The Supreme Court Seizes Power - Part 2

Marshall had a problem: He knew the Court had no enforcement powers. He also was aware that Thomas Jefferson and his former boss, John Adams, were bitter political rivals and Jefferson was none too fond of Marshall; he knew if the Court issued a mandamus, ordering James Madison to deliver Marbury’s commission, the president would likely instruct Madison to ignore it. Marshall, ever the shrewd lawyer, decided to make a virtue out of necessity. He would give Jefferson what he wanted—he would not issue the mandamus—but he would do it in a way that grabbed power for the Court. He would invent judicial review.

Knowing he could not rule against the president, he needed to figure out a way to estaablish that the Court had jurisdiction to rule on such matters, and to overturn an act of Congress.

Ruling on the "constitutionality" of the law was not necessary to determine the outcome. Marshall could simply have said that with the separation of powers, and the checks and balances specifically enumerated in the Constitution, he had no power in mandamus to compel the president to do anything. But while that was true, saying that would not have served his purpose—to expand the Court's power.

In a three-part analysis, Marshall said Marbury had a right to his commission; he said Adams’ “signature is a warrant for affixing the great seal to the commission; and the great seal is only to be affixed to an instrument which is complete.” Secondly, Marshall opined that if Marbury had a right to the commission, then the laws of the country must provide him a remedy. It was in the third part that he got tricky. Marbury had asked the Court for a writ of mandamus to compel James Madison to deliver the commission, signed by Adams, that Madison was holding.

By misdirection that would make a slight-of-hand magician feel proud, Marshall cited a precedent that did not exist: He appears to have referred to a “case” which was a blend of several cases; even in the aggregate, the cases did not give him the precedent he was claiming. But he said it did.

The “case,” which he never named, did give him part of what he wanted; it/they also had some insurmountable problems that, if acknowledged, would have been fatal to Marshall’s cause. He took what he wanted and, like modern Supreme Court Justices, conveniently ignored the parts that were not helpful. Marshall never named the case; in all probability, it was not “a” case but a group of Court actions known as the “pension cases.” (It was customary then, as now, to name any cases you cite as precedent).

Having determined that there was a right to the commission, and the laws afforded Marbury a remedy, Marshall framed the third part of the analysis by asking, was the remedy a writ of mandamus from the Supreme Court? Marshall then went into a Machiavellian reading of the Constitution’s grant of power to the Court, finding nothing in the Constitution itself granting the Court the power to issue a writ of mandamus under its original jurisdiction. Marshall further noted that Congress has power to set rules and regulations for the Court’s appellate jurisdiction; Marshall said the Judiciary Act of 1789 giving the Court mandamus power under its original jurisdiction was unconstitutional.

The Constitution granted the Court original jurisdiction (cases filed directly in the Supreme Court) only in “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” [Const. Art.3, sec. 2]. A case filed in any court other than the Supreme Court, then appealed to the Supreme Court, comes under the Court’s appellate jurisdiction.

This was a master stroke of clever lawyering. Marshall was saying, in effect, that to avoid a writ of mandamus directed to the president, which the Court could not have enforced anyway, the Court had to find that the law passed by Congress was beyond the Congress’ power. The Constitution granted the Court no such power; therefore, a law that attempted to grant that power was in violation of the Constitution, i.e. was “unconstitutional.”

This was quite a novel idea, and more than a little disingenuous, given the federal courts, including the Supreme Court, had been accepting the authority of the Judiciary Act, and issuing mandamus under that authority, for years.

Marshall also ignored the fact that the pension "case" that he had just relied on in his mandamus discussion appeared to raise the same jurisdictional problem he faced in Marbury. Whichever mandamus action one considers, whether the one brought by Attorney General Randolph or the one brought by the veteran Chandler, each was an original motion in the Supreme Court seeking a writ of mandamus directed to an executive official. The Court accepted those cases and issued a ruling. Marshall could not have been ignorant of the fact that the jurisdictional posture in those cases seemed to be identical to the one in Marbury.

Thomas Jefferson was furious.

