William Marbury was pumped. President John Adams had informed him that he had been nominated to a judgeship, that the then-Secretary of State, John Marshall, had sealed his commission, and that the commission was on its way to his house that very day. In his new role as judge, Marbury reflected, he as a Federalist would be part of the machinery to stop the Republican Thomas Jefferson from implementing his nefarious agenda. Marbury salivated at the prospect.

Unfortunately for Mr. Marbury, his commission was not actually delivered until the next day, after Thomas Jefferson had been sworn into office as our third president. Still, Marbury thought, surely he soon would be taking the oath of office. He had been nominated by the president, and his commission had been sealed by the Secretary of State. As soon as he received delivery of the commission, he would be off to take his seat on the bench.

Not so fast, said Mr. Jefferson. Your commission was issued by the previous president, and he’s not here anymore. You’re dealing with me now, said Mr. Jefferson, and your commission will not be delivered. I don’t care who signed it, and I don’t care about the formalities of actual delivery. You’re out of a job, Buster, said the man from Monticello.

Well, Marbury didn’t take kindly to President Jefferson’s legal rectitude, and took his case directly to the Supreme Court, which the law specifically entitled him to do. Regrettably for Mr. Marbury, he became the first victim in our nation’s history of judicial activism. But even more regrettably, not the last.

The day the Supreme Court veered off course

Constitutionally, we veered off course on February 24, 1803, the day on which the relatively new Chief Justice Marshall issued his misbegotten opinion. It is a date which ought to live in judicial infamy.

I spoke in an earlier column of the disaster that results when a pilot sets off on a long flight but is off by just one degree in plotting his course. If he never makes a midcourse correction, he not only will not reach his destination, he will take himself, his plane, and his valuable cargo to the bottom of the sea.

The Supreme Court has, without warrant or justification, jumped into the cockpit of our airship of state, taken the controls, and set a flight path that has taken us dangerously off course. The longer we maintain this course without correction, the further we get from our goal as a society, and the more we endanger our own future and the future we want to leave for those who come after us.

Where did we go wrong? Where did the Supreme Court first take us off course? The Court hijacked the constitutional cockpit in 1803 in the Marbury v. Madison case, and has been sitting there piloting us off course ever since.

In Marbury, the Court arrogated to itself the presumed authority to declare a law of Congress unconstitutional and hence invalid. It invented out of thin air the concept of “judicial review,” in which the Court presumes the power to annul legislative or executive acts which the judges decide are unconstitutional.

Although the Court did not exercise this stolen prerogative again for another 50 years, the precedent had been established that the Supreme Court was not in fact a co-equal branch of government but the supreme branch of government. It assumed authority not just in its own sphere but over domains in which it has no legitimate authority to intrude.

Marbury: a naked assertion of judicial power

Without getting into the weeds, here is what Marbury was about. It was a tussle over presidential appointments to the judiciary. John Adams and Thomas Jefferson were bitter political opponents, and when Jefferson defeated Adams in the presidential election of 1800, Adams tried to pack the federal judiciary before Jefferson assumed office. He did this on his last day in office by naming 42 justices of the peace and 16 new circuit justices in the District of Columbia. He did so under the auspices of the Judiciary Act and the Organic Act, both passed by Congress early in 1801 and signed into law by Adams. (Jefferson, as was the custom in those days, was not sworn in until March of 1801.)

The problem in Adams’ case was that, as we have seen, not all the commissions signed by him were delivered before his presidential term expired. Jefferson, in an anti-Federalist snit, refused to honor those late-arriving commissions when he took office. This understandably irked Marbury. Marbury took his case directly to the Supreme Court under the Judiciary Act of 1789 which gave the Supreme Court “original jurisdiction” to issue “writs of mandamus” in cases like Marbury’s. A writ in Marbury’s case would have compelled Jefferson to honor his commission. (The “Madison” in Marbury v. Madison was Jefferson’s Secretary of State, James Madison, who would have had the responsibility to deliver Marbury’s commission to him.)

