"There's nothing in the Constitution that grants to the Supreme Court the final word as to whether or not an executive act or a Congressional enactment is constitutional. This is a power that the Supreme Court simply arrogated to itself early in our history. The Constitution enumerates the preeminent powers of Congress in Article I & gave the President the authority to veto any enactment subject, however, to a veto override vote by a super majority of Congress. Nothing in the Constitution suggests that the Supreme Court could override the acts of both the President & the Congress & certainly its drafters could not possibly foresee a situation where hundreds of Federal District Court Judges could do the same with each of their decisions to be given nationwide effect. It's time for both Congress & the President to reclaim their constitutional prerogatives." – Robert Levetown commenting directly on WSJ.com regarding my letter published March 20 in both the print edition & the online edition of the WSJ. My letter showed how the elected branches of both major parties have given up their turf over the years in favor of the courts providing cover regarding contentious political issues they have no business being in.
Students of landmark Supreme Court cases will instantly recognize that the above highlighted parts of Mr. Levetown's comment refers to the decision in the Marbury v. Madison case of 1803 in which Chief Justice John Marshall & the Supreme Court unilaterally "determined that it had the power to decide cases about the constitutionality of congressional (or executive actions) & – when it deemed they violated the Constitution – overturn them. The shorthand label given to this Court-made authority is 'judicial review'." – Mark Levin, Men In Black, page 30.
Originally, "the courts followed British common law. They ruled on criminal law, matters of equity between individuals & businesses, & other legal matters." Ibid, page 24.
In short, the Constitution contains no such judicial review clause meaning Chief Justice John Marshall & the Supreme Court made the largest power grab in the country's history – & it is the basis of judicial activism today.
Background – In the two week lame duck session from when the election of 1800 was decided by the House of Representatives until President-elect Jefferson took office President John Adams made several changes to the judiciary designed to hinder Jefferson's new administration including, on the day before Adams' term expired, appointing 16 Federalist circuit judges & 42 Federalist justices of the peace. William Marbury was one of these so-called Midnight Judges.
The Federalist Senate approved all of the appointments but in order for the commissions to go into effect they had to be delivered to those appointed. The problem was that there was not enough time for all of them to be delivered before the swearing in of Jefferson who immediately, upon becoming president, told his Acting Secretary of State to not deliver the remaining appointments. Jefferson considered the undelivered appointments void.
Marbury brought his case to the Supreme Court petitioning SCOTUS to command Secretary of State James Madison to deliver his commission. Now we know that John Marshall
sided with Marbury because, for goodness sake, it was Marshall & his brother who were delivering the commissions the day before Jefferson's inauguration – Marshall was not only the Chief Justice of SCOTUS but John Adams' acting Secretary of State. See the referenced post below for my letter published in the WSJ on November 4, 2011.
If there ever was a person who should have recused himself from a case it was John Marshall in Marbury v. Madison, but even so Marshall heard the Marbury case in spite of everything & found that section 13 of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional because it purported to extend the Court's original jurisdiction beyond that which Article III of the Constitution established - thereby denying Marbury's commission.
In essence the case was decided on a technicality, 4 to 0 by the Supreme Court, in President Jefferson's favor in that the Adams' appointments which had not been delivered on time were now null & void. In addition the now Jeffersonian controlled Congress enacted the Judiciary Act of 1802 which abolished the new judgeships created by Adams & the Federalists as described above meaning the electoral process worked – with no need for the judiciary to be involved in the case.
But John Marshall was much more of a master politician in 1803 than he was a Chief Justice of SCOTUS. With a Republican majority elected to both chambers of Congress in 1800 thereby complimenting the Republican President Jefferson, Marshall was scared to death politically of Jefferson. Marshall wanted to stake out what territory he had left & he thought establishing judicial review in the Marbury case was his best way forward – thereby turning a blind eye to both his Federalist friend-Marbury's claim to a judgeship & more importantly to his belief that Madison's refusal to deliver the commissions was illegal & correctible. Another recent comment I received sums this one up – "Doug, I'm sure you are aware of the fact that justice & the U.S. legal system have nothing to do with each other."
Marshall realized the two elected branches could remove him from office & even impeach him. Marshall knew that if he ordered Madison to deliver Marbury's commission that Jefferson would order Madison to ignore the Supreme Court writ thereby weakening the Court's authority. Better to let Jefferson win the case & deliver the coup d'état regarding the Court's judicial review self-proclaimed authority that upset the Constitution's balance of power – a masterful political stroke only if he got away with it.
