By MICHAEL TAVOLIERO

The case of Marbury v. Madison (1803) introduced the doctrine of judicial review, a concept crafted by the Marshall Court to assess the constitutionality of actions taken by the legislative and executive branches.

Some viewed this as the court claiming the power to legislate. Chief Justice John Marshall meticulously established the doctrine as a crucial addition to the system of “checks and balances” designed to prevent any single branch of the federal government from becoming too powerful.

Chief Justice Marshall articulated the U.S. Supreme Court’s role in Marbury, stating, “It is emphatically the province and duty of the judicial department to say what the law is,” emphasizing the importance of respecting the legislature’s intent. However, the unintended consequences of Marbury led to a variety of interpretive philosophies, including judicial pragmatism. Judicial pragmatists see the Constitution as a living document that should evolve to meet new and unforeseen circumstances. 

In contrast, we are reminded of Associate Justice Antonin Scalia’s statement, “It’s not a living constitution; it’s a dead constitution. The constitution is not a living organism; the constitution is the law.” 

Marbury established both the supremacy of the U.S. Constitution and the authority of the court to interpret it under the Constitution’s ascendancy. 

More than a hundred years later, the doctrine of severability emerged. As the court encountered more cases, it faced instances where only parts of a statute were unconstitutional. The question arose: Should the entire statute be struck down or only the offending provisions?

The doctrine of severability has been more subjective than objective jurisprudence scholarship. In the early 20th century, the court began to hold that if a statute contained both valid and invalid parts, the valid parts could be upheld. The decision to sever unconstitutional parts of a statute hinged on whether the legislature would have passed the law without the invalid parts. Thus, the doctrine of severability took shape, sparking similar criticism of the court legislating from the bench.

NLRB v. Jones & Laughlin Steel Corp. (1937) exemplifies the court “legislating from the bench” by using the doctrine of severability. Traditionally, the doctrine addressed whether the valid portions of a statute could stand independently when other parts were unconstitutional. NLRB expanded this concept, not by addressing different parts of a single statute, but by examining how provisions of the U.S. Constitution could be reinterpreted and applied to federal regulatory power. The case expanded the scope of the Commerce Clause and the federal government’s regulatory power over activities previously considered within the states’ domain.

Prior to NLRB, the Commerce Clause was interpreted more narrowly, confining federal regulation to direct interstate commerce activities. In NLRB, the court upheld the National Labor Relations Act (NLRA), which allowed federal regulation of labor relations in industries that could indirectly affect interstate commerce. This marked a significant shift in constitutional interpretation.

The court’s interpretation extended federal power to regulate intrastate activities based on their potential impact on interstate commerce, effectively creating a new framework for the federal government’s role. This decision legitimized the New Deal era’s regulatory regime, fundamentally altering the balance of power between the federal government and the states and allowing for a broad range of federal economic regulations. This resulted in the continued growth of the unelected federal bureaucracy and destroying states sovereignty.

The dissenting justices in NLRB expressed concerns about the court’s role in altering the federal-state power dynamic. They argued that the majority’s decision represented an overreach and a departure from the constitutional limits placed on federal authority. The framers intended a limited federal government with enumerated powers. By interpreting the Commerce Clause to allow extensive federal regulation, the Court stepped into a legislative role, determining policy outcomes rather than interpreting the law.

Dobbs v. Jackson Women’s Health Organization (2022) overturned the federal constitutional protection of abortion rights established in Roe v. Wade (1973), effectively returning the authority to regulate or ban abortion to the states. 

Dobbs is unique in federal jurisprudence, marking the first instance in the almost 235-year history of federal jurisprudence where a previously recognized federal constitutional right was overturned and returned to the states, altering the balance of power between federal and state governments and honoring the 10^thAmendment. 

Unlike NLRB, Dobbs concluded that there was no constitutional protection for rights not explicitly found in the Constitution. Conversely, Roe v. Wade was a significant undertaking by Associate Justice Blackmun to establish a new set of legal standards not explicitly outlined in the Constitution, effectively overriding the intent of the Texas legislature.

NLRB and Roe both represent cases when the court found rights to fit the narrative of the issue and not the law, creating government manipulation rather than the protection of rights. NLRB marked the beginning of a change in the Supreme Court’s approach to jurisprudence. The court began upholding state and federal economic legislation, expanding the interpretation of the Constitution to allow for greater federal regulatory power during the impacts of the Great Depression even when it negatively impacted constitutionally guaranteed rights.  

Similarly, Roe established a woman’s right to an abortion within the right to privacy erroneously found in the Fourteenth Amendment, creating a new legal framework for abortion rights across the United States and superseding state laws that regulated or banned abortion.

The comparison between these landmark cases reveals a shift from the court’s historical role of interpreting the Constitution to one of crafting new rights and legislation not explicitly found within the text. With Dobbs, the pendulum may indeed be swinging back, revisiting the balance of power between federal and state governments and challenging the Court’s role in shaping policy and rights. The evolution of judicial philosophy from Marbury to NLRB to Roe and now to Dobbs highlights the ongoing debate over the extent of judicial power and the interpretation of the Constitution in a modern context.

Subjective interpretation of guiding documents, such as the U.S. Constitution, introduces ambiguity and inconsistency, undermining the stability and integrity of the legal and organizational frameworks they establish. To maintain the rule of law and the original intent of these documents, it is essential to adhere to a textual and objective interpretation. This ensures that the documents remain true to their purpose and protect the rights and interests they are designed to safeguard.

Michael Tavoliero is a senior contributor at Must Read Alaska.