With the furor over that ruling, and other alleged misconduct by the Court, (Associate Justice Samuel Chase was impeached by the House of Representatives and was the subject of removal hearings in the senate) Marshall, in fear of impeachment, essentially admitted that judicial review was not necessary under our system of law. Marshall suggested that Congress could just re-pass any law the Court found unconstitutional. He also offered to abandon judicial review altogether if Congress would give its pledge not to impeach him.

The senate, by a sizeable majority, voted against Chase. However, they could not muster the two-thirds vote necessary to remove him. Marshall, seeing that they could not remove Chase, and believing now that Congress could not impeach him either, withdrew his offer to abandon judicial review.

Marshall’s legacy is an imperial Supreme Court that is now busy writing its own Constitution by issuing “interpretations” which are de facto “CONSTITUTIONAL AMENDMENTS.”

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The Supreme Court Seizes Power

It all started with the Supreme Court’s unlawful grab for power in Marbury v. Madison.

The present day "news junkie" who follows the political bickering in Washington D.C. would have felt very much at home reading about John Marshall’s judicial coup d’etat foisting off judicial review on the country. The maneuver had everything to do with partisan politics and, incidentally, a little to do with how the courts would exercise power in the future.

On the first day of law school, most first-year students learn about Marbury v. Madison (1803) and the concept of “judicial review” which flows from it. (Judicial review is the process whereby the Court can review an Act of Congress and rule that the Act is “unconstitutional”).

Marbury is introduced on the opening day of law school, I suspect, for two reasons: (1) it is the concept which defines where modern courts get their power; and (2) law school professors want to begin “brainwashing” their students before their students learn enough law to say: “Wait a minute, Marshall can’t do that! He has no authority—and he has a conflict of interest."

Nothing in the Constitution gives the Supreme Court the power of judicial review. On the contrary, the men who wrote the Constitution had considered and rejected giving that power to the Court. Justice Felix Frankfurter, writing in W.Va. State Bd. of Ed. v. Barnette (1943) reminded the Court:

The framers of the federal Constitution might have chosen to assign an active share in the process of legislation to this Court. They had before them the well-known example of New York’s Council of Revision, which had been functioning since 1777. . . . But the framers of the Constitution denied such legislative powers to the federal judiciary. They chose instead to insulate the judiciary from the legislative function. They did not grant to this Court supervision over legislation.

In the election of 1800, Thomas Jefferson defeated John Adams; Jefferson’s party also took over Congress, inflicting on the Federalists a defeat from which they never would recover - but the Federalists weren’t done yet.

Between the time Jefferson was elected and when he was sworn into office in March, the lame-duck Federalists set out to make Jefferson’s life as miserable as possible. Adams hastily filled the vacant position of Chief Justice of the Supreme Court with one of his own men, appointing John Marshall, his Secretary of State, to fill the post. Now Marshall was both Secretary of State and Chief Justice for the remainder of Adams’ term.

The Federalists rammed legislation through Congress overhauling the court system, creating new judges and another Act creating new magistrates; Congress decreed that with the next vacancy on the Supreme Court the number of justices would be reduced from six to five. Jefferson thus would be denied the chance to appoint a Supreme Court justice whenever the next vacancy occurred.

Against this background of political shenanigans, William Marbury was among the last minute appointments to be a federal magistrate. He was confirmed and Secretary of State Marshall scurried to get Marbury’s commission signed by the president; then Marshall affixed the Great Seal of the United States and tried to get all of the commissions delivered before Jefferson was sworn in the next day. Alas, so many appointments. So little time. Marbury’s commission could not be delivered.

Jefferson ordered his new Secretary of State, James Madison, to withhold delivery. Marbury filed suit in the U.S. Supreme Court to force Madison to deliver the commission. The case was styled Marbury v. Madison.

By now, John Marshall was just the Chief Justice of the United States Supreme Court. He stopped being Secretary of State when John Adams left the presidency. But in the Marbury case, Marshall would be ruling on the legality of his own actions back when he was Secretary of State, preparing Marbury’s commission. The person (but not the office) of the Chief Justice was an eyewitness and a participant in the case before the Court! That’s about as clear a conflict of interest as any judge may ever find himself in.

