America's Written Constitution: Remembering the Judicial Duty to Say What the Law Is

56 Pages Posted: 28 Jan 2015 Last revised: 20 Jan 2016

Date Written: December 9, 2014

Abstract

This piece started as a professional document informally titled the Equity Memorandum written to explain the effect of recent Supreme Court decisions on traditional equity. The result is a fascinating exploration into the inherent problems with the use of equity to issue the Wheaton injunction. In fact the Court’s apparent adoption of positivism throughout the 2013 term was rendered virtually disingenuous by the Wheaton injunction. Justice Sotomayor even authored a rare dissent in which she stated: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

The Court’s 2013 term developed many new and disturbing trends that led to Sotomayor’s ringing dissent. Behind them all stood a flat adherence to positivism — that is, applying laws and treaties without equitable limitation. This caused the Court to bifurcate and fray its precedent based on statutory interpretation. Adopting this policy is within the Court’s power under the Judiciary Act of 1789. However, to adopt this policy in cases of Constitutional significance unsettles the very fundamental principle of our society of a written Constitution, recognized in Marbury v. Madison. The quintessential case for the fraying of Constitutional precedent in this way is Burwell v. Hobby Lobby in which the Court took a Free Exercise position under the Religious Freedom Restoration Act without overruling First Amendment Free Exercise precedent that would have forced the opposite conclusion.

Under feigned positivism the Court reworked a number of fundamental principles including stare decisis, the Rule of Law, prudential standing, international comity & grace, general jurisdiction, and Federalism. The impetus for reworking these fundamentals was allegedly to avoid the use of equitable power by the Court. The Court’s fundamental changes were created with the caveat that equitable power would not be expended and that instead Congress’s laws would be robotically adhered to.

Then by issuing the Wheaton injunction without settled law to justify the expenditure of equitable power, the Court acted in conflict to its own precedent that supposedly embraced positivism. The Court also threw its bare Article III equitable power (that it promised it would not use) against the Congress’s and President’s Article I & II powers. Obviously this impacts the Separation of Powers.

To respond this article holds the important holdings of 2013 up to the ideals furthered by equitable power. It argues that the Court should reengage with the Natural Law and Law of Nations considerations that arise in cases that involve the Separation of Powers. And finally it argues that the Rule of Law, stare decisis and the fundamental rule from Marbury be given imminent reaffirmation.

Keywords: Positivism, Natural Law, Religious Liberty, First Amendment, Hobby Lobby, Religious Freedom Restoration Act, Marbury v. Madison, Separation of Powers

Suggested Citation

Schroeder, Joshua, America's Written Constitution: Remembering the Judicial Duty to Say What the Law Is (December 9, 2014). 43 CAP. U. L. REV. 833 (2015), Available at SSRN: https://ssrn.com/abstract=2556683

Joshua Schroeder (Contact Author)

SchroederLaw ( email )

490 Lake Park Ave. #10422
Oakland, CA 94610
United States

HOME PAGE: http://https://www.jschroederlaw.com/

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