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Basically, if an American state added an article to its constitution, via the relevant mechanism that allows it to do so, that proscribed state and federal courts from striking down its legislation, how would they be able to handle cases involving judicial review with a law they deemed unconstitutional (e.g. one prohibiting same-sex marriage)?

Would the Supreme Court be able to invalidate part of a state's constitution? Would the law simply be allowed to stand despite a federal or state court's finding that it is at odds with the US or state constitution?

Has this issue ever come close to being addressed before, or is it something that could never happen?

Many thanks in advance.

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  • 1
  • I would wonder about the "republican form of government" clause. Could it be argued that a republican form of state government in this sense must include a judicial branch with the power of judicial review? Sep 5 at 3:34
  • @NateEldredge, in a different reply, I asked if it could be considered an unenumerated right to challenge the government in the courts. I think it would be, but I'm unsure.
    – Tolga
    Sep 5 at 9:16
  • @Tolga : Amendment I: "... to petition the Government for a redress of grievances ..." Expanded to all state and federal courts by the incorporation doctrine applied to Amendment XIV by various SCOTUS decisions. Sep 7 at 3:24
  • @EricTowers I always forget that part of the First Amendment. Thanks for reminding me. If it were technically repealed in a new Amendment to the Constitution, what is your perspective on how it would affect judicial review?
    – Tolga
    Sep 9 at 15:18
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Under Article VI of the US Constitution, the federal constitution and valid federal laws are the supreme law of the land, and judges in every state are bound to apply them regardless of anything in the laws or constitution of any state.* If a state legislature passes a law banning same-sex marriage, a state court is required under the federal constitution to instead apply the federal constitution (as interpreted by the US Supreme Court in Obergefell v. Hodges) and rule as though same-sex marriage is legal.

When it comes to a federal court, things are even easier: a state cannot command a federal court to do anything. A federal court’s authority is laid out in Article III of the federal constitution and in federal statute, which (per Article VI) is supreme over anything in the laws or constitution of any state.

There have been times where states attempted to challenge federal supremacy. Normally, this is handled by going to federal court. Decisions in state courts can ultimately be appealed to the US Supreme Court, which can reverse them if they incorrectly applied federal law. Most of the time, that’s the end of matters: when a federal court rules, state officials comply.

Occasionally, that’s not enough. If a state disobeys the orders of a federal court, they can be enforced by federal agents. If even that isn’t enough, the President can deploy the armed forces to uphold federal authority.


* There are situations which are more complicated, like when something is a federal crime but not a state crime. I can do more research on that if you want, but for now I’m going to leave it at “it’s more complicated.”

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    @Tolga Yes. Recently, for instance, many states adopted constitutional amendments banning same-sex marriage. All of those have been struck down.
    – cpast
    Sep 5 at 1:22
  • 4
    Re the armed forces being deployed: That's not hypothetical. It has actually happened.
    – Kevin
    Sep 5 at 9:51
  • 3
    @Tolga: If you can amend the Constitution, then you can do (almost) anything. The trouble is, amending the Constitution is, by design, nearly impossible.
    – Kevin
    Sep 5 at 9:52
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    @Tolga the constitution could be amended to require an absolute monarch and abolish both the legislature and the judiciary. That's also contradictory to its current provisions. That's what amendment means.
    – phoog
    Sep 5 at 17:53
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    It's theoretically possible for Congress to limit all federal courts' jurisdiction sharply, to the point where they wouldn't be able to hear most cases brought by private citizens against state officials. This is called jurisdiction stripping. It can be done without a federal constitutional amendment. In such cases, the President could still deploy the armed forces to enforce the constitution against a recalcitrant state government, but it would be more politically risky.
    – Brian
    Sep 5 at 18:36
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A US state could prevent its own courts from overturning laws for violations of the state constitution. But the supremacy clause in Article VI, Paragraph 2 of the U.S. Constitution reads:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

This mean s that state as well as federal judges are legally bound to find invalid and unenforceable any state laws which violate the Federal constitution or federal laws, as interpreted by the Supreme court. See this page on the standards for preemption

In Martin v. Hunter's Lessee, 14 U.S. 304 (1816), and Cohens v. Virginia, 19 U.S. 264 (1821), the US Supreme Court ruled that the Supremacy Clause and the judicial power granted in Article III grant the Supreme Court the final power to review state court decisions involving issues arising under the Constitution and laws of the United States.

