The Supreme Court's Power for Constitutional Review is Unconstitutional (Ho, ho, ho)
The Supreme Court's decision in "Trump v. United States," using its "review for Constitutionality" power, precisely enables the establishment, through the manipulation of the law, of a future fascist-in-practice dictatorship (which of course would destroy Constitutional government in the United States). In its light, I am republishing here the [fictional] "decision" by the [fictional] "Chief Justice Steps" from my book "The 15% Solution," that overturned the 1803 Supreme Court decision in Marbury v. Madison, written by Chief Justice John Marshall. In this fictional decision the Court removed from itself the power of Constitutional review which Marbury v. Madison had established. This column is an excerpt from Chapter 5 of my book, presenting that fictional decision. (That chapter was republished in full in this space on April 29, 2024.)
(By the way, the "Holding" in Trump v. U.S., which is the formal, brief summary of the primary finding of the Supreme Court's decision, is absolutely terrifying to anyone who believes in the Rule of Law: "The nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all his official acts; there is no immunity for unofficial acts." OMG [even though I don't believe that such a being exists, anywhere]. And a further "by the way." Isn't "Trump versus the United States [of America]" just a perfect name for this decision?)
As I tell the story in my book (which was first published in 1996), according to a then-future Republican Supreme Court operating under a formerly Republican, now Fascist, President/Dictator, that personage simply wants to get the Supreme Court, any Supreme Court, out of his way. In Chapter 5 of my book "The 15% Solution," in a decision entitled "Anderson v. Board of Education," (republished in this serialization on April 29, 2024,) I had a fictional Chief Justice "Steps" (Scalia, get it?) write the opinion for a majority Supreme Court decision overturning Marbury v. Madison (1803). It was in that case, plus several subsequent ones, which in my view (and certainly that of numerous others over time) out of whole cloth, established the Court's Constitutional review power. For, as it happens, that power nowhere appears explicitly in the Constitution.
Summary of the Decision (Supreme Court Bulletin)
"Supreme Court Has No Constitutional Review Authority"
Anderson v. Board of Education, Ce tiorari 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 pre vent 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. Without arguing the merits, respondent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, generally known as the "Helms Amendment [1]," the U.S. Supreme Court did not have jurisdiction in this case. [That fictional law, named after Sen. Jesse Helms of North Carolina, who promoted such legislation, upheld the Constitutionality of prayer in public schools.}
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 affecting 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 becomes 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 review" 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 opinion 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 written 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 aforementioned cases, careful review of the language of the Constitution 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.
Author's Commentary (that is the fictional future author of "The 15% Solution," writing from the perspective of 2048, in a re-established United States of America)
Anderson v. United States was the most significant decision handed down by the Supreme Court in the old United States since Marbury v. Madison, referred 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 nowhere clearly granted to it by the Constitution itself. Nevertheless, Marshall 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 governmental 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 United 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, was that the Constitution was a document that meant more than it explicitly said, that 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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End of the excerpt, here. Of course in "Trump v. United States" this Republican Supreme Court went full force the other way, interpreting the Constitution to, as noted, enable the subsequent establishment of a dictatorship --- whichever crimes (and of course the Court would decide the "criminality" question) a President might commit in his/her "official capacity," are not "crimes." See ya at the Reichstag, on "Enabling Act" day.