… but I suppose the answer is “Yes, I will have to write on this subject again, just as I have before.” This time around, I am writing in response to what Patheos rather breathlessly describes as a "constitutional horror": Justice Thomas' assertion that, the "establishment" clause notwithstanding, States still have the right to designate certain religious / denominations as "official". As usual, and as is customary with all matters religious when people are given a breadth of audience that far exceeds their depth of knowledge, the hysteria is altogether overblown and unnecessary, due to an absence of working knowledge about the history of the subject – in this case, the interpretation of the “establishment” clause of the First Amendment. The whole point of what follows is a matter
I invite my fellow progressives / leftists to please feel free to vote me off the Island for saying the following, but ... in the interest of fairness, it should be said that acting AG Matthew Whitaker is right in a certain sense about Marbury v. Madison. To be sure, Matthew Whitaker is indeed a crackpot, and his own utterances, both written and spoken, amply justify that description. But let's be fair to broken clocks: even they are right twice a day. (The full text of Marbury can be found here; a very literate, enlightening, and even-handed summary, here.) The Constitution’s Article III is rather ambiguous, not about the scope of the Supreme Court’s original jurisdiction, but about how “hard-coded” that original jurisdiction is in the Constitution. There are two questions at issue.
I originally intended to publish a column on the 1803 Supreme Court decision Marbury v. Madison last week, 22 November. In fact, I had the column finished, edited, and scheduled when Diane read what I had written and suggested that, instead of publishing the Marbury column then, that perhaps I should preface the Marbury column with a much more autobiographical “Skeptic’s Collection” column (1) narrating how I had become interested in that landmark case in order to (2) give some context for the Marbury column itself, and then (3) subsequently publish the Marbury column the Thursday after – as it turns out, 6 December. Diane’s suggestion was very astute. So the following is a kind of intellectual autobiography of my very-much-ongoing love affair with Marbury v. Madison. Quixotic as it n