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Monday, July 7, 2014

Chief Justice Marshall: Rule of Law Usurper & Poster Child for the Anti-Constitutional Lobby

Judicial Supremacy: How Did this Far-Fetched Claim Originate?

The supremacy of Supreme Court opinions in questions of constitutionality has evolved into an indisputable doctrine in the United States. Virtually nobody, particularly in the legal community, question the idea that the Court serves as the final decision maker when it comes to the Constitution. This view is nonsense.

John Marshall's 1803 opinion in Marbury v. Madison serves as the cornerstone of this doctrine. After all, Marshall declared, "It is emphatically the province and duty of the judicial department to say what the law is."

On Feb. 27, 2013, I testified before a Tennessee Senate Committee on a proposed Second Amendment Preservation Act and argued that modern legal scholars snatch Marshall's words out of context. He never intended to imply that the Supreme Court was the sole and final arbiter on all things constitutional. The Chief Justice was merely asserting that the Court can, in fact, strike down an act of Congress by calling it unconstitutional. Nowhere in his opinion does Marshall hold that the Court has exclusive authority to rule on constitutionality, but places the power in the courts, along with the other branches of government.

The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

I expanded this argument in a subsequent article titled Nullification for Lawyers.

Marshall was answering a specific question: does the Court have the authority to consider the constitutionality of an act when ruling on a case. At issue was a provision of the Judiciary Act of 1789 and whether the Court had original jurisdiction to decide if a writ of mandamus could be issued to force Madison to hand over Marbury's commission. Some argued the court should just consider the law – the Judiciary Act itself – and not the Constitution.  Marshall defended his decision to rule based on the Constitution.
The judicial power of the United States is extended to all cases arising under the Constitution.
"Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?
"This is too extravagant to be maintained."

In an August 2010 paper for the Constitution Project titled "Judicial Supremacy: How Did this Far-Fetched Claim Originate?" (available to read in full below this article) constitutional scholar Louis Fisher launches an in-depth analysis of the Marbury decision and arrives at the same conclusion: Marshall never intended to assert absolute superiority of the Court. In fact, Fisher calls the notion "nonsense."

Much nonsense has been written about Marbury v. Madison (1803), especially in recent decades by the Supreme Court. Yes, it represents the first time the Court held a statutory provision of Congress to be unconstitutional. However, other extravagant claims, including judicial supremacy, would be disowned by its author, Chief Justice John Marshall. By placing a public stamp of approval on judicial review, the Court formally recognized what was obvious: that elected branches are subject to the constraints of the Constitution. That elementary point is on public display every time elected officials take their oath of office. The more interesting issue is who gets to decide what is unconstitutional and whether that decision is in any sense final. In our democracy no branch is final on constitutional questions.

Fisher begins by tracing the origins of "judicial review," through England, during the colonial period and in the founding era, pointing out that nobody can definitively say just how much power the founding generating intended to give the courts. He quotes constitutional scholar Edward S.Corwin, "These people who say the framers intended [judicial review] are talking nonsense; and the people who say they did not intend it are talking nonsense. There is evidence on both sides."

Fisher then delves into the Marbury case itself, exposing a little known fact: Marshall had a major conflict of interest and should have recused himself from the case. As the Adams administration prepared to relinquish power to Thomas Jefferson, Marshall was still was serving as secretary of state. It was actually his responsibility to deliver Marbury his commission. Marshall failed to do so because of "last minute pressures and burdens."

Marshall should not have participated in the case. His previous involvement as Secretary of State and his failure to deliver the commissions to Marbury and others disqualified him. He should have recused himself. The conflict of interest was so great he could not possibly claim impartiality, a quality essential for those who judge.

Looking at the opinion itself, Fisher concludes that much of what Marshall wrote was actually extra-judicial. Marbury found that the Supreme Court lacked jurisdiction to hear the case, but then went on to lecture Jefferson."To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right."

Fisher points out that in 1928 Andrew C. McLaughlin observed, "we must come to the conclusion that everything said by Marshall concerning Marbury's title was distinctly unauthoritative and in no sense constituted a decision. It was legally valueless. If there is anything fundamental in law, I should say it is that the acts of a court wanting jurisdiction are void."
Chief Justice John Marshall - Poster Child for the Anti-Constitution Lobby

McLaughlin went on to argue that Marshall essentially created a legal construction out of thin air. "The learned Justice really manufactured an opportunity to declare an act void."

But the central question remains: did Marshall intend the court to stand as the sole and final authority of all things constitutional? Fisher comes to the same conclusion I did – no, And he makes a similar argument.

Charles Hobson, a scholar of John Marshall, correctly stated that the language "emphatically the province" does not imply "any claim to judicial supremacy in expounding the Constitution or to exclusive guardianship of the fundamental law."

Fisher takes a Jeffersonian view, asserting that the various branches of government share responsibility for determining constitutionality. He references as letter from Jefferson to Abagail Adams.

"You seem to think it devolved on the judges to decide on the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them." In articulating the doctrine of coordinate construction, Jefferson said that each branch was "independent in the sphere of action assigned to them." Judges could fine and imprison someone, but the President under his independent power of pardon could then "remit the execution of it." Giving judges the right to decide exclusively a constitutional question "would make the judiciary a despotic branch."

Fisher does find Merits in the Marbury decision, specifically Marshall's political astuteness.

Marbury deserves praise not because of Marshall's command of constitutional principles, but for his political skills… At the time of Marbury, the national judiciary was an endangered branch. Marshall's genius lay in his political sophistication of what a Court may and may not do.

Marshall never again used judicial review to strike down an act of Congress. Instead, he used judicial opinions to expand the powers of the national government. "In a series of cases he fortified national power over the states. His decisions were largely political, not legal," Fisher wrote.

In the years since the Marbury decision, the Supreme Court has relied on the words of Marshall to claim for itself unquestionable, absolute constitutional authority. But as Fisher points out, we should always suspect any institutions' own claim on power. In fact, the Supreme Court was never given constitutional supremacy.