To put that in a modern context, an American citizen named Yaser Hamdi was captured on the battlefield in Afghanistan. Hamdi was armed and was fighting alongside the Taliban against the U.S. and the Northern Alliance. He was brought back to the U. S., confined to a Navy brig in South Carolina, and held as an enemy combatant. Hamdi sued Secretary of Defense Donald Rumsfeld charging unlawful detention.

Let me pose a hypothetical:

What if Rumsfeld had been appointed by President Bush to be the new Chief Justice of the Supreme Court while that case was pending? Rumsfeld would now preside over the Court and rule on whether his actions, as Secretary of Defense, were proper in holding Hamdi without a judicial hearing. Would Rumsfeld’s conflict of interest be any more outrageous than Marshall’s presiding over a case about himself as Secretary of State?

If there is any difference at all, Marshall’s conflict of interest was even greater than Rumsfeld’s in my hypothetical: Marshall was already the Chief Justice of the Supreme Court at the same time he was Secretary of State performing the act that was the basis of the suit. Rumsfeld would only be ruling on the action of one of his subordinates in a very large organization, whereas Marshall ruled on a case in which his own personal actions while Secretary of State were at the heart of the suit.

But that conflict of interest is only the beginning: Marshall’s convoluted logic, and the “magical” use of highly questionable legal precedent in the Marbury case is a feat of legerdemain worthy of David Copperfield - or Houdini - as Marshall seized power for the Court AND escaped impeachment.

(To be continued)

Tomorrow: Marbury v. Madison

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The Court's First Amendment to the Constitution

The United States Supreme Court is currently considering two cases (Van Orden v. Perry and McCreary County v. ACLU of Kentucky) which challenge displays of the Ten Commandments. The Court will consider “is it lawful to display the Ten Commandments on government property?” But the question we should be asking is, “who gave the Court the jurisdiction to hear that argument in the first place?”

The First Amendment, adopted in 1791, says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There was no mention of the Supreme Court because the people who drafted the Constitution never considered the Supreme Court lawmakers. Discussions of “judicial review” - the power of the Court to consider whether legislation passed by Congress was “constitutional” - proved to be highly controversial. So controversial, in fact, that had the power of judicial review been included in the Constitution, it is highly probable that the Constitution could not have been ratified.

The Supreme Court did not create the power of judicial review until some 12 years had passed - after the dust had settled from the Revolution and the debates over adopting the Constitution. In 1803, the Court handed down a decision in Marbury v. Madison wherein it claimed for itself the power to overturn an Act of Congress. There is no authority for such a decision in the Constitution; in fact, as pointed out in the previous paragraph, the founders specifically rejected the power of judicial review for the Court. The Marbury case is the first time the Supreme Court unilaterally amended the Constitution. By “interpretation,” it created something in the Constitution that wasn’t there before.

The First Amendment language, “Congress shall make no law . . .” should be read as “the government shall make no law prohibiting the free exercise [of religion].” At the time the Bill of Rights was adopted, Congress was the sole and exclusive lawmaking body. If the founders could have conceived, in their wildest imagination, that the Supreme Court would one day seize the power to make law, you can be sure the First Amendment would also have prohibited the Supreme Court from interfering with religion.

There is no dispute that the First Amendment restricted only the federal Congress from making laws that may curtail freedom of religion. The Bill of Rights were meant to restrain the power of the federal government. For the first 134 years after their adoption, the federal Bill of Rights were used as authority only in federal cases, although most states had similar provisions in their state constitutions. It was not until Gitlow v. New York (1925), that the Fourteenth Amendment “incorporated” the First Amendment right of freedom of speech and of the press in order to overturn a state law.

The modern Congress has abdicated its responsibility to keep the Court in check – article III of the Constitution says the Court shall have “appellate Jurisdiction both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.” Under the plain words of the Constitution, Congress can make exceptions to the Court’s jurisdiction and remove entire classes of cases (including religious freedom cases) from consideration by the Court.

The Court must also depend on the Executive Branch to enforce its orders. When the Court makes one of its far-out pronouncements, with no constitutional authority, the president could “just say no!” Andrew Jackson reportedly said, “[Chief Justice] John Marshall has made his decision, now let him enforce it!" Historical evidence is scant that Jackson ever actually uttered those words but they certainly reflect his personality and his approach to governing.

