Reversing Marbury v. Madison

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"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, Aug., 2018)

Marbury v. Madison is perhaps the most famous Supreme Court decision ever handed down. In his opinion on the case, then Chief Justice John Marshall established the principle that the Supreme Court has the power to review decisions of the Executive and Legislative branches of the U.S. Federal government and rule on their "constitutionality." Under the doctrine of this case (and several others that followed it along over the next 20 years or so), if the Supreme Court found that a particular decision/policy of either of the other branches of government was not in accord with the Constitution, that the decision/policy was not to be allowed to stand.

This power is nowhere to be found in the Constitution, and Chief Justice Marshall, using classic, lawyerly, if-then-if-then reasoning made it up out of whole cloth. Much of the political opinion in the Republic supported the decision, and although Jefferson and some of his political allies did object to it, they had other major issues to deal with and the matter was soon dropped. Then, as noted above, there were a series of cases that reinforced the review-power doctrine established under it, which has stood in place ever since.

In the recent Supreme Court hearings on the Mississippi essentially ban-abortions case, since any decision might be based on a reversal of the Roe v. Wade decision which established freedom of choice (with certain limits) in the matter of pregnancy-termination, Justice Alito dealt with the matter of overturning precedent. For quite some time, Justice Alito has been supporter of expanding Federal Executive Branch power without exposing it to review. He has also been a supporter of overturning Supreme Court decision-precedents when they are found to be "egregiously wrong." That was certainly the case in the overturning of Plessy v. Ferguson (which enshrined racial segregation in the Constitution) and "Lochner" (which had prevented state governments from establishing regulations to protect workers on the job). But of course, as has been pointed out, decisions like those expanded the civil protections for certain sectors of the population. A reversal of Roe v. Wade would do quite the opposite.

But going further than that, in the discussion around the Mississippi case I did see in the media several references to some remarks that Justice Alito made in reference to Marbury v. Madison and the fact that the power of judicial review that Chief Justice Marshall established in it is nowhere to be directly found in the Constitution. Although Justice Alito might not have meant it in that way, such remarks would seem to open the door to a reversal of Marbury v. Madison (and its subsequent cases) which did give the Supreme Court that power.

In 1996 I published the first version of a book entitled "The 15% Solution." Under the authorship of one "Jonathan Westminster" (a play on the name of Jack London, who in 1908 had published a book entitled "The Iron Heel," which predicted a future fascist United States) the book was a "future history" purportedly published in 2048, on the 25^th 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 subsequent to it were reversed, opening the way for the establishment of totally untrammeled Executive Branch power. I reproduce for you here major excerpts from chapter 5 of the book, which presents the 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, Cer tiorari to United States Court of Ap peals for the Third Circuit.

"No. 101"11. Argued October 31, 2002Decided May 13, 2003.

"Petitioner, a parent acting on behalf of her minor child, brought a civil ac tion against the Board of Education of the state of New Jersey seek ing to pre vent it from enforcing a law passed dur ing the 2001 ses sion of the State Legis lature 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 Su preme Court. With out arguing the merits, respon dent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, gener ally known as the "Helms Amend ment [1]," the U.S. Su preme Court did not have ju risdiction 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. Fur ther, 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 cas es, 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 contro versies 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 hold ing of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Consti tution 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 "constitu tionality" were based on faulty legal rea soning.

"(c) In the first of these cases, Marbury v. Madison, the Court inval i dated an "Act of Congress" giving the Court jurisdiction to hear origi nal appli cations for writs of mandamus, because in such cases the Con stitu tion limits the Su preme 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 legisla tive branch, through the will of the majority, is the only ap propriate 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 constitu tional safeguards . . . , the Legisla tive and Execu tive 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 "protec tive" function, they would have clearly writ ten it into the Constitu tion. Chief Justice Marshall was reading into the Consti tution words that he wanted to see but were not there.

"(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Su preme 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. Vir ginia Chief Justice Marshall affirmed Justice Story's con clu sion 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 Constitu tion, but found in it other "implied powers," giving the Congress au thority to undertake ac tions 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 deci sions made in the aforementioned 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 conclu sions 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 estab lished by those cases and all their successors down through the years were based on faulty rea soning and a reading of the Consti tution not in ac cord with the Doctrine of Original Intent. Thus, those faulty prece dents 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 Fed eral Execu tive and Legislative branches or any State courts for their "constitu tionality."

"11 F. 11th 111, Affirmed. Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting."

"Author's Commentary" (excerpts from what the "author" of the book 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 Jus tice John Marshall had established the power of the Su preme Court to review actions of the two other branches of the Federal government. As cor rectly 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 unconsti tutional, they were null and void. His reason ing went as follows (Cox):

" 'The Constitution is either a superior paramount law, un change able by ordinary means, or it is on a level with ordinary legisla tive acts, and, like other acts, is alter able when the legis lature shall please to alter it. If the former part of the alterna tive be true, then a legislative act con trary to the Constitution is not law; if the latter part be true, then written constitutions are ab surd at tempts, 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 de fensi ble con clusion 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 men tal branches for their constitu tionality. That authority was extended to the appellate review of state court decisions having constitutional impli cations under the defen sible conclusion that by ratifying the Con stitution in the first place, the states had ceded to the Unit ed States that appellate jurisdiction, which is clearly con tained 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 Jeffer sonians did make several modest attempts to undermine the inde pendence and authority of the Supreme Court, but failed and ultimate ly 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 subsequent ly accepted by all parties to American government down to the Transi tion 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 was open to interpretation, and held within itself 'im plications.' And by implication that meant the Constitution was a docu ment that could grow and change with changing times and circumstances, that it was indeed designed to grow and change with changing times and circumstances."

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:

"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 ideologi cal succes sors, 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) Chap ter 81 of title 28, Unit ed States Code, is amended by adding at the end thereof the following new section: #1260. Appellate jurisdiction: limitations '(a) Notwith stand ing the provisions of sec tions 1253, 1254, and 1257 of this chapter and in accor dance 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, ordi nance, rule, regulation, practice, or any part thereof, or arising out of any act inter preting, apply ing, enforcing, or effecting any State statute (and etc.) which relates to voluntary prayer, Bible read ing, or religious meetings in public schools or public build ings . . .'"

"There is no indication or evidence that Senator Jesse Helms would have support ed the specifics of the 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 succes sor."

(Article changed on Dec 26, 2021 at 11:40 AM EST)