


          • In other words you confirm you have no interest in legal or legislative parameters except using them as a façade to prop up your religion.
            Fascinating in the case of abortion considering for most of Catholic history the concept of fetus inanimatus and abortion were perfectly acceptable under many Popes.

            Liked by 2 people

          • Pink, Asked and answered. Pay attention.


          • I asked and you evaded. Your word games only fool you. They’re too simplistic to fool anyone else. So why don’t you stop being annoying and go back to the depths of religious disinformation you generally frequent?

            Liked by 3 people

          • I hate to break it to you but Christian’s are no more law abiding than anyone else in fact just the opposite. Look at the sins committed against children by pastors, I could go on but why ?Hypocrisy .

            Liked by 2 people

          • The Christian Red States are much more prosperous and peaceful than the Godless Blue states. In my Red State Christian neighborhood I don’t need to lock my doors and the greatest problems are Terrible the Cat and Reba the hound, plus all the mosquitoes.

            Liked by 1 person

          • “The Christian Red States are much more prosperous and peaceful than the Godless Blue states”, Are you sure?


            10 US states/territories with highest per capita income:

            Washington, D.C, Massachusetts, Connecticut, New Jersey, Maryland, New York (state) , Washington (state) , New Hampshire, Colorado, Virginia

            10 US states/territories with lowest per capita income
            Tennessee, Indiana, Oklahoma, Idaho, Kentucky, Louisiana, Alabama, New Mexico, West Virginia, Arkansas, Mississippi

            10 US states/territories with highest intentional homicide rates:
            District of Columbia, Puerto Rico, Louisiana, Missouri, Mississippi. Arkansas, South Carolina, Alabama, Tennessee, Illinois

            10 US states/territories with lowest intentional homicide rates:

            Utah, Wyoming, Rhode Island, Hawaii, Oregon, Massachusetts, Vermont, Idaho, Maine, New Hampshire

            Liked by 1 person

          • NOTICE (to SOM):

            Your comment begins with a false assertion. And it is off-topic.

            Future comments by you will be moderated.

            Liked by 1 person

          • The Christian Red States are much more prosperous and peaceful than the Godless Blue states.

            You are more deluded that I thought!! No wonder you write some of the things you do.

            Liked by 1 person

          • This comment is shockingly outrageous and so typical of Christian radicals doing their best to dictate and destroy democracy and the country that WAS a beacon in the hill. This is why there will be no reconciliation between people who have such a closed mind and the rest of us. Remember Voltaire’s famous quote. Google it.

            Liked by 3 people

  2. With a simple understanding of the Constitution and the principle of hierarchy, it is clear that the Supreme Court is the final arbiter of what is constitutional.

    1. The US Constitution divides government into its three constituent parts, the execution, legislative and judicial branches. This is called the separation of powers.
    a. the executive branch enforces the law
    b. the legislative branch makes the law
    c. the judicial branch acts as arbiter of the law when a law is contested by opposing parties

    2. The US Constitution is the fundamental law of the land. Therefore all law promulgated within the United States must be consistent with the US Constitution.
    3. It follows from the principle of hierarchy that the Supreme Court must be the final, authoritative arbiter when the constitutionality of a law is contested.
    4. If the executive or legislative branches were to arbitrate the constitutionality of a law, that would constitute a violation of the separation of powers.


    • 3. It follows from the principle of hierarchy that the Supreme Court must be the final, authoritative arbiter when the constitutionality of a law is contested.

      No, that does not follow at all.

      Liked by 1 person

      • Neil, it does follow. Let me explain the principle of hierarchy which comes from Aristotle. Hierarchy can be explained using military rank: private to general. The rank of private possessing the least power and the rank of general possessing the most power. The court system is set up the same way. Municipal courts possessing the least power, next come the district appeals courts, then the Supreme Court. Disputes that reach the Supreme Court have already been adjudicated by the lower courts. A more powerful court may overturn a ruling made by a lower court.

        The principle of hierarchy in the US courts is not a theory. It is the very nature of the US legal system.


        • Neil, it does follow.

          No, it does not follow. You have given your opinion, but it is only an opinion. There is no deductive inference there.

          Let me explain the principle of hierarchy which comes from Aristotle.

          Yes, we get it. You are a right wing authoritarian extremist. You want to force your opinions on everybody.

          The US Constitution was not written by Aristotle. The authors of the constitution were opposed to your kind of authoritarianism.

          Liked by 3 people

    • It is far from obvious that relenquishing an issue to the states is “giving power back to the people”. State legislatures are just as capable of being tyrannical as the federal one (and I think several of them are being at this moment).

      Liked by 3 people

  3. SOM wrote: “Sooner or later you must come to grips with reality …”

    (I think most will see the irony in this statement.)

    Liked by 1 person

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