Marbury vs Madison help?

Question

the u.s is one of the few countries in which the highest court of the land has power to declare a law unconstitutional. Do you believe that such power is of benefit to a country?

Answer 1

~Obviously, you need to do a little more research.

John Marshall was NOT the first US justice to declare a law unconstitutional, although Marbury is the first Supreme Court case to do it. In fact the Court refers to an American precedent in the Marbury decision itself. By the time US jurisprudence rolled around, the English courts had so frequently employed the practice that American judges took it for granted that they had the power to do so.

If you know anything of the events surrounding the case, then you know that Marshall needed an out so he could announce the proper rule of law and take a shot at his cousin, President Thomas Jefferson, while at the same time he had to duck making a ruling that he knew would be ignored since he was well aware that Jefferson would never comply with the mandamus that Marshall was so clearly, under any reading of the law, required to grant. Marshall inserted a non-existent issue into the case (the constitutionality of the Judiciary Act of 1801- jurisdiction of the Court to determine the case was clear under Article III, section 2; it would not have been much of a stretch to assume jurisdiction under Article III, section 3, but nobody really wanted to accuse Jefferson of treason - yet), then made the bogus issue the controlling factor in the decision, thereby letting the Court declare that mandamus ought to issue but then declaring the Congress had no right to extend Court jurisdiction beyond that stated expressly in Article III, thus denying himself the authority to do that which he knew he must do.

On the other hand, Marbury and his cronies could have brought the case in the Circuit Court where the Judiciary Act and/or the authority of Congress vis-a-vis the Court would never have arisen. Had the disgruntled Adams appointees actually wanted the jobs, they could have filed in Circuit Court after Marshall ducked the case. Instead, they essentially disappear from history, their part in the drama simply having been to bring the case and create the crisis. Clearly the Founding Fathers were as capable of dirty tricks and political games as was Richard Nixon. History has ignored and forgiven Marshall, Adams and Jefferson for their roles in almost ending the grand experiment of constitution government.

Cooler heads prevailed after the decision was handed down. There is no constitutional authority that allows the Court to be the sole interpreter of the constitution and there is sufficient constitutional latitude to grant like power to Congress and the executive. After Marbury, and the constitutional crisis it resolved, the other two branches opted to let that sleeping dog lie. The games between John Adams and the Federalists with the midnight appointments, and the Jeffersonian Democratic-Republicans in refusing to seat them almost resulted in a constitutional crisis which could have toppled the government before its 15th birthday. Marshall's intellectual dishonesty (unnecessarily deciding the case based on the Judiciary Act) and his lack of ethics (he, after all, was the Secretary of State under Adams who had failed to deliver the commissions making him not only a potential witness in the litigation but perhaps the KEY witness: an ethical judge would have recused himself from the case and under today's standards could be removed from the bench if not disbarred for like conduct) resulted in the biggest power grab in US political history . After the decision was handed down, the entire episode was allowed to die a quiet death. One wonders what deals were made to bring about such a happenstance.

Point to ponder: was Marshall wise, a coward, or a devious, dishonest, unethical, power grubbing megalomaniac? All of the above? Good choice.

Not to worry. The next time the Court declared an act of congress to be unconstitutional wouldn't come for some 80 years. It is an option traditionally seldom used and only as a last resort. The Court which did it more than any other, believe it or not, was the Rehnquist Court. Of course, that is hardly surprising. William Rehnquist was the most ethically and intellectually deprived justice to ever squat the bench, but that's another issue. (Read what Alan Dershowitz had to say about the man in his 'eulogy' if you're interested in that one. Better still, read the man's biography and any of his decisions - not for the final ruling but for the distortion of facts, law, logic and precedent.)

As to your question, what alternative do you suggest? By the same token, if the neo-cons win the next election and get to appoint the successors to Justices Ginsburg and Stephens, and our civil rights and liberties regress to the days of Plessy v Fergussen, I may begin to believe it's time for Congress to exercise its authority under Article I, section 8, clause 18.

Answer 2

Yes, it provides a further check on the power of the legislative and executive branches. Without that power, Congress and the President, controlled by party politics, could overrun the country with awful laws. In theory at least, the unelected members of the judiciary provide a different perspective on the laws than those elected officials who have to posture for public opinion every election cycle.

That doesn't mean the Supreme Court is always right; it just provides another check and another perspective.