The Intent of the Framers -- Marbury v Madison and the Civil War Amendments

When originalists say that the Supreme Court should interpret the Constitution solely by the intent of the Framers, and the Supreme Court should have no more power than a Surrogates Court, one of the points some of the originalists are trying to make is that MARBURY v MADISON (1801 -- one of the key cases regarding Judicial Review) itself was wrongly decided

Problem with that, of course, is that MARBURY v MADISON itself was a battle between 2 groups of people, both groups being present at the creation, both groups of "originalists".

In MARBURY, the side favoring strong central government with strong judicial review won. The side that said they favored a weaker government with less judicial review (the side that had control of the Executive and the Congress for most of the next 60 years) could have taken steps to limit the Supreme Court, but chose not to.

One moral I take from the story is that the Framers said a lot of different things, and that an activist Supreme Court was useful to generation of the Framers, and the generation after them.

For myself, just about the only thing I can clearly glean from the original Constitution is that the Framers tolerated some form of slavery, and may or may not have favored equal protection amongst the States. In the world view of the Southern Framers (who are the only Framers who seem to count to some of these modern-day originalists), Equal Protection for people was ludicrous.

About the only thing I can glean about the 13th, 14th and 15th Amendments (Abolition of Slavery, Equal Protection and the Right to Vote) is that the Southern Framers would have opposed them (as did Southerners at the time of passage), and that the Amendments only passed into the Constitution after the Civil War because the South was still out of the Union. I am sure Strom Thurmond, and maybe Robert Bork and Trent Lott, would agree that the poor South was coerced into accepting the Civil War Amendments as an unfair cost of readmission into the Union.

Does that mean that originalist nominees to the Supreme Court in 2005 should oppose the Civil War Amendments as well? Can even a Constitutional Amendment be unconstitutional if it does too much violence to the original intent of the Framers?