Rethinking All the Rules

On the first day of our constitutional law class, a hundred or so of us assembled in a large classroom set up something like a theater, with two long rows of steps down to the platform and podium used by the teacher. It was the beginning of the second semester of our first year and we had survived thus far, so we were cocky enough to be talking noisily.

Then the professor came in: Charles Alan Wright, whose name graced various textbooks, who argued regularly before the Supreme Court, and who was particularly noted at the University of Texas law school for coaching the aggressive intramural football team the Legal Eagles. By the time he reached the front of the room, you could have heard a pin drop.

He looked around at us and then said, in a mild voice, “Would someone please give us the case of Marbury v. Madison?”

Now anyone in that room could have explained Marbury v. Madison. Hell, we learned about it in high school. Plus we were law students, legal nerds by definition.

For those who’ve forgotten high school or who aren’t from the US, it’s the case where Chief Justice John Marshall ruled that the Supreme Court can weigh in on the constitutionality of laws and actions by other branches of government. It’s a gimme question. Wikipedia has a good explainer on the case.

Yet everyone else in the room breathed a sigh of relief when Mr. Timmons raised his hand and gave the answer. That’s just how intimidated we were by the professor and by the importance of constitutional law.

Here’s the thing, though. The one thing that didn’t occur to any of us was to question whether Marbury was a good idea. I mean, it would have been like questioning the gospels in a Baptist Sunday school.

Professor Wright certainly didn’t raise the point. I doubt he ever questioned it. But after the last few rulings of the current Supreme Court, it’s pretty clear that allowing a group of unelected lifetime political appointees to be the sole arbiters of what’s constitutional is one of many flaws in our system. Continue reading “Rethinking All the Rules”