# American Civil War/ Reconstruction amendments **URL:** \ **Category:** Factual Questions\ **Created:** [July 23, 2025, 11:41pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248 "2025-07-23T23:41:16Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [July 26, 2025, 6:18pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/41 "2025-07-26T18:18:47Z")
> [@steronz](#): > > I don’t know why SCOTUS wouldn’t consider striking it (or rather, why affected parties might ask). The court has invented powers for itself numerous times over our history, why not invent this one as well? There seems to be a broad misunderstanding in this thread about the powers of the Supreme Court and what it can do. The essential function of the Supreme Court is to interpret the Constitution and adjudicate challenges to and conflicts with statute law, case law, regulations, and executive orders within the framework of the Constitution including amendments thereof. It has no authority to strike down amendments that have been ratified or adopted or otherwise alter the Constitution so the question of the o.p. of a claimant challenging the validity of the “Reconstruction Amendments” in court is a legally nonsensical question even if there is some question as to the ‘legitimacy’ of the ratification process by one or more states. If the process of ratification was irregular it should have been challenged at that time because once ratification is complete and the amendment is adopted as a part of the Constitution there are no takebacks or process for challenge, and the courts, including the Supreme Court, have no authority to do so. The Supreme Court has had to rule on issues beyond the textual scope of the Constitution and does so based upon the “penumbra” (implied rights) as explained in the decision of _Griswold v. Connecticut_, often because of technological developments, changes in public mores and standards, or differences in the interpretation of social compacts such as marriage. Many of these decisions can be legitimately questioned because their scope is not only beyond the text of the Constitution but also not covered in the writings of the authors (_Federalist Papers_ and correspondence) and so the extension of ‘Constitutionality’ is subject to interpretation of what represents the intent of ‘maximal liberty’ of the Constitutional framework. The ‘Originalist’ line of legal philosophy argues that any extension beyond what is in the text is not legitimate by default, and an extreme line of that thinking is that amendments beyond the _Bill of Rights_ (aside from the administrative ones such as XII, XVII, XX, et cetera, which are generally not held to criticism) should be nullified because they do not fall within the original intent of the authors but of course many of those men were slaveholders who vigorously sought to protect that institution, most of them had little if any regard for the rights of women, and virtually all of them believed in the moral and ethnic superiority of white Europeans over the ‘savage’ natives, Africans (even freedmen), or ‘Celestials’, so I think we can take such a view with a jaundiced eye regarding their supposed egalitarianism and support for ‘democracy’ as strictly limited to the class of landed white men. Stranger ---
**Author:** ![steronz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steronz/32/11765_2.png) [@steronz](https://boards.straightdope.com/u/steronz)\ **Post date:** [July 26, 2025, 6:40pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/42 "2025-07-26T18:40:42Z")
I think the powers of the Supreme Court have changed over time, often granted by the court to itself, and any assertion as to what they can clearly do or not do at the fringes of precedent is wishful thinking. Especially in 2025. But I’ll let the constitutional scholars hash this one out. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 26, 2025, 6:53pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/43 "2025-07-26T18:53:07Z")
I think we may have hit the Gödel Incompleteness Theorem limits on logical self-consistency with this subject. ---
**Author:** ![ASL\_v2.0](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asl_v2.0/32/3525_2.png) [@ASL\_v2.0](https://boards.straightdope.com/u/ASL_v2.0)\ **Post date:** [July 26, 2025, 7:31pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/44 "2025-07-26T19:31:33Z")
> [@steronz](#): > > …and the amendment is effectively nullified. It already is. It has been for most of its history. It’s why, for example, the Civil Rights Act of 1964 had to be grounded in the Commerce Clause. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [July 26, 2025, 7:50pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/45 "2025-07-26T19:50:25Z")
> [@steronz](#): > > I think the powers of the Supreme Court have changed over time, often granted by the court to itself, and any assertion as to what they can clearly do or not do at the fringes of precedent is wishful thinking. How exactly have “the powers of the Supreme Court have changed over time” and when were they “granted by the court to itself”? Stranger ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [July 26, 2025, 7:53pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/46 "2025-07-26T19:53:38Z")
Marbury v. Madison was the big one, of course. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 26, 2025, 8:23pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/47 "2025-07-26T20:23:03Z")
