One Nation Under Judges: Part 2 - TribPapers

One Nation Under Judges: Part 2

AshevilleOur laws flow as follows:

From God to the people, from the people to the Constitution, from the Constitution to our elected government officials, and from our elected government officials to our judicial system to insure that our laws are in “harmony” with the Constitution.

The judges did not write the Constitution and, therefore, they have no right to re-write it. Amending the Constitution was never a right given by the founders to the judiciary. That right was given to the people.
If the framers of our Constitution had wanted to empower the Supreme Court with a legislative veto, they would have done so.

While Mozart had the right to re-write his orchestral compositions, the critics of Mozart had no such right. The critic had the right to determine if the orchestra was performing them in “harmony” with what the composer wrote, but not to revise the composition or to add new music to what was written.

This would be anathema to what was written and, indeed, has become so.

Notice that the judicial oath of office, imposed by the legislature, states: ‘I do solemnly swear that I will administer justice without respect to persons, and do equal rights to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.’ “Agreeably to” was intended to mean “in harmony with.”

What gave rise to this usurpation of the Constitution by the Court?

The case that is primarily cited is Marbury v. Madison.

In the Presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third U.S. President. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, Adams and the Federalist-controlled U.S. Congress were still in power. Congress passed a new Judiciary Act, creating a number of new courts to be controlled by Federalists.

On March 2, Adams appointed 42 Federalists to these courts while sitting as a lame duck less than a week before the end of his term. The following day, on March 3, the judges were approved by the Senate. One of these “Midnight Judges” was William Marbury, appointed to a position as Justice of the Peace in the District of Columbia. At noon, Adams left the office and Jefferson was inaugurated as President.

Marbury’s commission, as well as that of others who were part of the lawsuit, was signed by Adams and John Marshall, his Secretary of State. As a complication of matters, Marshall had been appointed as Chief Justice of the Supreme Court on February 4, but had continued to act as Secretary of State until Jefferson was inaugurated. On March 3, Marshall became Chief Justice and swore in Jefferson.

Jefferson treated as void the 42 commissions approved on Inauguration Day, including Marbury’s, because they had not been officially delivered by day’s end. He appointed James Madison as the new Secretary, and ordered him not to deliver the Marbury commission.

At this point in the country’s history, the Supreme Court had very limited powers. Chief Justice Marshall knew that if the Court decided for Marbury, Jefferson would almost certainly ignore the decision—a result that would further erode the court’s authority. Such a result arguably occurred about 30 years later when Marshall ruled in Worcester v. Georgia and President Andrew Jackson refused to compel the state of Georgia to abide by the decision. He is famously supposed to have said, “John Marshall has made his decision. Now let him enforce it.”
What Marshall finally decided was that, first, Marbury had a right to the appointment and that, secondly, the laws of the country offered him a remedy. The requested remedy was an order (known as a writ of mandamus) directed against James Madison, the new Secretary of State, to transmit the commission to Marbury. It was here that Marshall made his mark.

The Constitution, the Supreme Court held, confined its original jurisdiction—the ability to hear cases in the first instance—to “all cases affecting ambassadors, other public ministers and consuls, and those in which a state be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” (Not original jurisdiction, as has occurred in this case.)

Then, Marshall reasoned that “if this Court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign.”

Marshall’s opinion simultaneously asserted the Court’s power to hold acts of Congress unconstitutional and yet avoided a direct confrontation with the President. By giving up the power of original jurisdiction in cases not specifically enumerated in the Constitution, it seized the power of judicial review.

Politically, Jefferson was forced into a corner: either agree with the ruling and use it as a justification to continue denying the Midnight Judges their commissions, or disagree with the very ruling that legitimized his action.

The Court, by enforcing a constitutional restriction on judicial power, essentially did nothing.
Hence by simply having the gumption to claim it, Marshall claimed the Court’s right of judicial review. That was all there was to it.

Editor’s Note: Part 3 of this series appears in our upocoming issue 31.