Asheville – Note: Previous installment can be read in Issue 30 of the Tribune Papers.
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.
Although Marbury v. Madison was the first case asserting the power of judicial review, it was not a power that the Court initially exercised with frequency. It was not until Dred Scott v. Sandford in 1857 that the Supreme Court invalidated another act of Congress. However, the Court treated the decision with deference: between 1804 and 1894, Marbury was cited in only 24 separate opinions in the U.S. Supreme Court that reiterated Marbury’s initial jurisdictional holding proclaimed by Marshall.
It should be noted that when Jeffersonian Republicans and Jacksonian Democrats launched attacks on the Court, they did so with the belief that congressional or presidential interpretations of the Constitution were entitled to as much respect as those of the Court.
Rules for the Courts
Most of the Constitution’s direct instructions for the courts are found in three places: Article III, Amendments 4–8 of the Bill of Rights, and certain provisions of Article I, Section 9.
For an obvious example of what this means from the Bill of Rights, according to Robert Lowery Clinton, Professor at Southern Illinois University, “one only needs to add the requirement of the Fifth Amendment that such a confession be un-coerced.” Suppose now that Congress, in a zealous attempt to suppress subversion, amends the federal rules of criminal procedure so as to make it possible for the government to obtain a conviction on a charge of treason on the basis of a coerced confession or on the testimony of only one witness. Much like the situation faced by the Court in Marbury, this situation presents a clear-cut case of a judiciary nature precisely because the Court cannot apply the statutory provision without at the same time violating the Constitution.
“Attention to this principle can help to determine whether any particular case is of a judiciary nature. One may simply ask: “Can the Court apply the law in question without itself directly violating the Constitution?” If the answer to this question is no, then the case is “judiciary” in nature; the Court will have no sensible alternative but to invalidate (refuse to apply) the law. If the answer is yes, then the case is “non-judiciary” in nature, and the Court must apply the law, whether or not the judges believe that the law itself violates the Constitution.
A good testimony to the good sense of Madison and the Founders is that they “extended federal judicial power to cases “arising under” the Constitution, laws, and treaties only after they had generally agreed that the power was “limited to cases of a judiciary nature.” Limiting “final” constitutional review by the Court to these cases leaves it to coordinate branches of government to determine the reach of their own constitutional powers. It preserves the equality accorded to each division of the government by the Founders. It strengthens the separation of powers by emphasizing the constitutional responsibilities of Congress and the President. And it recovers an important strand of our republican heritage that is nowhere more apparent than in the Supreme Court’s own rich constitutional legacy. ”
What should be done?
It is time that the people, Congress, and the President take steps to revise this ever expanding judicial tyranny before our Constitution and our government are molded into a shape that cannot be repaired. Unfortunately, we, as a people, have willingly given the judges these powers that they so eagerly grab.
The only true guardian of the Constitution is an educated citizenry and a citizenry that has the courage to accept the responsibilities that liberty requires.
As Robert Yates, a delegate to the Constitutional Convention from New York, wrote, “Perhaps nothing could have been better conceived to facilitate the abolition of… governments than the constitution of the judicial.”
As Mark Levin stated in Men in Black: How the Supreme Court is Destroying America, “The intensive and concerted effort to exclude references to religion or God from public places is an attack on our founding principles.” It’s an attempt to bolster a growing reliance on the government—especially the judiciary—as the source of our rights. But if our rights are not unalienable, if they don’t come from a source higher than ourselves, then they’re malleable at the will of the state. This is a prescription for tyranny.”
The judiciary was never granted the right to mold a new constitution or to advance its own agendas and political causes through the judicial system. It has simply grabbed that right through intimidation.
Congress has the power, providing it has the will.
Editor’s Note: The 4th and final part of this series will be featured in next week’s issue.