Interestingly enough, the Marshall court actually got the essential elements of the ruling right. It declared that since the Constitution does not, in fact, give the Court original jurisdiction in cases like this, Congress couldn’t. Congress could not give to the Court a power not given to it by the Constitution in Article III. The Constitution, as the supreme law of the land, took precedence over any act of Congress if there were a conflict between the two.

And so the Court ruled that the Constitution did not authorize the Court to issue writs in cases like this, including the one Marbury believed he was obligated to receive. The Court told Marbury he was entitled to the commission, and it should have been delivered to him, but since he had started his case in the Supreme Court rather than in a lower court, he wasn’t going to get it. He’d have to start all over in a court of appeals.

So far, so good. Marshall was as much a political opponent of Jefferson’s as Adams was. Marshall was Adams’ Secretary of State and had sealed the commissions Jefferson refused to honor. Now Marshall should have recused himself since he was a party in the original dispute. Even Elana Kagan, for instance, after she ascended to the Court, recused herself at least 51 times in cases she had worked on as President Obama’s Solicitor General.

But Marshall saw this as an opportunity to punch a hole in Jefferson’s political balloon by nakedly asserting the power of the judiciary over the executive and indeed over the Constitution itself. In a devil’s bargain, by appearing to accept constitutional limitations on the Court’s authority, he actually expanded it beyond measure. He appropriated to the Court a far larger power, the power of judicial review.

By the time Marbury’s case reached the Court, the Judiciary Act of 1801 had been repealed, the term Marbury would have served was already half over, and most Federalists (aligned with John Adams) and Republicans (aligned with Thomas Jefferson) alike thought the case was moot. But Marshall saw the opportunity to stick his thumb in Jefferson’s eye, and seized it by asserting the Supreme Court’s paramount role in constitutional jurisprudence.

The essential problem with Marbury is that Chief Justice John Marshall, with no constitutional warrant whatsoever, and to settle a personal score with Jefferson, simply declared that the Court was the ultimate arbiter in all things constitutional. Wrote Marshall, “It is emphatically the duty of the Judicial Department to say what the law is.” Which being interpreted means, it’s emphatically not your duty, Mr. Jefferson.

The backstory here is that Jefferson had written “The Kentucky Resolutions” in 1798, which assert that the states, since they created the federal government and thus are its masters and not its servants, are free to declare null and void any act of Congress they deem to be unconstitutional. No, said Justice Marshall imperiously, we enlightened judicial oligarchs are the only ones who get to do that.

In other words, you members of Congress have no right to say what your own laws mean. We will tell you what they mean, and don’t think we won’t. Said Judge Iredell in one of John Fries’ earlier trials, “To (judges) alone it belongs to explain the law and the Constitution.” If we decide a law means what we say it means, it doesn’t matter in the least what Congress actually meant when they passed it.

Marbury is the fount of judicial tyranny

Thus we can trace almost all of our contemporary problems with an overreaching Court drunk on its own power back to John Marshall. If we complain today, in the 21st century, about the unconscionable and unconstitutional concentration of power in the Supreme Court, we have John Marshall to thank.

The blame for the Lawrence v. Texas decision in 2003, which forced every state to accept the normalization of sodomy, and the Obergefell v. Hodges ruling of 2015, which imposed sodomy-based marriage on the country against the manifest will of the people, can be laid at the feet of Justice Marshall. That’s what made the Marbury v. Madison opinion so damaging.

Marbury singlehandedly wrecked the Constitution’s delicate balance of powers and made the judiciary the supreme branch of government, virtually unchallengeable in its tyrannical ambitions. While its supporters say Marbury secured the independence of the judiciary, it did nothing of the sort. It secured instead the supremacy of the judiciary.

Marshall was the author of the power-grabbing opinion in Marbury v. Madison. Its purpose was political, not judicial. Its purpose was to blunt the political power of Jefferson’s Republican Party by eviscerating the constitutional power of the executive branch. There was nothing noble or just about it. It was intended to elevate the Supreme Court in power, prestige and control for purely political purposes, and it did so at the expense of the Constitution and its checks and balances. And we have been paying the price for 217 years.

The author may be contacted at bfischer@afa.net

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