CENTRAL VIEW for Monday, April 18, 2005

Representative Democracy: Can it be restored?

Majority rule is the fundamental premise of democracy-- that the demos (the people) -- get to decide how they shall be governed. Ironically, at a time when our foreign and military policies are spreading democracy through the Middle East, our own judicial branch has assumed a non-democratic ascendancy over the other two branches of government – the executive and the legislative – an ascendancy not warranted by the U.S. Constitution.

Today, a simple majority of five out of nine unelected, lifetime-appointed justices almost routinely substitute their personal opinions for the will of the demos as expressed in legislation and as expressed in voter-approved amendments to state constitutions.

How did this happen? Under the administrations of President George Washington and his successor, John Adams, only members of the ruling Federalist Party had been appointed to the bench. Moreover, just before the Federalists lost control of Congress and the Executive Branch, they passed the Judiciary Act of 1800 – an Act that created more judgeships and Justice of the Peace positions

While lame-duck President John Adams hurried to make judicial appointments under the 1800 Act, some of his Justice of the Peace appointees had not actually received their written commissions before Adams left office. So, one of Adam’s appointees, William Marbury, sued Jefferson’s Secretary of State, James Madison, to force the Secretary to deliver the Justice of the Peace commissions.

Chief justice, John Marshall, was faced with a Hobson’s Choice. If his Court issued a Writ of Mandamus – an order to Secretary Madison to deliver Marbury’s commission -- President Jefferson would ignore it. But if the Court ruled Marbury could not have his commission, it would appear the Court was subordinate to President Jefferson.

So, Marshall finessed the issue by reaching back to the Judicial Act of 1789 and by getting his fellow justices to rule it exceeded the powers allotted to the Court under Article III of the Constitution and, therefore, the Court had no power to issue Writs of Mandamus.

Because Marbury dealt with lowly Justice of the Peace appointees, no one took much notice that Marbury “assumed” that the Court had the authority to declare acts of Congress, and by implication acts of the President, unconstitutional. Moreover, the Court “assumed” final authority over the meaning of the Constitution. So, Marbury v. Madison made the U.S. Supreme Court co-equal to the executive and legislative branches.

President Jefferson liked Marbury because the Federalist appointees would not get their commissions. Too bad Jefferson did not foresee that Marbury would come back to weaken the expressed will of the people by putting the Court in position to overturn the legislative work of elected representatives and the will of the people as expressed in voter-approved amendments to state constitutions. With Marbury v. Madison the camel got its nose into the tent.

But the Court’s real assertion of supreme power came in 1958 when all nine unelected, lifetime-appointed justices of the Warren Court “opined” in Cooper v. Aron that ever since Marbury v. Madison the concept of judicial supremacy was a “permanent and indispensable feature of our constitutional system.” Now, the camel was pushing elected officials (and the demos) out of the tent and into the desert.

Yet there are remedies: (1) The demos can elect Presidents and members of Congress who will nominate and confirm, respectively, judges who understand their role is not to make policy but to interpret the Constitution; (2) Congress, which has total Constitutional power over the lower federal courts, should legislatively bring them back into line; and, (3) Congress, which has the Constitutional power to decide what kinds of cases can be considered by the U.S. Supreme Court, should limit the Court’s jurisdiction only to cases that square up with the powers granted to the Court in Article III of the U.S. Constitution.

Until these steps are taken, we will continue to be ruled by as few as five, unelected, lifetime appointed lawyers who are accountable to no one.

William Hamilton, a syndicated columnist, a featured commentator for USA Today and self-described “recovering lawyer and philosopher,” is the co-author of The Grand Conspiracy and The Panama Conspiracy – two thrillers about terrorism directed against the United States.

©2005. William Hamilton.

Dr. Hamilton can be contacted at:

Email: william@central-view.com