Marbury and the First Congress

When I teach Marbury, I sometimes start by walking the students through the idea that statutes enacted by the First Congress carry a strong presumption of constitutionality. We talk about why that might be. Then I ask how the First Congress screwed up and enacted an unconstitutional provision in the Judiciary Act of 1789. The next step, of course, is to show them that the First Congress did no such thing, as the "problem" came from the Court's deliberate misreading of the Act.

Nevertheless, the point that the First Congress does not have an unblemished official record is correct. And Justice Thomas said so in his dissent the other day in United States ex rel Polansky v. Executive Health Resources Inc. He said there that federal qui tam actions are not constitutional just because the First Congress enacted some. Why? Because the First Congress was not perfect. See Marbury. I don't think that this argument with carry the day if the Court ever does address the constitutionality of qui tam action, but who knows.