Friday, December 5, 2008

Marbury, Madison, and Obama

I haven't been following the obscure attack on Obama's qualification as a natural born citizen, but I'll go ahead and say that regardless of the evidence, the Supreme Court shouldn't intervene.

It seems odd to say that even if a petitioner produced irrefutable evidence that a Presidential candidate was not born to US parents nor born in the US (and no one has done any such thing) that the Supreme Court should still let them become President, but that's the fact of the matter. One of the things I found fascinating in Rehnquist's book on the Court was his assertion that, as Scalia succinctly stated in Herrera, even if the Supreme Court thinks somebody is innocent, that is not grounds for overturning their case. This isn't from some insane view that courts are never wrong. It's from a view that the Constitution vests certain rights in the Supreme Court and determining whether or not somebody is actually innocent is not among them. To put it another way, if we assert that the Court should acquit or request retrial on persons who are actually innocent then we need either to build up a huge body of law to determine the evidentiary policies of Supreme Court retrials of fact or to just let the Justices do whatever they feel is right.

This cuts to the core of the Marbury v Madison decision. Many people, including a fair number of lawyers, think that Marshall set down in that case the ability of the Supreme Court to overturn laws because they violated the Constitution. This case is, in fact, the basis for the modern court creating new rights out of strained "interpretations" of either a vague clause in the Constitution or, in the case of Griswold, a vague feeling about the overall mission of the Constitution. It doesn't really say any such thing. Marbury sought to have the Court force Madison to present a commission made by President Adams to him. There was an act of Congress that provided that the Supreme Court could do exactly that. The problem was that the Constitution only gave the Supreme Court original jurisdiction in a small number of cases, and this wasn't one of them. They did overturn a piece of legislation, but it is important to note that what that legislation did was to grant the Supreme Court power the Constitution withheld from it.

What Marshall said was not "This statute is unconstitutional and the Court has the right to ignore any unconstitutional statutes", it was "This statute grants the Court power the Constitution doesn't give it, and the Court refuses to execute power not granted it by the Constitution." This is not to say that the Court refusing to uphold unconstitutional laws is itself uncontitutional. That's a debatable issue, but it's not where I want to go. What I'm saying is that Marshall didn't actually go that far.

Where Marshall did go, though, is far enough to say that the Court shouldn't today take it upon itself, even if it's abundantly clear that Obama is not a natural born citizen, to decide if he becomes President. There is nothing in Article III that grants the Court the power to arbitrate who gets to serve at the top of the executive branch.