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When Katie Couric asked her in a recent interview whether "the court would be ready to invalidate state bans on same-sex marriage" she said this:I won't make predictions.
Even if we want to preserve judicial review of national legislation, something Justice Oliver Wendell Holmes Jr. believed could be dispensed with, perhaps we should emulate North Dakota or Nebraska, which require supermajorities of their court to invalidate state legislation.
Since Luther v. Borden (1849), for example, it is a matter of settled practice that the court will not use Article IV, Section 4 which provides that the states must have a republican form of government to invalidate state laws; it is for Congress and the president to decide whether a particular state government is republican in form.
Few agreed with Madison that the legislature should be able to invalidate state laws, so the idea was dropped.
Black believed that the equal protection clause could not be introduced as a means to invalidate state action, unless that action involved civil rights or racial discrimination.
Predictably, Thomas was against the court's decision to invalidate state same-sex marriage bans but he also takes the argument a step further, with a deeply strange riff on slavery.
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Roe v. Wade, which invalidated state laws banning abortion around the country, is the consummate act of liberal judicial activism.
They also made the financial suffering worse by invalidating state fair-lending laws that might have shielded millions of people.
Federal regulators may even have accelerated the mortgage crisis by invalidating state laws that would have protected people from misleading and predatory lending practices.
As in decisions invalidating state sodomy laws and barring the death penalty for minors and the mentally disabled, Justice Kennedy's rulings often bolster dominant national norms and suppress dissident state practices.
Roe is mistaken constitutional law not just because it invalidated state laws on the subject but because it is contrary to what is described as a self-evident truth in the Declaration of Independence, namely, that we have an unalienable right to life from our creator.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com