It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.— Chief Justice John Marshall
The above quote is from the watershed case Marbury vs. Madison. From Streetlaw.org:
“At the end of President John Adams’ term, his Secretary of State failed to deliver documents commissioning William Marbury as Justice of the Peace in the District of Columbia. Once President Thomas Jefferson was sworn in, in order to keep members of the opposing political party from taking office, he told James Madison, his Secretary of State, to not deliver the documents to Marbury. Marbury then sued James Madison asking the Supreme Court to issue a writ requiring him to deliver the documents necessary to officially make Marbury Justice of the Peace. The Marbury v. Madison decision resulted in establishment of the concept of judicial review.”
There’s been a lot of talk for a long time (I’ve noticed it mainly in the Republican party) about so-called “Activist” Judges. The idea being that a judge who makes a ruling with political impact must necessarily have been acting to further her own political interests. Notably, this complaint is only made about judges who make decisions that the politician disagrees with.
As a recent example, Newt Gingrich posted the following on his website in response to the Prop. 8 ruling:
“The Constitution of the United States begins with ‘We the People’; it does not begin with ‘We the Judges’. Federal judges need to take heed of that fact. Federal judges are substituting their own political views for the constitutional right of the people to make judgments about the definition of marriage. The country has been here before. In 1856, the Supreme Court thought it could settle the issue of slavery once and for all and impose a judicial solution on the country. In 1973, the issue was abortion and once again a Supreme Court thought that it could impose a judicial solution on the country once and for all. Judicial solutions don’t solve contentious social issues once and for all. Should the Supreme Court fail to heed the disastrous lessons if its own history and attempt to impose its will on the marriage debate in this country by affirming today’s Ninth Circuit decision, it will bear the burden of igniting a constitutional crisis of the first order.”
So much insanity. In case you blinked, Newty just compared the Prop. 8 decision to the Dredd Scott case. (Am I wrong on this? Dredd Scott was 1857.) The Dredd Scott case basically upheld slavery under the constitution as a “state’s right.” That is, every state had the right to decide whether to abolish or maintain slavery.
This decision was one of many factors that lead to, gee, what was that thing called, The Civil War. In which six to seven hundred thousand Americans died.
Note again, Newt ends his unimaginably insane note by saying, “Should the Supreme Court fail to heed the disastrous lessons if its own history and attempt to impose its will on the marriage debate in this country by affirming today’s Ninth Circuit decision, it will bear the burden of igniting a constitutional crisis of the first order.”
First order means nothing bigger. The only constitutional crisis of the first order was The Civil War. Is Newt calling for states to secede over gay marriage? Is he championing a bloody interstate battle, resulting in untold deaths of American citizens, in order to squelch the rights of the oppressed few?
PS. Dear Newt: There are people who actually read what you write and pay attention to what you say. Oh how I wish that didn’t have to be true.
UPDATE: Additional constitutional crises of the first order might include the circumstances that lead to the current draft of the constitution and the collapse of the articles of confederation. Not even things like the Patriot Act or the Monroe Doctrine have had anywhere near so great an impact as the division over slavery and the subsequent secession of southern states. Newt is a self proclaimed historian. He should know this.