The Constitution is what the Supreme Court says it is. Period. Pretending that what the Court says and how the Court decides doesn’t change with the times is a waste of breath. Every observer knows that and has since the 19th century. Obligatory quote: “[N]o matter whether th’ constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns.” I’ve argued that the entire history of the Court since FDR comprises a systematic reversal of everything the Court ruled earlier. That’s only accelerated in recent years, with the Court reversing that set of reversals. The reasoning the majority uses also contradicts the way earlier Courts conducted themselves. No American laws covered secession and armed rebellions. After the fact, Congress - supported by the Courts - flat out invented retroactive laws to legitimatize their actions. Then and later everybody just changed the subject whenever questions arose. Legalized illegality. Small wonder why some people felt they could challenge these decisions in later eras. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [July 26, 2025, 8:35pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/48 "2025-07-26T20:35:51Z")
> [@Chronos](#): > > Marbury v. Madison was the big one, of course. [_Marbury v. Madison_](https://supreme.justia.com/cases/federal/us/5/137/) wasn’t so much the Supreme Court ‘granting’ itself powers of judicial review than explicitly clarifying that the Constitution was the source of all federal authority and law (“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;…”). [Article III](https://www.law.cornell.edu/constitution/articleiii), which establishes the Supreme Court, doesn’t actually specify anything about its composition or procedures beyond stating, > _The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish._ The authority for judicial review follows from the explicit and plenary authority of appellate jurisdiction assigned in Section 2 (and technically original jurisdiction as well, although except for impeachments the Supreme Court has almost never operated as a trial court): > _In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make._ This is a change only insofar as it clarifies the role of the court. It doesn’t assign itself new powers, and give thatches warless than fifteen years after the drafting and adoption of the Constitution is hardly “changed over time”. > [@Exapno\_Mapcase](#): > > The Constitution is what the Supreme Court says it is. Period. Pretending that what the Court says and how the Court decides doesn’t change with the times is a waste of breath. Every observer knows that and has since the 19th century. Obligatory quote: “[N]o matter whether th’ constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns.” That is certainly true. “Constitutionality” is whatever the Supreme Court has interpreted as it as being, and they’ve made some pretty bad decisions (and reversed good ones) but whatever the Supreme Court is saying today is how the law is interpreted. The notion of infallibility or impartiality of the Supreme Court has been given lie on a number of occasions throughout history, and as much as people revere the Constitution as a founding document of nascent (sort-of) democracy or the Supreme Court as an institution, it suffers from the same weakness of any governance; the best that can be said of it is it lays out some basic principles with a procedural resistance to arbitrary change but it certainly isn’t able to ‘protect democracy’ against bad faith interpretations of ill-intended laws. And, as you note, this isn’t just in the service of one political party; ‘both sides’ have increased authority of the executive and shielded the legislature from culpability for bad acts when it suited them. (And I would argue this goes bad much further than just FDR.) But the Supreme Court has no authority to rule on flatly striking an amendment that has been ratified and adopted, and certainly not just because a state decided to renege on ratification after the fact; it has to chop away at it by making narrow or obtuse interpretation of laws falling under the authority granted by that amendment, or by expanding the interpretation of a clause or amendment far past what it was obviously intended for i.e. the Interstate Commerce Clause which has been interpreted to allowed the federal government to insert itself into all manner of state-level affairs. Stranger ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 26, 2025, 9:20pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/49 "2025-07-26T21:20:07Z")
I’d always heard that technically _Marbury v. Madison_ was about that Congress couldn’t arbitrarily change the boundaries of the three branches of government by legislative act in contradiction to what arrangement the constitution spelled out; even if it was an attempt by Congress to actually grant powers to the Supreme Court. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 26, 2025, 10:13pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/50 "2025-07-26T22:13:08Z")
> [@Stranger\_On\_A\_Train](#): > > [_Marbury v. Madison_](https://supreme.justia.com/cases/federal/us/5/137/) wasn’t so much the Supreme Court ‘granting’ itself powers of judicial review than explicitly clarifying that the Constitution was the source of all federal authority and law People can differ on what Marbury v Madison meant. Nevertheless, none of the Founders apparently thought that the judicial branch was co-equal with the other two. At the time, the notion that the Court could declare an act of Congress as unconstitutional was unprecedented and therefore extremely controversial. Moreover, Marbury’s case was essentially a political one, as John Adams and Congress were trying to pack the court system with a new set of lower judges at the last moment before Jefferson took office. Marshall split the baby, saying both sides wouldn’t get what they wanted. This established judicial review, which is nowhere in the Constitution, made the judiciary the equal branch now taken for granted, and additionally asserted that amendments rather than legislation were needed to alter the text. Rather sweeping. It may not have been good law, as others later argued, but when you’re inventing a political system some slippage must be expected. (Parenthetically, Marshall was a Federalist, also appointed by Adams just before he left office. The Federalists were livid at this seeming betrayal. However, Jefferson was an opponent of judicial review, so he was no fan or either the decision or Marshall. Demonstrating the neutrality of the Court while elevating it was a masterstroke.) > [@Stranger\_On\_A\_Train](#): > > But the Supreme Court has no authority to rule on flatly striking an amendment that has been ratified and adopted, and certainly not just because a state decided to renege on ratification after the fact Probably true since the Court has said in the past this is a political question outside their jurisdiction. But only probably as the current Court rules by politics rather than precedent. I don’t feel comfortable striking any conceivable issue or outcome at this point. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [July 26, 2025, 10:46pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/51 "2025-07-26T22:46:46Z")
> [@Exapno\_Mapcase](#): > > No American laws covered…armed rebellions. Well that’s not true. The constitution expressly empowered Congress to call forth a state’s militia to “suppress insurrections”, and the constitution specifically defined the crime of treason. > [@Exapno\_Mapcase](#): > > none of the Founders apparently thought that the judicial branch was co-equal with the other two. At the time, the notion that the Court could declare an act of Congress as unconstitutional was unprecedented and therefore extremely controversial. That’s also not true. > [@](#): > > The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters.[1](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025168) There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions.[2](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025169) Practically all of the Framers who expressed an opinion on the issue in the Convention appear to have assumed and welcomed the existence of court review of the constitutionality of legislation.[3](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025170) Alexander Hamilton argued in favor of the doctrine in the _Federalist Papers_.[4](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025171) In enacting the Judiciary Act of 1789, Congress explicitly provided for the exercise of the power,[5](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025172) and in other legislative debates questions of constitutionality and of judicial review were prominent.[6](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025173) Early Supreme Court Justices seem to have assumed the existence of judicial review.[7](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#ALDF_00025174) [https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE\_00013513/](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/) ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 27, 2025, 2:46am UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/52 "2025-07-27T02:46:16Z")
Ron Chernow, in his doorstop biography of Hamilton, has this to say on p. 299. > Throughout his career, he showed special solicitude for an independent judiciary, which he thought the most important guardian of minority rights but also the weakest of the three branches of government. … In number 78, Hamilton introduced an essential concept, never explicitly mentioned in the Constitution: that the Supreme Court should be able to review and overturn legislation as unconstitutional. At Philadelphia, delegates had concentrated on the question of state versus federal courts, not whether courts could invalidate legislation. … When Hamilton wrote these words, state judges had taken only the first tentative steps in nullifying laws passed by their assemblies. Federalist 78 was an argument of the necessity for passing the Constitution as written; an intelligent screed but a screed nonetheless. The Federalist Party took its name from these writings, which emphasized the superiority of a federal government. No. 78 was an exercise in positioning the federal government over the states with the constitution - though always expressed as a “limited constitution” for political reasons - as the font from which all power flowed. That _Marbury v Madison_ roiled the parties and the politicos is evident from its position in history. It codified principles that had been expressed by some people but had previously not been formalized by the government - a mini-constitution in that way. Marshall, beginning 34 years as Chief Justice, laid down a platform of federalism that survived despite the Federalist Party disintegrating. I think that the cited passage underplays the significance of that, and that none of the details truly contradict my brief summary. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [July 27, 2025, 12:14pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/53 "2025-07-27T12:14:55Z")
