One of the primary functions of the US Supreme Court is to examine a statute, treaty or regulation in order to determine if it contradicts or violates existing law, or the constitution of a state or of the United States. In deciding Marbury v. Madison, 5 USC 137 (1803), Chief Justice John Marshall solidified this concept of judicial review as a necessary consequence of the justices’ sworn oath to uphold the Constitution, as prescribed by Artcle Six therein. What we have seen since, however, is that the Court has, as a matter of routine, strayed from deciding the validity of the laws relative to the Constitution to the point at which it defines the very meaning of the Constitution, the result of which is that the meaning of the Constitution–the supreme law of the land–has, in James Madison’s words, undergone “such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow.” That very real problem raises several very significant questions.
What is the meaning of the Constitution? Can we reconcile the government, and all of its attendant powers, with the language in the Constitution? Is the Constitution so malleable that its meaning can change so dramatically absent any formal amendment process? Perhaps most important, should the Supreme Court–indeed, any federal court–have the power to reinterpret or redefine that document simply because society “matures?” Is there not a serious conflict of interest when the Court, itself an agency of the federal government, can decide not only the validity of the laws and regulations, but can define or redefine the Constitution itself? Does that not potentially vest nearly limitless power in the federal government, making the states mere vassals?