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In 1803, Chief Justice of the Supreme Court John Marshall wrote a majority, five to nothing, decision in the case of Marbury v. Madison.  The nature of the case was not as important as Chief Justice Marshall’s previous position as Secretary of State under President John Adams.  Both were Federalists.  After losing the election of 1800 to Thomas Jefferson, Adams nominated Marshall to the Supreme Court as Chief Justice on January 20, 1801 – two months before his term expired; subsequently he received the consent of the Federalist controlled Senate and was sworn in.

After being sworn in as President, Jefferson appointed James Madison (Marbury v. Madison) as Secretary of State.  Again, the case itself is of little importance except that it allowed Marshall to include in the majority opinion, “Judicial Review”.  This was the opinion that even though the Constitution did not provide specifically for the Supreme Court to declare an act of Congress or actions of the Executive Branch unconstitutional, that if a law or action was contrary to or not empowered by the Constitution, it could be declared unconstitutional.  Neither the Executive Branch nor the Congress did anything about this power grab, which effectively made the judiciary superior to the other branches, because it now had the last word.  What exacerbated this decision was that it extended to the States.  Acts of state legislatures could also be struck down as being unconstitutional, making the Supreme Court and inferior courts, a branch of the federal government, superior to the States, individually or as a union.  Some would say that this was not a power grab, but it did elevate the Supreme Court as superior to the other two branches and the states under the theory of checks and balances.

If we accommodate a Supreme Court of five jurists at that time, and now nine jurists from 1869, making decisions of constitutionality, at least we have a panel of jurists with varying opinions voting.  What is unconscionable is that judges of inferior courts, individuals, now routinely declare acts of entire legislatures and constitutional referendums, whether it be from the States or Congress and even of the citizens of States, as unconstitutional – one person can do this?

Just recently a federal judge declared that the military must eliminate its “Don’t Ask Don’t Tell” policy and thus was attempting to force the military to change to an openly gay policy.  Whether you like the policy or not, should one unelected jurist be allowed to possibly have a detrimental effect or any effect at all, on our armed forces and our national defense structure?  Should one jurist decide how our military is structured?

This decision was appealed – reversed – and stayed, but ultimately “Don’t Ask Don’t tell” is now a law of the past.  One must ask why this case was in an inferior court, since the Constitution stipulates that the Supreme Court is the court of original jurisdiction in cases involving the Federal Government and States, among other cases.

Back to John Marshall’s opinion: the real root importance of the Marbury v. Madison case was an attempt by Marshall, a staunch Federalist, to stick it to Thomas Jefferson, his political enemy.  Yet, now we have given progressively trained, individual jurists supreme power over the States, Congress, and the Executive Branch – this incredulous situation was never intended by the founders.  The separation of powers among the three branches of the federal government and the equality of the branches started to unravel as early as 1803.

This decision, “Judicial Review”, made the Supreme Court unequal and superior to the other branches.  No longer did a check on the authority or decisions of the Court exist.  Congress and the Executive Branch were now junior partners.  The Court was now able to remake our Constitution, write law, and at times enforce the law.  The tearing apart of our Constitution had begun.  For more on this go to FindLaw to learn about the history of judicial review.  For more on the history of Marbury v. Madison go to “John Marshall’s Judicial Mind”.

This is an excerpted chapter from U.S. Constitution: “Sine Die” a sixteen chapter book-blog on how the constitution has been marginalized, abused, or just ignored to build an all powerful federal “central” government.

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The Founding fathers of this longest running uninterrupted democratic republic in the world, The United States of America, understood that each of the three branches of our government left unchecked would try to be the sole driving force of this nation. Thus they gave us a system of checks and balances in our Constitution. The President is the Commander in Chief of our Armed Services, yet he needs the consent of Congress to go to war. Congress can pass bills with a majority vote of both houses, but the President can veto the bill if he doesn‘t agree with it. If the President vetoes a bill, the Congress can override his veto. Congress makes the laws and the President enforces the laws. The President negotiates treaties and the Senate ratifies treaties. The President appoints Federal Judges, Justices of the Supreme Court, Ambassadors, and other federal officials and the Senate must give its consent. The House of Representatives votes to impeach a President or the federal judiciary and the Senate tries the case. The Chief Justice of the Supreme Court presides and a two thirds Senate present must vote to convict.

If we are to literally interpret the Constitution we would find that the Judicial Branch was sort of left out of the checks and balances and was playing a minor role when the Constitution and subsequently the Bill of Rights were adopted. No where in the constitution does it say that the Judiciary can declare a law to be unconstitutional (judicial review). However, in the very early nineteenth century, the Court’s power of judicial review, as it was applied to the constitution, came to be. Under the Constitution, the judiciary’s power did extend to cases of law arising under the constitution, and just about all other activity occurring between states, the federal governments and the states, citizens of different states, between states and their citizens, foreign states and citizens of foreign states and so on.

The Judiciary did receive more power indirectly when the Bill of Rights was adopted. Citizens were now protected and became an additional check and balance to the governing of the nation. The Judiciary is where the Citizenry go to for redress against their State or the Federal government. It was not until, 1803, when Chief Justice John Marshall invoked the power of judicial review and the authority of the Supreme Court to declare a law or actions by a State or the Federal Government unconstitutional, that the Judicial Branch became an equal player in the checks and balances triad. It would appear that judicial review is the most powerful tool of the Court. Well not so fast!

A new tool used by Federal Judges in lower courts, or as the Constitution puts it – inferior courts, is to make rulings that actually through precedent change the law. Here is a case where the checks and balances have failed. A bold approach would dictate that the Executive Branch ignore the new ruling as being outside the domain of the ruling judge, and that the Congress should censure or impeach any Federal Judge who attempts to make law. The heavily partisan nature of our lawmakers lends itself to their inability to take back their right as the sole Federal law making body in the country. The Executive Branch is also at fault by not decreeing that law made by a sitting judge is not constitutional and will not be enforced (no law making without representation).

Unless these actions of the Executive and Congress take place, the checks and balances are gone. It appears that neither the Congress nor the Executive Branch have the power or desire to hold the judiciary in check. Are the “checks and balances” protection built into the Constitution broken and in need of being fixed?

Of course, the Congress and States jointly can change the Constitution, while the Executive and the Judicial Branches have no direct role in amending the Constitution. Do the Congress and the States really need to exercise this gargantuan constitutional effort required to amend the Constitution just to offset some new law made by a judge through precedent or can they just ignore the judges ruling and make him or her go back and do it again and keep doing it until the judge is no longer making law. If the judge does not want to comply, there is always that impeachment thing.

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