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In Pennsylvania, an Affront to Judicial Review

3:02 PM, Aug 5, 2013 • By CHRISTINE FLOWERS
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A visitor to Richmond can’t leave without a trip to John Marshall’s house, a living shrine to the greatest chief justice in the history of the United States. Passing through the halls of his former home, it is as if the spirit of the great man is present in the articles he used and the rooms he inhabited. The courtly tour guide will narrate his history for you in a pleasing Virginia lilt, and you will come to realize that this country owes as much to Marshall as to Adams, Franklin and to the justice’s own illustrious cousin, Jefferson.

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Lawyers understand the debt owed to John Marshall, the man who raised the third branch of government to co-equal status with the legislature and, perhaps more importantly, the executive. When the important documents of our founding are discussed, the Declaration of Independence and the Constitution are the obvious and most prominent ones for any layman. It is not unlikely, however, that a lawyer would add the text of Marbury v. Madison to the list, since it was in this landmark Supreme Court case that John Marshall established the principle of judicial review, writing: “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.”

That principle has remained constant for the past two centuries. Unfortunately, judicial review has recently come under attack in the Commonwealth of Pennsylvania, the state that gave this country the framework for her legal system.

Attorney General Kathleen Kane announced at a carefully staged press conference last month at the National Constitution Center (irony not lost here) that she would not defend the commonwealth’s ban on same-sex marriage against a challenge that had recently been filed by the American Civil Liberties Union in federal court. Pursuant to Pennsylvania’s 1996 Defense of Marriage Act, which closely tracked the federal version, marriage is defined as a union between one man and one woman. In refusing to defend against the lawsuit, Kane assured the receptive crowd that she was not allowing her own personal views on same-sex marriage, which she supports, to govern her decision on whether to represent the commonwealth in court. Instead, she gave the following explanation for her action:

“I cannot ethically defend the constitutionality of Pennsylvania’s [law banning same-sex marriage] where I believe it to be wholly unconstitutional.”

Then began the series of press appearances on local and national media where the woman who had stated during her campaign that politics had no place in the attorney general’s office suddenly looked very much like a candidate pursuing higher office. On a local public radio station, Kane excused her failure to defend the statute despite a clear mandate to do so under Section 204(a)(3) of Commonwealth Attorney’s Act which states that “it shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.” Kane pointed to another provision, Section 204(c) which permits her office to “authorize the General Counsel or the counsel for an independent agency to initiate, conduct or defend any particular litigation in [her] stead” where she determines that it is more efficient or “otherwise in the best interest of the Commonwealth.”

Kane apparently believes that it is in the best interest of the Commonwealth if its attorney general does not defend a law that she believes to be “wholly unconstitutional.” That would make sense only if she had the right to determine the constitutionality of that law. However, her office does not give her or any lawyer not currently on the bench or in the legislature the authority to make that call. A simple reading of Marbury would have reminded Kane of the limits of her power and office.

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