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Saturday, February 17, 2007

Congressman John Kline on Court Stripping

Ken Avidor and I went to cover the Republican Leadership Conference at the Bloomington today. Congressman Kline spoke at the event. As Kline was leaving, I took the opportunity to ask him about his co-sponsorship of the courtstripping bill on DOMA. I asked him whether he was familiar with Marbury v Madison and whether that case was wrongly decided. Kline was not familiar with Marbury v Madison. I said "and you are a congressman?" I followed up with a question about why Kline signed on to a DOMA only court stripping, rather than a broader court stripping bill. The video shows Kline's response.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights. (See Part V.)

For further reading: George L. Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-1815 (1981); Donald O. Dewey, Marshall v. Jefferson: The Political Background of Marbury v. Madison (1970).


Bil said...

Eva, could you please explain a little more about court stripping and the implications for DOMA for those of us whose eyes glaze over easily? And what we should DO as a result and how to contact Kline on same.
Thx in advance.

eric zaetsch said...

I suffer the same linguistic substantive deficit as bil.

What's up?

Congress sets court jurisdiction, and I believe in some non-citizen immigration areas judicial review is barred and the post-Warren courts have accepted this. I think there's a Burgher Court decision in that area, that way. The current AG, Gonzales, seems to think the courts should be narrowed to not second guess executive "counterterrorism" measures.

Courts set their own procedural norms, Congress sets federal court jurisdiction.

Is the question DOMA constitutionality, federal and/or state; and the moves afoot to amend constitutions as a more tightly nailed-down matter than facing DOMA constitutionality challenges?

What's the legislative situation there, 50 separate state statutes largely the same, plus something federal; more, or less? It was a wave of furor a few years back that I managed to largely ignore.

AND - What does the old war-mongerer care about such issues, really, either way? Is it playing for votes to the Koolaid crowd - for votes while disdaining them and having to do so? I though his issues were secular and more simple: Isreal now and forever; semper fi, and defense contractor affluence; and he should be happy enough with such a full plate.

Is he a rapturist? I see him left behind, with the livestock.

Bil said...

Yeah, what he said...