There can be no mistake, however, that President Abraham Lincoln openly defied the Supreme Court when he issued the Emancipation Proclamation, freeing the slaves. The Court had ruled in the Dred Scott case that Americans of African descent were mere property with no rights.

So, if the Congress and the president won’t use the power they have to restrain the Court, what’s left? One thing would be a constitutional amendment giving Congress the power to override the Court by a two-thirds vote as it now can do with a presidential veto. However, if Congress will not use the power it already has to restrain the Court, it may not have the chutzpah to initiate such an amendment. In the absence of action by Congress, the states could initiate the amendment. Failing that, the only other solution may be civil disobedience. More about civil disobedience in a future essay on this site.

Let me be clear about one thing - I am not a strong supporter of ostentatious public displays of religion. In Matthew 6:5-6 (KJV) we read the words of Jesus,

5. And when thou prayest, thou shall not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

6. But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to the Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

I think you should quietly live your faith every day and let people see your religion, if any, in your good works. When I meet a stranger, and he immediately starts telling me what a “good Christian” he is, I always put my hand on my wallet – not to make a contribution but to make sure he doesn’t pick my pocket.

But whatever ambiguity I may have about public displays of religion, I am absolutely convinced that the Supreme Court has no legitimate power to prevent such displays – nor the display of the Ten Commandments, nor the killing of chickens to perform Voodoo ceremonies.

The Court has no business interfering with anybody’s religious freedom.

Justice Kennedy's Constitutional Amendment

I watched on TV as the president took the oath of office in January. I have since had occasion to wonder if he knew at the time that he was promising to “preserve, protect and defend” whatever Justice Kennedy might be thinking over the next six weeks or so? Surely not. He certainly didn’t say those words. What he said was:

I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

But that begs the question – what is this Constitution the president swore to “preserve, protect and defend?” That used to be an easy question to answer.

It was a document that gave certain enumerated powers to the federal government and reserved all powers not specifically spelled out in the Constitution for the states and for the people. It gave the lawmaking power specifically and exclusively to Congress and gave Congress the sole authority to initiate amendments to the Constitution, which then had to be ratified by the states before they become law. Simple stuff.

But not any more. Beginning with FDR's “court-packing” scheme in the 1930s, accelerating exponentially with the Warren Court in the 1950s, the Constitution has become what five justices of the Supreme Court says it is on a given day. For example:

On March 1, 2005, Supreme Court Justice Anthony M. Kennedy amended the U.S. Constitution. He decided it was unconstitutional for states to execute any person who was under the age of 18 at the time they committed a capital crime. The case was Roper v. Simmons. Since it required five votes, why do I single out Justice Kennedy?

In a 1989 case, Sanford v. Kentucky, Kennedy was in the plurality that upheld the death penalty for criminals who were under 18 when they committed their crime. Between 1989 and 2005, several of the more liberal justices retired and were replaced by equally liberal justices; moderate Byron White was replaced by liberal Ruth Bader Ginsberg, the very liberal Thurgood Marshall was replaced by conservative Clarence Thomas, but the 4-to-4 split on the Court remained essentially unchanged with Justice O’Connor deciding the close ones.

Then, in the days leading up to March 1, 2005, Justice Kennedy changed his mind. Having said in Stanford that the Constitution allows the execution of criminals who were under the age of 18 when they committed their crime, in Roper he said the Constitution does not. In other words, he amended the Constitution. Before Roper it was constitutional for states to execute criminals who were under 18 when they committed their crime, after Roper it wasn’t.

The crime in question was particularly depraved because 17-year-old Simmons had bragged to his friends that he could commit murder and get away with it because he was a juvenile; Justice Kennedy wrote,

Before [he committed the crime], Simmons said he wanted to murder someone. In chilling, callus terms he talked about his plan, discussing it for the most part with two friends . . . Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge. Simmons assured his friends they could ‘get away with it’ because they were minors.