In Ableman v. Booth, 62 U.S. 506 (1859), the Supreme Court ruled that state courts may not issue rulings inconsistent with the holdings of federal courts, referring to the Supremacy Clause, and overturning a decision by the Supreme Court of Wisconsin.

In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court rejected attempts by Arkansas to nullify the Court's school desegregation decision, Brown v. Board of Education. The state of Arkansas, basing its action on a theory of states' rights, had passed several laws intended to nullify Brown. The Supreme Court relied on the Supremacy Clause to rule that the federal law took precedence and could not be blocked by state laws or administrators.

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  • Can you show a case where the Supreme Court struck down a part of a state's constitution that ran counter to the supremacy clause of the American constitution?
    – Tolga
    Sep 5 at 8:52
  • Also, what if an article of the American constitution blocking the federal courts from striking down laws was passed? How would the courts respond?
    – Tolga
    Sep 5 at 9:20
  • @Tolga I think tat a state constitutional provision was invalidated in one to the so-called "white primary" cases, in which state provisions limited voting in primary elections to whites. I think there was also a Maryland constitutional provision imposing a religious test for elected office struck down. I don't have case citations at hand. If a federal constitutional amendment restricted or eliminated judicial review, that would change the whole system, and I presume the courts would respect it. Sep 5 at 15:55
-2

IANAL, but it seems that a state is free to define its own judiciary. If it wanted to strip the state judiciary of review powers then I do not see why it could not do so. However, it is plainly obvious that no state could strip federal courts of judicial review powers.

Obviously the constitutional amendment would be in accordance with the state Constitution.

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  • I'm curious about one thing (and this probably sounds quite ridiculous as well), could the ability to challenge the government be seen as an unenumerated right (under the Ninth Amendment) and therefore challengeable in federal courts as the Fourteenth Amendment brings the Bill of Rights to the states? Is it acceptable for a state to arguably make the judicial branch inferior and violate the separation of powers by removing a check on the legislative and executive?
    – Tolga
    Sep 5 at 9:02
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    @Tolga the constitution merely specifies that the federal government will guarantee each of the states a republican form of government (Section 4). This has not been tested much. However, I do not think judicial review is a necessary component of republican government. There are plenty of republics that do not have judicial review.
    – emory
    Sep 5 at 11:42
  • However, having said that my opinion is largely moot because (1) all of the states want judicial review; and (2) who knows if federal judges would agree with my opinion that judicial review is not necessary for republican government. If they think it is, then it is. As long as the states want it, the judges have no cause to issue opinions. I am not advocating dispensing with it.
    – emory
    Sep 5 at 11:45
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    "that does not apply to state judiciaries": in fact it does where federal constitutional questions arise. A state could perhaps prevent its courts from finding state laws invalid on state constitutional grounds, but it cannot change the federal constitutional system, which requires state courts to disregard laws that conflict with federal law, including the federal constitution, and requires state judiciaries to respect precedent set by the supreme court and by the appeals circuit within which the state is located. A state court must invalidate a law that (e.g.) violates the 1st amendment.
    – phoog
    Sep 5 at 17:58
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    Of course whether or not the state supreme court finds it unconstitutional, federal courts retain all powers of judicial review and can find the act unconstitutional. No state court can ignore a federal judge's judicial review, but I fail to see how that requires the state judiciary to exercise judicial review in the first place.
    – emory
    Sep 5 at 22:30

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