Rob: Yet, that's what happened with Citizens United, isn't it?
Thom: That's exactly right. So from 1789 when we became a country, when the constitution was ratified, until 1803, the Supreme Court never did anything other than be the final appeals court. In 1803, there was a case where -- I can give you the details of the case if you want, but the bottom line is basically, it's called Marbury Vs Madison, and Madison was James Madison. He was the Secretary of State in the Thomas Jefferson administration and Marbury was a guy that James Madison was suppose to make a judge and didn't and he sued. The court, John Marshal was the Chief Justice who was Thomas Jefferson probably number one political enemy, and the court ruled that Jefferson won, Jefferson and Madison won the case and they won the case because the law under which Marbury was saying that he should be entitled to be a judge, was unconstitutional.
Now Jefferson found himself in a terrible bind because on the one hand he won the case which is what he wanted; on the other hand, he freaked out. He wrote, and this I can do from memory, he said, "If this decision is allowed to stand, then indeed has the constitution become a [inaudible]," which is Latin for a suicide pact. "For with this constitution one branch of government and of that, the one which is unelected and unresponsive to the people has taken upon itself the ability to declare what is and is not the law of the land." And so he said, "If this allowed to stand, the constitution has become a thing of wax in the hand of the judiciary and the republic is doomed." That was in 1803, Thomas Jefferson said that.
The violence the ferociousness of Thomas Jefferson's response to that Marbury Vs. Madison case was so intense that for the next 25 years the Chief Justice of the Supreme Court...
Rob: Marshall?
Thom: Marshall, thank you. That Judge Marshall was on the Supreme Court, for the remaining 25 years he never again decided a case based on constitutionality. It wasn't until after he died.
So basically, for the first 50 years of this country's existence, the Supreme Court never decided or very rarely decided constitutional issues. Now the Supreme Court does nothing but decide constitutional issues and as I said, this is a power that was not given to the court by the constitution. And arguably, Congress has the right to take this power away from the Supreme Court. Here's an of example of when it was tried.
In 1935, Franklin Roosevelt passed a series of laws including a minimum wage and child labor laws as part of the collection of laws to be called a new deal and the [inaudible 23:26] the right to unionize and the Supreme Court struck them down; said these are unconstitutional because the Supreme Court is very conservative. Most of these guys were over 70, most of them had been put in the court back in the 1910s when they had also struck down child labor laws. There was one in 1914, there was 1917 that they struck down. That one said that children over the age of 7 couldn't and they established the age at which children could work at as 12 including in prostitution.
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