this post was submitted on 27 Jun 2026
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32
Could the Supreme Court overturning Marbury vs Madison be a way to repeal the US Constitution? (lemmy.ml)
submitted 1 day ago by SubArcticTundra@lemmy.ml to c/nostupidquestions@lemmy.world
18 comments fedilink hide all child comments
 

Wikipedia says

Marbury is regarded as the single most important decision in American constitutional law. It established that the U.S. Constitution is actually law, not merely a statement of political principles and ideals.

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[–] disregardable@lemmy.zip 18 points 1 day ago (3 children)

Marbury v. Madison established the right for the US Supreme Court to strike down laws that violate the Constitution. Overturning Marbury would turn the Supreme Court into a court of review, meaning they only apply the law as written. They would lose the power to invalidate statutes. Some countries with civil systems do have high courts like that. It wouldn't be the end of the world. We just generally believe that adding checks and balances encourages a healthy government.

So, no. Overturning Marbury does not make the Constitution not the law. The Constitution is the law because the drafters signed it and the legislatures enacted it. The only way to get rid of it legally is to pass a new constitution in the same way.

[–] litchralee@sh.itjust.works 1 points 15 hours ago

Overturning Marbury would turn the Supreme Court into a court of review, meaning they only apply the law as written.

This is correct as to what SCOTUS can pass final judgement upon. What would be unaffected would be theirs powers in equity, which show up prominently when it comes to preliminary injunctions. So in a world without Marbury, a lawsuit against the federal government challenging the constitutionality of a particular law could not proceed, because SCOTUS (and by extension, all inferior federal courts) wouldn't be able to rule on that question.

But if instead, a lawsuit challenges whether the federal government followed the procedures defined in law, or if there is ambiguity as to how the law might be interpreted, then SCOTUS would still have the power to intervene while the case progresses -- which would typically restore the status quo, but the current SCOTUS seems allergic to that -- and then could pass judgement in law on how a statute is read, or in equity on how ambiguity is resolved. Litigants would change their tactics to adapt to this environment.

This is part for core, raw power that the court retains, even without Marbury: it can, at great reputational cost, read a statute that says "no parking on Tuesday" to mean any of: 1) no parking on any Tuesday of any week, 2) no parking on only the Tuesday following the passage of the statute, and then parking is always permitted thereafter, 3) parking of automobiles is banned nationwide, but only in National Parks because of their "uniquely structured, quasi-private entity with a distinct historical tradition", even when this openly contradicts history.

The power to say what words mean is awe-inducing but also terrifying, one that can maintain good governance but can also turn into an Orwellian double-plus bad nightmare.

[–] First_Thunder@lemmy.zip 4 points 1 day ago

I’d say the big issue is the amount of Supreme Court decisions that are essentially laws that don’t exist

[–] HoneyMustardGas@lemmy.world 3 points 1 day ago (2 children)

I wonder how much damage it would do to the US letting the policymakers of today draft up a new constitution. I wonder how different it would be.

[–] AA5B@lemmy.world 2 points 14 hours ago

~~Martin Bormann~~ Mike Johnson (Head of the ~~Nazi~~ Republican Party Chancellery): Capturing the dogma of the Führerprinzip (leadership principle), ~~Bormann~~ Johnson stated: "All depends on him, he alone sustains morale, he is invariably right, he is our hope and trust."

[–] otp@sh.itjust.works 17 points 1 day ago

Every corporation has the freedom of speech (measured by profit).

Every corporation has the right to employ bearers of arms, including autonomous bearers of arms.

Every corporation has the right to the money of the consumers, be it through purchases, taxation, or some combination of both.

[–] radix@lemmy.world 18 points 1 day ago

Sounds like a fine way to abolish the existing Court, since the constitution is where it gets its power.

[–] LovableSidekick@lemmy.world 10 points 1 day ago

Sounds like an excellent question to pose in a constitutional law class. Let's put our best social media randos on it!

[–] Brokkr@lemmy.world 9 points 1 day ago (2 children)

Not a lawyer, but if they overturned this decision, the court would lose nearly all of their power. It was this decision that gave the Supreme Court the power to interpret constitutionality.

[–] SubArcticTundra@lemmy.ml 1 points 1 day ago (1 children)

Ahh good point. So would be against their personal interests to repeal it this way

[–] AA5B@lemmy.world 1 points 14 hours ago

Just like it would be against the personal interests of republicans in Congress to rubber stamp the executive branch when it clearly violates constitutional checks and balances. We’ve always depended on personal greed for power as part of what makes checks and balances work. What congressman would give up his power to allocate funding, for example, and just let a tyrant have it?

But we live in a time when that no longer works, when leadership is so craven they would rather bow before their orange idol, and willingly give up the power they’ve been working toward their entire life.

Would the Supreme Court be any different? Will they care about their unique power to interpret the constitution, if they can accept motorhomes, private aircraft services, luxury resorts without fearing consequences?

[–] queermunist@lemmy.ml 7 points 1 day ago* (last edited 1 day ago)

Not really. Effectively, the Court is checked by their legitimacy. They need the public to believe that their rulings matter, because they don't have their own enforcement mechanisms. We saw this actually play out in Worcester v. Georgia. The Court can rule how it likes, but without public buy-in they'll be told to pound sand.

That's why they're actually concerned about how the appear to the public and which way the political winds are blowing. If they go too far and do something truly radical, like repeal the Constitution, they'd be ignored. Or killed.

[–] kersploosh@sh.itjust.works 4 points 1 day ago* (last edited 1 day ago) (1 children)

I think there's enough precedent at this point that everyone would still treat the ~~Construction~~ Constitution as law.

However, the case is also when the Supreme Court gave itself the power to override Congress by declaring laws unconstitutional. If the court overturned Marbury v. Madison the court would also be kneecapping itself by giving up one of its greatest powers.

[–] WhoIzDisIz@lemmy.today 0 points 1 day ago (1 children)

I think there's enough precedent at this point that everyone would still treat the Construction as law.

What construction?

[–] kersploosh@sh.itjust.works 1 points 1 day ago (1 children)

Typo. Autocorrect has been killing me lately.

[–] WhoIzDisIz@lemmy.today 1 points 1 day ago

You & me both. I was just being a wiseass, tho. It was kinda obvious.

[–] Lasherz12@lemmy.world 1 points 1 day ago

They wouldn't overturn it and give back their power, but I could definitely see them modifying it to grab more power.