> [@Exapno\_Mapcase](#): > > That _Marbury v Madison_ roiled the parties and the politicos is evident from its position in history. It codified principles that had been expressed by some people but had previously not been formalized by the government From my cite above > [@](#): > > [5](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/#essay-5)In enacting the Judiciary Act of 1789, ch. 20, 1 Stat. 73, Congress chose not to vest federal question jurisdiction in the federal courts but to leave to the state courts the enforcement of claims under the Constitution and federal laws. In Section 25 of the Judiciary Act (1 Stat. 85), Congress provided for review by the Supreme Court of final judgments in state courts (1) where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; (2) where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity; or (3) where is drawn in question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed thereunder. § 25, 1 Stat. 73, 85–86. [https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE\_00013513/](https://constitution.congress.gov/browse/essay/artIII-S1-2/ALDE_00013513/) So, again, the concept of the Supreme Court having authority to declare a law unconstitutional did not arise solely from the Marbury decision, and you are simply incorrect to say that the government hadn’t previously addressed the issue. I’d note, too, that the government _could have_ reacted to Marbury by passing a law which amended the jurisdiction of the court. It did not. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [July 27, 2025, 3:55pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/54 "2025-07-27T15:55:26Z")
> [@Exapno\_Mapcase](#): > > Nevertheless, none of the Founders apparently thought that the judicial branch was co-equal with the other two. At the time, the notion that the Court could declare an act of Congress as unconstitutional was unprecedented and therefore extremely controversial…This established judicial review, which is nowhere in the Constitution, made the judiciary the equal branch now taken for granted, and additionally asserted that amendments rather than legislation were needed to alter the text. Rather sweeping. Although the modern separation of powers by establishing “co-equal branches of government” is a somewhat modern interpretation it has its origins in Montesquieu, Madison does discuss “the necessary partition of power among the several departments” in Federalist Papers #47 and #51, so the notion was certainly in the minds of at least some of the authors, and Article III makes it clear that the Supreme Court has plenary authority to decide questions of appeal “both as to law and fact” as well as original jurisdiction over the executive branch, i.e. the ability to set aside orders and prosecute actions that they find to be illegal. “Judicial review”, i.e. determining the applicability of laws, orders, and regulations in terms of their conformance with powers and protections assigned in the Constitution (including amendments) is inherently part and parcel because the authors knew that Congress would almost certainly pass laws that would conflict with prior law or the Constitution, and that presidents would issue orders in conflict with Congress or the Constitution. The founders did not want a ‘common law’ system that was just based on historical precedent and whatever the leader at the time wanted to do and made it clear that the Constitution was the anchoring document for all fundamental interpretation of law (to the extent that some of them didn’t see any value in the Bill of Rights, and a few felt that there shouldn’t even be codified federal laws aside from the Constitution, presumably leaving every judge to somehow intuit intent and create their own procedures, I guess). > [@Exapno\_Mapcase](#): > > Probably true since the Court has said in the past this is a political question outside their jurisdiction. But only probably as the current Court rules by politics rather than precedent. I don’t feel comfortable striking any conceivable issue or outcome at this point. I wouldn’t put any amount of money on what this Supreme Court will decide it will or will not do in the future but so far while they’ve certainly taken the tack of casually overthrowing prior court decisions, they haven’t actually extended their authority in any material way and in several instances claimed to not have authority over issues that former Supreme Courts have taken explicit positions on, such as the couts not being able to try or hold accountable a sitting President for crimes committed while engaged in their duties. In essence, the conservative majority has acted to weaken the Supreme Court and hand more power over to the executive rather than expanding their own domain. On what basis the Supreme Court could ever decide that it is in their power to strike a constitutional amendment is unclear and wholly without precedent. Stranger ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [July 27, 2025, 6:33pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/55 "2025-07-27T18:33:43Z")
The Judiciary Act explicitly “provided for review by the Supreme Court of final judgments in state courts,” including when they ruled that a law was “repugnant to the constitution” as your cite says. Nowhere in it that I can find is any indication that the Act in any way allows for or even considers a similar direct review of acts of Congress. That’s the sole subject I’m addressing. Certainly, the general subject of judicial review was a consideration back to the writing of the constitution. Nevertheless, that general subject is not at issue. Whether the Supreme Court could nullify an Act of Congress was also not an issue in Marbury’s suit. He merely asked for a [writ of mandamus](https://en.wikipedia.org/wiki/Mandamus). The Judiciary Act did give that particular power to the Court in Section 13. Nobody expected that the Court would further rule that the Act of Congress in question was unconstitutional. That, as I’ve been saying, was the piece that was unprecedented and indeed revolutionary. ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [July 27, 2025, 7:34pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/56 "2025-07-27T19:34:56Z")
> [@ASL\_v2.0](#): > > It already is. It has been for most of its history. It’s why, for example, the Civil Rights Act of 1964 had to be grounded in the Commerce Clause. Not quite. However, the broad wording has made for many challenges. The argument mentions by the OP reminds me of similar bogus challenges to the 16th ad, by Tax protestors. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [July 27, 2025, 10:36pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/57 "2025-07-27T22:36:41Z")
