Raw Data: Text of Bush's Speech (Constitutional Marraige Amendment)

Fox News ^ | 24 Feb, 2004 | George W. Bush

[shhrubbery!]

Marbury v. Madison seems on its surface to be a refusal to exercise power. Yet in reality it was a power-grab.

The Court refused to issue a writ of mandamus because they decided SCOTUS did not have jurisdiction, under the Constitution, in the case. OK, so far so good, looks like they were exercising restraint.

But wait: Jurisdiction in the case had been awarded to them when Congress passed the Judiciary Act of 1789 -- so the Court, in refusing this jurisdiction granted by an act of Congress, invalidated an act of Congress!

In doing so, the Supreme Court established a precedent that the Court could declare acts of the other two branches of government unconstitutional. This was not a power explicitly outlined in the Constitution.

That's what I remember learning about it, anyway. And that's why I see it as a power-grab. Tell me where I'm wrong.

[Cboldt]

I think you have it about correct. Hypothetically, what if Congress passed a law (since Congress people don't like to be held accountable for the laws they make), that all laws henceforth will be prepared and promulgated by the courts? If Congress passes a law that IS unconstitutional, are you recommending that the courts must enforce it?

The Constitution aimed to establish a set of mechanisms that provides the people with a means of self-governance. ALL branches of government operate with a goal of power-grab. It's human nature.

[daesotho]

In a common-law system, the courts have the authority to declare laws void. For an example, see the famous case from 1735 in which Alexander Hamilton won Philip Zenger's acquittal and established the precedent that the truth can't be libel.

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State." --the Constitution, Article 4, Section 1

This is interpreted as meaning that contracts made in one state are valid in other states. If a marriage is a "public Act, Record, [or] judicial Proceeding", then other states must respect marriages from any state. This means that the Defense of Marriage Act is unconstitutional, and it is the responsibility of the courts to refuse to apply it, being as the judges have all sworn to defend the Constitution above all else.

This is where a constitutional amendment comes in. The soi-disant activist judges were acting within their authority and according to their constitutional responsibility. The only way to defend marriage, if indeed gay marriage is a threat, is to amend the constitution.