A note from the actual author (that is myself, Steven Jonas, MD, MPH). Please note that this chapter was actually written in 1994-95. The similarities between the politics of the Republicans and of the Democrats then and in recent times are NOT purely coincidental.
Further, "Original Intent," is what we hear about the Supreme Court and its functioning from the Repubs., over and over again. Except when they do not want to hear it, as in "Original Intent" Scalia and "Heller," in which he ignored Supreme Court precedent and also rewrote the 2nd Amendment by hiving off its first clause. In this case, a Repub. Supreme Court recognizes that nowhere in the Constitution is judicial review mentioned.
Summary of the Decision (Supreme Court Bulletin)
"Supreme Court Has No Constitutional Review Authority"
Anderson v. Board of Education, Cer tiorari to United States Court of Ap peals for the Third Circuit.
No. 101"'11. Argued October 31, 2002--Decided May 13, 2003.
Petitioner, a parent acting on behalf of her minor child, brought a civil ac tion against the Board of Education of the state of New Jersey seek ing to pre vent it from enforcing a law passed dur ing the 2001 ses sion of the State Legis lature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Su preme Court. With out arguing the merits, respon dent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, gener ally known as the "Helms Amend ment ," the U.S. Su preme Court did not have ju risdiction in this case.
Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Fur ther, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its "constitutionality."
(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: "The judicial power shall extend to all cas es, 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; to all cases affect ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to contro versies to which the United States shall be a party; to controversies between two or more states."
(b) It is clear that the plain language of this article supports the hold ing of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Consti tution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say. It thus be comes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court "judicial re view" for "constitu tionality" were based on faulty legal rea soning.
(c) In the first of these cases, Marbury v. Madison, the Court inval i dated an "Act of Congress giving the Court jurisdiction to hear origi nal appli cations for writs of mandamus, because in such cases the Con stitu tion limits the Su preme Court to appellate jurisdiction" (Cox). While that opin ion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law. Rather, as in Great Britain, the legisla tive branch, through the will of the majority, is the only ap propriate judge of the "constitutionality" of its own acts. In his written opinion, the Chief Justice stated that if "the courts lacked the power to give sting to constitu tional safeguards . . . , the Legisla tive and Execu tive Branches might too often override the Constitution" (Cox). That may well be true. But if the Founding Fathers had wanted to give the Federal judiciary that "protec tive" function, they would have clearly writ ten it into the Constitu tion. Chief Justice Marshall was reading into the Consti tution words that he wanted to see -- but were not there.
(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Su preme Court's review powers to include decisions made by the State courts (Cox). Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there. In Cohens v. Vir ginia Chief Justice Marshall affirmed Justice Story's con clu sion in Martin, using the same faulty reasoning (Cox).
(e) Finally, in McCulloch v. Maryland, Chief Justice Marshall not only reaffirmed the Court's review authority, unstated in the Constitu tion, but found in it other "implied powers," giving the Congress au thority to undertake ac tions not otherwise specified by the Constitution (in this case renewing the charter of the United States Bank which it had originally established in 1791) (Cox).
(f) After extensive review of the opinions and reasoning in the deci sions made in the aforementioned cases, careful review of the language of the Con stitution itself, and a consideration of the available evidence on Original Intent, the Court was able to find no basis for the conclu sions on "implied powers" that Chief Justice Marshall and his colleagues drew in those decisions referable to the authority of either the Supreme Court or the Congress. Thus, the Court held, the precedents estab lished by those cases and all their successors down through the years were based on faulty rea soning and a reading of the Consti tution not in ac cord with the Doctrine of Original Intent. Thus those faulty prece dents must be abandoned. Since the specifics of Marbury, Martin, Cohens, and McCulloch had long since become moot, the Court chose not to reverse those decisions. However, it did reverse the holdings made in those cases that the Supreme Court had any power to review the actions of the Fed eral Execu tive and Legislative branches or any State courts for their "constitu tionality."
11 F. 11th 111, Affirmed. Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting.