SLATE’s Dahlia Lithwick is usually both entertaining and perceptive, but sometimes, as here, she can be as dumb as her subjects whom she calls dumb. (For another discussion of Dahlia at considerably less than her best, see here.)
I have no problem with her rather forceful disagreement with the bill, H.R. 3920, submitted by Rep. Ron Lewis (R, Ky) that would allow Congress, by two thirds vote, to overturn Supreme Court decisions that declare acts of Congress unconstitutional. But I believe she steps into it when she goes on to say:
The best evidence that congressmen shouldn’t get into the business of interpreting the Constitution? Ron Lewis pithily arguing that just because Marbury v. Madison is 200 years old and the cornerstone of modern judicial review power, it’s not in the Constitution so it’s not all that important.
Congressmen shouldn’t interpret the Constitution? They take an oath to support and defend it, but they shouldn’t interpret it? If they took that argument seriously they would have a much easier time of it, since they could then freely vote for legislation that, if they were forced to interpret the Constitution, they would regard as unconstitutional. And if congressmen shouldn’t interpret the Constitution, I assume Dahlia thinks presidents shouldn’t do so either. Maybe only judges should take the oath. But that might be awkward, since under the “living Constitution” she seems to favor “the” Constitution is a continuously moving target. (Editorial Emendation: You also have to admit that swearing to uphold and defend a document that means whatever you say it means is a little odd.)
Nor is her comment about Marbury much better. If Dahlia thinks Rep. Lewis dumb as a post for not genuflecting before Marshall’s opinion, I wonder what she would make of Prof. Sandy Levinson, by common acclaim one of the brighter Con law professors around, who wrote recently that “Marshall’s opinion in Marbury is no more defensible than is the per curiam opinion (or the concurrence) in Bush v. Gore“? [65 Law & Contemp. Probs. 7 (Summer 2002)] She might also want to take a look at another of Sandy’s articles, “Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn’t Either,” 38 WAKE FOREST LAW REVIEW 553 (2003).
I do not cite these articles to argue that Sandy, or Rep. Lewis for that matter, is right about Marbury. But it is funny how for many commentators, and not a few judges, the Constitution is “living” until they come upon some issue where all of a sudden it’s written in stone, and stone cold dead.