But Jefferson was not satisfied with a win in the Marbury case because he knew the judicial review part of the ruling was just not right – he immediately saw the danger of judicial review & the plans of the declining Federalists to retain power through the courts when he wrote after the Marbury decision "They (the Federalists) have retired into the judiciary as a stronghold. There the remains of federalism are to be preserved & fed from the treasury, & from the battery all the works of republicanism are to be beaten down & erased."
Jefferson spent the rest of his life arguing against judicial review like in his letter to William Jarvis: "To consider the judges arbiters of all constitutional questions (is) a very dangerous doctrine indeed, & one which would place us under the despotism of an oligarchy. Our judges are as honest as other men & not more so. They have with others the same passions for party, for power, & the privilege of their corps . . . & their power the more dangerous as they are in office for life & not responsible, as the other functionaries are, to the elected control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time & party, its members would become despots. It has more wisely made all the departments co-equal & co-sovereign within themselves."
Think for yourself – if someone is going to decide whether an action of the elected branches is constitutional, or not, would you rather take your chances with the possibilities of terrible decisions by our elected representatives who can be replaced every two, four, or six years or have unelected judges with life tenures overrule your elected representatives with no remedy for decades, if ever in your lifetime. In any case it is going to be human beings deciding the matter – people with human imperfections & frailties just like the rest of us as Jefferson pointed out above regarding judges. It is just common sense for me to want to have every decision as close to home as it can be so that We the People of the United States control our own destiny.
But Jefferson never had to personally worry about the effects of judicial review again during his presidency, or during his life for that matter, because John Marshal never invoked, cited, referred to, or mentioned judicial review again during Jefferson's term in office. Indeed, Marshall died on the bench as Chief Justice in 1835 never bringing up judicial review again after Marbury v. Madison. Only once in the first 81 years of our young constitutional republic was judicial review invoked – in Marbury v. Madison. Presidents Washington, John Adams, Madison, Monroe, Quincy Adams, Jackson, Van Buren, Harrison, Tyler, Polk, Fillmore, & Pierce never encountered judicial review during their presidencies.
I refer to the period from our founding to the Civil War as the liberty to abundance stage of our history – the period in which liberty & freedom were cherished & even worshipped by the people including the elected representatives. The only entitlement people living in this age were looking for was the rights guaranteed by the Bill of Rights – summarized as the freedom from government intrusion in their lives – & there was no judicial activism during this time to turn the world upside down. Today rights are most often thought of as entitlements to something from government like the aid relief package from Superstorm Sandy. People living in the first third of our country's history never had problems waiting for relief packages because the government did not offer any in the first place & the people relied on themselves & were better for it.
After Marbury v. Madison the next case in which the Supreme Court found a law (the Missouri Compromise of 1820) unconstitutional was the Dred Scott v. Sandford decision of 1857 in which seven members of SCOTUS ruled in one of the worst decisions in history that Blacks could not be citizens of the United States. Seven people held that power after all the progress made over the years – a very sad commentary but one that would be corrected.
President Lincoln described judicial review & the Dred Scott decision clearly when he said in his first inaugural address "The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased, to be their own rulers, having to that extent, practically resigned their government, into the hands of that eminent tribunal."
The graph below shows the timeline for how the judiciary has increased the use of judicial review to the point it has become a major tool of judicial activism – what can't be won @ the ballot box is taken to the courts, where judges with lifetime tenures provide cover for our One Big Government party with Democrat & Republican wings who take turns being in power like the one big happy family they are. Since 1999 there have been 22 occurrences of the Supreme Court declaring a law unconstitutional thereby matching the total on the entire 19th century.
The WSJ listed the following examples of recent judicial activism involving state Supreme Courts hijacking policy debates: 1) blocking a teacher tenure reform in NC, 2) pension reform in IL, 3) a charter school law in WA, 4) education savings accounts in NV, & 5) usurping the legislature's authority by redrawing the state's congressional map in PA that will help liberals pick up three or four House seats in November's midterm election.
To paraphrase the great libertarian Rose Wilder Lane - For sixty known centuries millions of people lived on this earth in slavery & famine, suffering one human hardship after another. But not until the unleashing & releasing of human energy, & then only in the United States, did peoples' lives improve so that they no longer lived in floorless hovels without windows & chimneys unable to feed themselves. After six thousand years it took one century for the American genius of limited government, personal responsibility, & free enterprise to create the whole modern world where every convenience is taken for granted.
Judicial activism is one of the self inflicted setbacks to our continued prosperity & progress moving away from statism & its occurrences are increasing as the graph below shows. One of the mindset changes needed today is to recognize the excellence of the first third of our history as described above & work to return to it. Judicial activism is one of the main thieves preventing this return.
Reference Post: The Needed Activist Judge Mindset Change
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