> [@DrDeth](#): > > > [@ASL\_v2.0](#): > > > > It already is. It has been for most of its history. It’s why, for example, the Civil Rights Act of 1964 had to be grounded in the Commerce Clause. > > Not quite. However, the broad wording has made for many challenges. There’s more to it than that. The Supreme Court post-Reconstruction was evidently on a crusade to overturn what they apparently considered federal overreach, and thus ruled against virtually any interpretation of the immunities and privileges clause as contravening state power. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 27, 2025, 11:01pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/58 "2025-07-27T23:01:43Z")
> [@Exapno\_Mapcase](#): > > Nobody expected that the Court would further rule that the Act of Congress in question was unconstitutional. That, as I’ve been saying, was the piece that was unprecedented and indeed revolutionary. I’m afraid I disagree. @Hari Seldon and I had a discussion on this very point about 5 years ago, and I pointed out that there were, in fact, precedents for judicial review, prior to Marshall CJ being appointed to the Court. In addition to the Privy Council cases, the issue of judicial review had been raised and debated in some of the ratification conventions, particularly in Virginia, where Marshall was an observer. Hamilton and Madison both supported the concept, and prior to Marshall’s appointment, all six of the justices of the Supreme Court had held, individually on circuit, that the the federal _Invalid Pensions Act_ was unconstitutional. Here’s my initial comment from that thread: > [@Could congress prevent SCOTUS from invalidating laws?](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/12): > > > [@Could congress prevent SCOTUS from invalidating laws?](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/1): > > > > My question is could congress simply remove the court’s jurisdiction over acts of congress? > > > > I point out that the court’s right to do so is somewhat watery. As far as I can tell it rests solely on the phrase “In Pursuance thereof” in the supremacy clause: > > > > > [@](#): > > > > > > This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; > > I would say no, because the function of judicial review is the core of the judicial power. The Congress can make particular exceptions by subject matter, as in _[McCardle’s case](https://en.wikipedia.org/wiki/Ex_parte_McCardle)_, but to take away the Court’s power of judicial review would gut the court of its core constitutional function. > > The supremacy clause is important, but the starting point is the opening words of [Article III](https://en.wikipedia.org/wiki/Article_Three_of_the_United_States_Constitution): > > > [@](#): > > > > **Article III, s. 1** : The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. > > > > **Article III, s. 2** : The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority… > > It is that delineation of the judicial power which is the source of the Court’s power of judicial review, because a question whether a law is consistent with the Constitution is a case “arising under this Constitution, [and] the Laws of the United States”. > > That is the core function of the judiciary, just like enacting laws is the core function of the Congress, and taking “care that the laws be faithfully executed” is one of the core duties of the President. One branch can’t take away the core functions of another branch. > > The Supremacy clause ([Article VI](https://en.wikipedia.org/wiki/Article_Six_of_the_United_States_Constitution)) is important to that analysis, because it clearly states that the Constitution itself is a law, and the supreme law, at that. That was the key foundational distinction between the Constitution and the Articles of Confederation: the Articles were a treaty alliance between sovereign states, but the Constitution was the result of the sovereign law-making function of the people of the United States. That was why Madison in particular insisted on ratification of the Constitution by individual state conventions ([Article VII](https://en.wikipedia.org/wiki/Article_Seven_of_the_United_States_Constitution)), rather than by the state governments. The Constitution drew its authority directly from the people, unlike the Articles, which drew their authority from the state governments. The Constitution is a law, not a political agreement. > > And that leads to the core of Chief Justice Marshall’s statement in _[Marbury v Madison](https://en.wikipedia.org/wiki/Marbury_v._Madison)_: > > > [@](#): > > > > It is emphatically the province and duty of the Judicial Department to say what the law is. > > What he is saying is that between the different types of laws listed in Article III and in the supremacy clause, it is the core function of the courts to determine how those laws relate to each other, and in case of conflict, which one governs. He concluded that in case of a conflict between the Constitution itself, and a law “made in pursuance of” the Constitution, the Constitution had to govern. Otherwise, laws “made in pursuance” of the Constitution would be exceeding the authority granted by the people to the federal government in the Constitution. > > It’s sometimes said that Marshall CJ just made judicial review up out of whole cloth, and there’s no basis for judicial review in the Constitution, but it is there, in those provisions. And, he didn’t make it up. It was foreseen by the drafters of the Constitution. > > For example, in [Federalist 78](https://en.wikipedia.org/wiki/Federalist_No._78), Alexander Hamilton clearly states that judicial review is implicit in the judicial branch: > > > [@](#): > > > > The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. **Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.** Without this, all the reservations of particular rights or privileges would amount to nothing. > > > > Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable. > > > > There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. > > … > > Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that **where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former**. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. > > Since the it is the core function of the courts to determine the relationship between the Constitution and laws passed by the Congress, an attempt to strip the Supreme Court and the federal courts of all jurisdiction to do that would be unconstitutional, in my opinion. > > Now, could the Congress strip the Supreme Court of that power by means of reducing its appellate authority, but leave the inferior courts the power of judicial review? After all, in that model, the “judicial power” under Article III would still be able to review the constitutionality of laws. Maybe. But my bet would be that the Supreme Court would rule that since the judicial power is vested in **both** the Supreme Court and inferior federal courts, there would be limitations on stripping the Supreme Court of judicial review in general. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [July 27, 2025, 11:04pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/59 "2025-07-27T23:04:54Z")
Some other quotes from that thread: > [@Could congress prevent SCOTUS from invalidating laws?](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/17): > > You might be interested in Professor Treanor’s article, “Judicial Review before Marbury and Madison”. Treanor did an extensive study of court deicisions in both state and federal courts prior to the Marbury case, and found that there were numerous examples of the courts asserting that they could hold statutes unconstitutional, under state and federal constitutions. > > He deals with the particular case of the _Invalid Pensions Act_ at pp. 533-538, where all six justices of the Supreme Court, prior to Marshall’s appointment, took the view that the Act was unconstitutional because it infringed the independence of the judiciary and its separation from the executive, protected by Article III. > > [https://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf](https://www.stanfordlawreview.org/wp-content/uploads/sites/3/2010/04/treanor.pdf) > [@Could congress prevent SCOTUS from invalidating laws?](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/18): > > Here’s Treanor’s lead-in to his discussion of _Hayburn’s Case_, which dealt with the _Invalid Pensions Act_: > > > [@](#): > > > > **_Hayburn’s Case_ [1792] was a landmark in the history of judicial review and was recognized as such at the time**. In 1800, when in _Cooper v. Telfair_ the Supreme Court was considering a challenge to a state statute on state constitutional grounds, Justice Chase in the course of oral argument observed that “there is no adjudication of the Supreme Court itself upon the point” whether a congressional statute could be held unconstitutional, but also noted, **“It is . . . a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional**. . . .” He was referring to _Hayburn’s Case_, the first case in which Supreme Court Justices concluded that a congressional statute was unconstitutional. > > That was before Marshall was appointed to the Court in 1801, and _Marbury_ was decided in 1803 > [@Could congress prevent SCOTUS from invalidating laws?](https://boards.straightdope.com/t/could-congress-prevent-scotus-from-invalidating-laws/923130/21): > > Came across another article, this time from 1953, where the author makes the point that there were historical antecedents for judicial review in England, and also that the issue was debated both at Philadelphia and in the ratifying conventions, notably Virginia’s, where Marshall, amongst others, spoke in favour of the doctrine: J.R. Saylor, “Judicial Review Prior to Marbury v. Madison” (1953), 7 SMU Law Review 88. > > [https://core.ac.uk/download/pdf/147636958.pdf](https://core.ac.uk/download/pdf/147636958.pdf) > > He gives the quotation from Madison which I mentioned earlier, about the need for ratification by state conventions to establish the Constitution as the supreme law: > > > [@](#): > > > > … the difference between a system founded on the people to be the true > > difference between a league or treaty, and a constitution. The former, in > > point of moral obligation, might be as inviolate as the latter. In point > > of political operation, there were two important distinctions in favor > > of the latter. First, a law violating a treaty ratified by a preexisting > > law might be respected by the judges as a law, though an unwise or > > perfidious one. **A law violating a constitution established by the people > > themselves would be considered by the judges as null and void.** ---
**Author:** ![DrDeth](https://avatars.discourse-cdn.com/v4/letter/d/b487fb/32.png) [@DrDeth](https://boards.straightdope.com/u/DrDeth)\ **Post date:** [July 27, 2025, 11:08pm UTC](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248/60 "2025-07-27T23:08:13Z")
> [@Northern\_Piper](#): > > I’m afraid I disagree. @Hari Seldon and I had a discussion on this very point about 5 years ago, and I pointed out that there were, in fact, precedents for judicial review, prior to Marshall CJ being appointed to the Court. Great stuff, thank you! [Previous page](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248.md?page=2) [Next page](https://boards.straightdope.com/t/american-civil-war-reconstruction-amendments/1021248.md?page=4)