"Marbury v. Madison" and its Constitutionality --- Revisited
"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)
John Marbury, a man whose name would never have been remembered to history, had he not really wanted a commission as a U.S. Consul
Introduction
Several significant decisions handed down by the U.S. Supreme Court at the end of its 2022-23 session, such as the one in the matter of discrimination in publicly offered services on the basis of personal religious belief, and affirmative action providing for racial preferences in the matters of admissions policies of private institutions of higher learning, have raised a great deal of controversy. Indeed, they are oddly contradictory. In the matter of whether or not a person offering services in the public square, with the benefit of public funded services like pure water supply and sanitary sewage disposal, public safety services, and street maintenance, could discriminate on the basis of, as noted, a personal religious belief, they could. On the other hand, a private institution of higher education, the beneficiary of the same public services, could not discriminate in the matter of offering its services to a minority which, in its view, has suffered from discriminatory practices over a period of several centuries.
With these kinds of religio/ideological decisions, the Court, in addition to their substance, has also raised the matter, once again, as it has so often been considered in the history of U.S. Constitutional law, of whether the Supreme Court does indeed have the powers that it has aggregated to itself since the time of its decision in the case of "Marbury v. Madison" (1803). At that time, under the leadership of the then-Chief Justice John Marshall, it did so. In several subsequent cases in the Marshall Era, the Court also arrogated to itself the power to review actions of the actions of the other two branches of the Federal government, and of the State governments as well.
A current review of significant discussions of the matter of the Supreme Court's power, where it comes from, and its Constitutional legitimacy can be found here. One prominent contemporary view of how the Supreme Court's' power to review the Constitutionality of decisions of the other two branches of the Federal government, which has led over time to a very broad reach for Supreme Court power, well beyond the matter of "standing" which was at the center of the controversy in Marbury v. Madison, was expressed by Prof. John Meacham of Vanderbilt University. He is a prominent Presidential historian and authority on the history of the Constitution and Constitutional law. On a recent broadcast of the MSNBC AM news show, "Morning Joe" he characterized the Supreme Court's review power as established by Marshall, in words to the effect of: "Well, he just more or less made it up." This column is based on a previous column of mine that dealt with this subject.
How Might Marbury v. Madison be Overturned (by, however, Reactionaries, not Liberals-Progressives)
In 1996 I published the first version of a book entitled "The 15% Solution." Under the fictional authorship of one "Jonathan Westminster." (That was a play on the name of Jack London. In 1908 he had published a book entitled The Iron Heel, which, before the first fascist state in history came into existence [Hungary under Admiral Miklos Horthy in 1919], predicted a future fascist United States.) My book (now in its 3rd version) is a "future history" purportedly published in 2048, on the 25th anniversary of the conclusion of The Second Civil War, which re-established Constitutional Democracy in the United States. In this "history," I indeed had a Chief Justice "Steps" (Scalia, get it) write an opinion in which in Marbury v. Madison and the cases decided after it were reversed, opening the way for the establishment of totally untrammeled Executive Branch power. For a fascist government it would be essential that its actions not be subject to any kind of judicial review, even by a Court which on paper would be considered favorable to it.
I reproduce for you here major excerpts from chapter 5 of the book, which presents the (fictional) narrative of how this happened.
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"Summary of the Decision (Supreme Court Bulletin)
"Supreme Court Has No Constitutional Review Authority"
"Anderson v. Board of Education, Certiorari to United States Court of Appeals for the Third Circuit."
"No. 101-11. Argued October 31, 2002, Decided May 13, 2003."
"Petitioner, a parent acting on behalf of her minor child, brought a civil action against the Board of Education of the state of New Jersey seeking to prevent it from enforcing a law passed during the 2001 session of the State Legislature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Supreme Court. With out arguing the merits, respondent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, generally known as the 'Helms Amend ment [1],' the U.S. S preme Court did not have jurisdiction in this case.
"Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Further, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its 'constitutionality.'
"(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: 'The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affect ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states.'
"(b) It is clear that the plain language of this article supports the holding of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Constitution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say. It thus be comes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court 'judicial re view' for 'constitutionality' were based on faulty legal reasoning.
"(c) In the first of these cases, Marbury v. Madison, the Court invalidated an 'Act of Congress' giving the Court jurisdiction to hear original applications for writs of mandamus, because in such cases the Constitution limits the Supreme Court to appellate jurisdiction" (Cox). While that opin ion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law. Rather, as in Great Britain, the legislative branch, through the will of the majority, is the only appropriate judge of the 'constitutionality' of its own acts. In his written opinion, the Chief Justice stated that if 'the courts lacked the power to give sting to constitutional safeguards . . . , the Legislative and Executive Branches might too often override the Constitution' (Cox). That may well be true. But if the Founding Fathers had wanted to give the Federal judiciary that 'protective' function, they would have clearly writ ten it into the Constitution. Chief Justice Marshall was reading into the Constitution words that he wanted to see but were not there.
"(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Supreme Court's review powers to include decisions made by the State courts (Cox). Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there. In Cohens v. Virginia Chief Justice Marshall affirmed Justice Story's conclusion in Martin, using the same faulty reasoning (Cox).
