Hacker News Reader

Comment by bartc | Hacker News Reader

That sounds equivalent to writing an unconstitutional law and tacking on “btw, you can’t rule that this law is unconstitutional”.

Which is actually possible to do by amending the US Constitution, but good luck with that.

View on HN

Marbury itself has no basis in the constitution. Congress can gut the powers the courts have carved out any time, what I’m suggesting is that it can be done with a surgical strike rather than going nuclear.

This is a brave comment given that we are about to get 4 more years of Trump and probably a Republican house and senate.

Ironically Marbury was about Congress gutting the courts. Jefferson's Congress canceled 18 federal courts, leaving 18 judges (appointed by Adams at the end of his term, and who had not yet been seated) with no court to sit in! The case was a suit to force Jefferson's Secretary of State (Madison!) to give those new judges their commission. Marbury is a fairly complex case.

Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.

Yet everyone has accepted Marbury. No one questions it. The reason is that it makes sense in the context of the constitution.

This court has gone a long way to say that vibes aren’t a sufficient level of clarity anymore, so it’s only fair that this can work against the court’s allocation of power as much as it has worked for it.

Reply on news.ycombinator.com