CENTRAL VIEW for Monday, September 22, 2003

How appointed judges came to rule America

Ever wonder how folks who were never elected by the people have the power to decide presidential elections or if a recall election can be held or if your children can say “Under God” in the Pledge of Allegiance or if The Ten Commandments can be displayed on public property or if homosexuals can be legally married or if a woman has the right to kill her unborn child or that clearly guilty murderers can go free because some constable couldn’t get the paperwork just right? The answer lies in Marbury et al v. Madison, a U.S. Supreme Court decision that was prompted by petty partisanship.

In 1800, Democrat Thomas Jefferson defeated Republican President John Adams. But before President Adams left office he appointed, and the Senate confirmed, 42 justices of the peace. One of those appointees was William Marbury, a prominent Republican.

Now comes the blatant act of partisan politics that created today’s legal morass of laws being made by appointed judges rather than by the elected representatives of the people: Democrat President Thomas Jefferson ordered his Secretary of State, James Madison, not to deliver the commissions to their rightful recipients. This prompted William Marbury and others to bring suit in the U.S. Supreme Court asking for a Writ of Mandamus – a Court order directing President Jefferson to allow Marbury et al to have their commissions.

Chief Justice of the United States, John Marshall (a Republican) was caught on the horns of a dilemma. On the one hand, it was absolutely clear the wannabe J.P.s were entitled to their commissions. On the other hand, Marshall found himself in a position where the Court had responsibility but no enforceable authority. The federal police powers and the armed forces were under President Jefferson. Marshall was certain Jefferson would ignore a Writ of Mandamus and the Court would be exposed as a toothless tiger.

So, Marshall decided to throw Marbury et al to the wolves by some clever, if twisted, logic that has legal scholars scratching their heads to this day. For Marbury et al, Marshall had good news and bad news.

The good news was: Marbury et al were entitled to their commissions. The bad news was: The Congressional grant of authority in the Judiciary Act of 1789 for the Supreme Court to issue Writs of Mandamus was unconstitutional. Marshall argued Article III of the Constitution limits the “original jurisdiction” of the Supreme Court to “cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be party.”

Marbury et al v. Madison did not fit within those limits, nor was a State involved: Ergo: the Court could not issue the remedy sought. But, by ruling the Judiciary Act of 1789 unconstitutional, Marshall established the principle that legislative bodies can pass all the laws they wish to pass; however, if the Supreme Court says they violate the U.S. Constitution, then those laws are null and void. Ouch!

Marshall’s strict interpretation of Article III was a tactical loss in terms of being able to order the Executive Branch to do this or that and, of course, was a total loss for the justice of the peace wannabes. But it was a strategic victory in declaring the power of the Supreme Court to decide which laws are null and void.

Marbury et al v. Madison is prima facie evidence that petty partisan politics infected the very beginnings of our judicial system. If Jefferson had not been so determined to fill those 42 J.P. slots with Democrats, Marbury et al v. Madison would never have been filed.

And, today, we might not have three rabidly left-wing judges ruling the punch-card voting machines that were accurate enough to elect California Governor Gray Davis are not accurate enough to un-elect him.

The British Parliament has the power to review (and modify) the decisions of their highest court. Something we might consider.

William Hamilton, a nationally syndicated columnist and featured commentator for USA Today, is the co-author of The Grand Conspiracy and The Panama Conspiracy – novels about terrorist attacks on Colorado’s water supply and on the Panama Canal, respectively.

©2003. William Hamilton.

Dr. Hamilton can be contacted at:

Email: william@central-view.com