"(e) Finally, in McCulloch v. Maryland, Chief Justice Marshall not only reaffirmed the Court's review authority, unstated in the Constitution, but found in it other 'implied powers,' giving the Congress authority to undertake actions not otherwise specified by the Constitution (in this case renewing the charter of the United States Bank which it had originally established in 1791) (Cox).
"(f) After extensive review of the opinions and reasoning in the decisions made in the afore-mentioned cases, careful review of the language of the Con stitution itself, and a consideration of the available evidence on Original Intent, the Court was able to find no basis for the conclusions on 'implied powers' that Chief Justice Marshall and his colleagues drew in those decisions referable to the authority of either the Supreme Court or the Congress. Thus, the Court held, the precedents established by those cases and all their successors down through the years were based on faulty reasoning and a reading of the Constitution not in accord with the Doctrine of Original Intent. Thus, those faulty precedents must be abandoned. Since the specifics of Marbury, Martin, Cohens, and McCulloch had long since become moot, the Court chose not to reverse those decisions. However, it did reverse the holdings made in those cases that the Supreme Court had any power to review the actions of the Federal Executive and Legislative branches or any State courts for their 'constitutionality.'
"11 F. 11th 111, Affirmed. Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting."
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"Author's Commentary" (that is, excerpts from what the "author" of the book, Jonathan Westminster, wrote about the "decision").
"Anderson v. United States was the most signifi cant decision handed down by the Supreme Court in the old United States since Marbury v. Madison, re ferred to in the decision summary reproduced above. In that case, Chief Justice John Marshall had established the power of the Supreme Court to review actions of the two other branches of the Federal government. As correctly noted by Chief Justice Steps that power is no where clearly grant ed to it by the Constitution itself. Nevertheless, Mar shall said, if the Supreme Court found such actions to be unconstitutional, they were null and void. His reasoning went as follows (Cox):
" 'The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.' "
"Marshall, of course, held that the 'former alternative' was true, its truth found in the fact of the Constitution itself. He then drew the defensible conclusion that the body given the power to adjudicate disputes arising under the Constitution, and Article 3 Section 2 surely did that, indeed had the power to review the actions of the other two govern mental branches for their constitutionality. That authority was extended to the appellate review of state court decisions having constitutional implications under the defensible conclusion that by ratifying the Constitution in the first place, the states had ceded to the Unit ed States that appellate jurisdiction, which is clearly contained in Article 3 Section 2 (see the decision in Cohens).
"Once the Court under Marshall's leadership had made those judgments, the full American power structure quickly came to agree with him. The Jeffersonians did make several modest attempts to undermine the independence and authority of the Supreme Court, but failed and ultimately gave up. From that time onwards, American jurisprudence came to be firmly established in the legal structure that Chief Justice Marshall had constructed on the Constitution's base, as he interpreted it.
"One very important principle set forth by Marshall, and subsequently accepted by all parties to American government down to the Transition Era [that is the projected historical period that led from U.S. Constitutional Democracy to the establishment of the fascist regime], was that the Constitution was a document that meant more than it explicitly said, that it was open to interpretation, and held within itself 'implications.' And by implication that meant the Constitution was a document that could grow and change with changing times and circumstances, that it was indeed designed to grow and change with changing times and circumstances."
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References:
Cox, A., The Court and the Constitution, Boston, MA: Houghton Mifflin, 1987, pp. 58, 59, 63, 66, 75, 342, 360.
Rodell, F., Nine Men: A Political History of the Supreme Court from 1790 to 1955, New York: Random House, 1955.
Supreme Court Bulletin (Windham, NH), "Supreme Court Has No Constitutional Review Authority," Vol. 24, No. 8, June 2003, p. 3.
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"Author's [that is, "Jonathan Westminster"] Note, on the [fictional history] history as it happened in the book, further:
"Author's Note: The "Helms Amendment," offered in Congress a number of times from the early 1980s onwards by Senator Jesse Helms (R"NC) (Cox) and his ideological successors, was finally passed by the 107th Congress in 2001. The language was unchanged from that version offered by Senator Helms in 1991 as S. 77: "Sec. (a) This section may be cited as the 'Voluntary School Prayer Act'. (b) (1) Chapter 81 of title 28, United States Code, is amended by adding at the end thereof the following new section: #1260. Appellate jurisdiction: limitations '(a) Notwithstanding the provisions of sections 1253, 1254, and 1257 of this chapter and in accordance with section 2 of Article III of the Constitution, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordinance, rule, regulation, practice, or any part thereof, or have jurisdiction arising out of any act interpreting, applying, enforcing, or affecting any State statute (and etc.) which relates to voluntary Bible reading, or religious meetings in public schools or public buildings.
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A further note from me (Steven Jonas)
"There is no indication or evidence that Senator Jesse Helms would have supported the specifics of the (fictitious) Supreme Court's decision in 'Anderson v. Board of Education' or any of the actions taken pursuant to it by any branch of the U.S. government or any successor."