Sunday, July 13, 2008

Fifty Years of Judicial Tyranny

'MARBURY v. MADISON' in 1803 was the first assertion of the Supreme Court's power of "judicial review". The issue of 'MARBURY v. MADISON' had to do with the appointment of 42 Federal judges by outgoing President John Adams just prior to the inauguration of Thomas Jefferson. Upon assuming office, Jefferson ordered Secretary of State James Madison to withhold delivery of these judicial "commissions" (i.e., the signed and sealed paper documents confirming the appointments) - including that of William Marbury. Marbury filed a case directly with the Supreme Court, seeking to force Madison to deliver his judicial commission (by having the Supreme Court issue him a 'writ of mandamus', as prescribed by the Judiciary Act of 1789).

In writing the unanimous opinion, Chief Justice John Marshall concluded that, in propounding the Judiciary Act of 1789, Congress had overstepped its authority and granted the Supreme Court power to "issue writs of mandamus in cases ... [relating] to any persons holding office under the authority of the United States." According to this decision, the Constitution did not grant the Supreme Court original jurisdiction over judicial appointments and therefore, the Supreme Court was obliged to declare the Judiciary Act of 1789 "unconstitutional".

Thus in this single decision, the U.S. Supreme Court simultaneously refused to accept a jurisdictional authority (which it had been duly granted to it by Congress and the President) while at the same time it assumed the power of "judicial review", a power so overreaching that Congress would never have even contemplated granting such authority. Jefferson (an Anti-federalist) was trapped. He could either accept the ruling of the Court (and so concede to the the federal courts the terrifying power of judicial review), or he could challenge the Court's decision which would entail ordering Madison to deliver the judicial commissions (and thus let Adams' appointees become Federal judges). Of course, Jefferson did what politicians do: he took the path that gave him the short-term political win despite the long-term consequences. Hence Jefferson, in order to gain the executive power to ignore the Judiciary Act of 1789, ceded to the Supreme Court even greater autocratic power, the power to void any legislative Act through the simple expedient of labeling it "unconstitutional".

Perhaps the obviousness of its hubris in assuming such unbridled power explains why the Court didn't again assert this newly discovered power of "judicial review" until decades later. And even when it again did so, it was generally assumed that all three Branches (being sworn as they were to uphold and defend the Constitution) had an obligation to disregard laws that clearly violated the U.S. Constitution. But it wasn't until 1958 in the case of
'COOPER v. AARON', (which arose in the wake of Arkansas' refusal to enforce the Court's 1954 'BROWN v. BOARD OF EDUCATION' Little Rock school desegregation decision) that the U.S. Supreme Court interpreted 'MARBURY v. MADISON' as giving the federal judiciary a monopoly in all matters of Constitutional interpretation.

Note: Chief Justice Warren's claim in the 'COOPER v. AARON' decision, "It is emphatically the province and duty of the judicial department to say what the law is" was not required for the Court to uphold its decision. Protecting the rights of all citizens did not have to entail projecting judicial power beyond all reasonable bounds. The Court was not obligated to claim the exclusive power to strike down any law it didn't like. The Supreme Court grabbed that power simply because it "saw that the tree [of knowledge of good and evil] was good for food, and that it was pleasant to the eyes, and a tree to be desired to make one wise."

Thus, the equating of the Supreme Court's interpretation of the Constitution with the Constitution itself dates only to September 12, 1958. But since 1958, the Court has cited 'MARBURY v. MADISON' no less than ten times to assert its exclusive authority to interpret the Constitution, and each time its assertion of this new dictatorial power has gone unchallenged by both the President and Congress. Of late, even lower Federal courts have grabbed low-hanging fruit from the "tree of knowledge of good and evil" and have begun appointing themselves as legislators and governors.

Thus, there is no longer any effective check on the power of federal judges. All that's required for any court to strike down any constitutionally protected right (whether to pray in public school, to own property without fear of government siezure, to bear arms, or to use ones money to promote a message that's critical of the government) or for the court to enact new law (without the bother of any legislative action whatsoever) is a complainant willing to file a lawsuit.

The 2004 case of
'ROPER v. SIMMONS' dealt with the question of how old a person has to be in order to be given a death sentence. The decision in this case is a particularly egregious abuse of judicial power, going far beyond asserting that the opinion of five unelected justices is superior to an Act of the duly elected Missouri Legislature. By citing the decisions of foreign and international courts, The Supreme Court has declared that the decisions of those foreign courts are more binding than the Acts of any State Legislature. See Section IV of the 'ROPER v. SIMMONS' ruling. Antonin Scalia's superbly argued dissent is particularly compelling.

Now that the Supreme Court has openly declared that the rulings of European courts bear more weight than the acts of our own elected representatives, we have entered the realm of complete judicial chaos. The Court's recent decision (by a mere one vote margin) in
'DISTRICT OF COLUMBIA v. HELLER', which affirmed that the Second Amendment is part of the Constitution, has been touted as a great victory by original constructionists. But such victories are pyhrric if we've already conceded the argument that the Second Amendment means nothing except what five justices of the Supreme Court say it means. Rather than celebrating this "victory", perhaps we who believe in the words "We the People ..." should now be even more concerned. In the fifty years since the Supreme Court threw the farmer out of the farm house, hasn't the writing on the barn of this judicial "Animal Farm" already proven eerily mutable?

So has the time now come for a Constitutional Amendment that gives Congress the power to block judicial rulings of "unconstitutionality"? (I don't mean reviewing the decision itself; Congress is already conducting far too many political trials in the name of "hearings".) I'm asking if we ought to check the judiciary's power to arbitrarily void any law it thinks some foreign court might not like.

What do you think?


Jerry said...

Good analysis.

While I was happy with the outcome of "Heller" it was disconcerting that, in the words of a Wall Street Journal editorial, that a Constitutionally enumerated right came within one vote of being excised from the Constitution.

I am still looking for that "right to privacy" that is the basis of such lunacy as Roe v. Wade.

Bob said...

I'm still scratching my head about how the First Amendment came to mean "Christians must be muzzled in public places".

GUYK said...

When a president has the public behind him he can stand up to the courts and get by with it..RE: Andrew Jackson and the removal of the Cherokee from Georgia to the Indian Territory.

The court seems to have a way though of reflecting popular public opinion...the Heller outcome was an indication of that as well as Roe vs Wade.

But like jerry says..I have never found that right to abortion in the constitution...

Bob said...

Thanks for dropping by. You're right about the Court's decisions tending to track with public sentiment, and perhaps that's what most troubling. Modern society's narcississtic notion (Words mean nothing more than what they mean to me) is typified by today's Supreme Court. Rational discourse becomes impossible when each person is free to assign his own meanings to words and rational jurisprudence falls to the whims of whoever wields the gavel or the gun. It's scary to realize the the gavel is just one vote shy of siezing all the guns.

diamond dave said...

We might start by having a declaration somehow, somewhere (maybe something like the Monroe Doctrine) that the USA tends to it's own domestic affairs and no foreign entity (Europe, the UN, the World Court, etc.) may interfere or dictate policy to us, and their decisions have no jurisdiction or binding status on any domestic matter within the country. That would cut out foolishness like the World Court trying to impose it's will on the state of Texas regarding executions. And the Supreme Court would have to look into the Constitution and domestic law for interpretation, rather than foreign opinion.