Simmons then proceeded to carry out his plan exactly as described. He bound and gagged his victim and threw her off a bridge while she was still alive. She drowned. But that didn’t impress Justice Kennedy who thought juveniles of any age [theoretically, and in law, even a day shy of their 18th birthday] were not as morally culpable as adults [who may be celebrating their 18th birthday]. What a difference a day makes. Kennedy’s judgment was influenced by, among other things, an Amicus brief filed by the American Psychological Association [which opposes the death penalty under all circumstances] saying that juveniles lack the maturity and understanding to be fully culpable for their crimes.

Justice Scalia pointed out in his dissent that the same American Psychological Association believes juveniles - no matter how young - are mature enough to have an abortion without parental consent. Justice O’Connor wrote:

The Court’s decision today establishes a categorical rule forbidding the execution of any offender for any crime committed before his 18th birthday, no matter how deliberate, wanton, or cruel the offense. Neither the objective evidence of contemporary societal values, nor the Court’s moral proportionality analysis, nor the two in tandem suffice to justify this ruling.”

This blog is not about the death penalty. I express no opinion on the death penalty generally, or about the execution of juveniles in particular. My thesis is Supreme Court decisions, changing the Constitution by “interpretation,” are de facto “constitutional amendments.”

Reading books by Mark Levin (Men in Black) and Judge Robert Bork (Coercing Virtue) has reinforced my own view on this issue, although I wrote about the problem before reading either. [See: e.g. http://64.177.149.242/ “Let’s Restore The Balance” © 2003]. We need to restore the constitutional balance between Congress and the Court. But we can do that only when citizens understand what it is the Supreme Court does; Professor Walter Williams said it best: “how would you like to play poker with me using living rules that I get to interpret?”

My goal is to help citizens understand that the Supreme Court routinely amends the Constitution – it changes the rules. To paraphrase Dr. Williams, “how would you like to practice law before a Supreme Court using ‘living rules’ that they get to interpret?”

"The Supremes are coming, The Supremes are coming"

The U. S. Supreme Court decision in Roper v. Simmons handed down on March 1, 2005, is getting a lot of ink but should anyone be surprised?

That decision is merely another in a long series of Supreme Court cases that legislate from the bench. Indeed, the United States Supreme Court unilaterally and routinely amends the United States Constitution! The Court does not ask Congress for a two-thirds vote on the issue nor does it send the proposed amendments out to the states for ratification. It just dictates what the new Constitution is. One of many such cases is Roe v. Wade. Justice Blackmun wrote:

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or Individual Justices have, indeed, found at least the roots of that right in the First Amendment, in the penumbras of the Bill of Rights, in the ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal rights that can be deemed 'fundamental' or 'implicit in the concept of ordered liberty' are included in this guarantee of personal privacy.'

The Court admits that it can find no right of privacy in the Constitution; the Court could not even find any solid precedent in its own prior rulings that extended a "right of privacy." It had to resort to a mushy amalgam of prior decisions, some nebulous "penumbras of the Bill of Rights" (whatever that means) and the common law to find the "right of privacy." From that shaky springboard, the Court leaped to the right of a woman to have an abortion.

I express no opinion on Roe v. Wade or a woman's right to choose. My thesis is that the decision should have been made by the legislature and not by an activist Court. Before that decision, there was no constitutional right to have an abortion. After the Roe decision there was a constitutional right to have an abortion. Play whatever semantic games with you will with that, it is a de facto constitutional amendment.

If you trace the history of judicial activism, the Machiavellian Marbury v. Madison (1803) decision claiming for the Court the right of "judicial review," a concept considered and then rejected by the men who framed the Constitution, was a masterful bit of lawyering. It also was a direct attack on the balance of powers set out in the Constitution; it set the stage for the modern Court's animosity toward religion, rejection of the rule of law - substituting the fiat of judges - and decisions that substantially limit the president's ability to protect us from foreign enemies.

This blog will present some facts about the Supreme Court - many in the form of direct quotes from published Court opinions - showing the Supreme Court's anti-democratic trends, and the disdain the Court shows for representative government, then will ask: "How Dangerous Are They?" The Court has usurped the legitimate lawmaking power of Congress and amends the Constitution whenever five justices can agree on what amendments are in keeping with their "feelings" and "intuitions" - we need to restore the balance.