Judicial Power and Potential Unconstitutionality: A Scholastic Perspective

This essay is an exercise in constructive retrieval of the traditional American understanding of judicial power with respect to judicial disregard of potentially unconstitutional laws when identifying rules of decision in constitutional adjudication. This retrieval makes use of the act/potency distinction from Scholastic philosophy, Thomas Aquinas’s distinction between ius and lex, and John Marshall’s canonical account of the judicial application of the Constitution as a rule of decision in Marbury v. Madison to diagnose the cause of contemporary severability doctrine’s problems and to identify a basic framework for replacement doctrine. I contend that the doctrinal pieces for the replacement of statutory severance with statutory disregard are already in place and that the Roberts Court should complete the work begun by Justice Thomas in his solo concurrence in Murphy v. NCAA (2018).