Why Marbury v Madison is a BFD!

John Marshall

 Root for the guy on the left! 

Matt Whitaker

These days it's nearly impossible to discuss politics dispassionately. Trumpinistas have bunkered down, determined to defend their champion no matter the cost. It's a waste of breath to engage them; nothing will sway their blind faith. Yet it's no picnic talking to Democrats either, many of whom think Trump's removal is imminent. But here's something all Americans should discuss:

Acting Attorney General Matthew Whitaker thinks Marbury v Madison was a bad decision that should be overturned.

Not too many Americans will get juiced over an 1803 SCOUTS case, but a call to overturn Marbury v. Madison may be the single most dangerous idea to come out of the Trump administration. Marbury is the very foundation of the Supreme Court. It created the concept of judicial review. If it is overturned, the POTUS would be transformed into a veritable dictatorship.

Those who think all contentious matters can be resolved by determining the "original intent" of the Founders believe in a fairy tale. The U.S. Constitution is a remarkable document, but the Founders were not akin to Moses receiving divine laws from a Supreme Being. Pardon the wordplay jump, but the Supreme Court was one of thse areas where the Founders hid their lack of clarity behind unclear language. If you read Article III, you will immediately notice that the details of the Supreme Court's intended role are incredibly vague.

No one quite knew what the SCOTUS was supposed to do. The election of 1800 changed that. Our Founders didn't really believe in mass democracy. The first two presidents, George Washington and John Adams, were really chosen by an internal Congressional caucus. Thomas Jefferson, however, felt that he was shortchanged in 1796 and that he, not Adams, should have been appointed. (The two were friends, but political rivals.) In 1800, Jefferson stood for president against the caucus choice, Adams, and won a bitterly contested election. This caused a constitutional crisis. Could power actually be transferred from one faction to another without a revolution?

The answer was yes, but Adams wanted to make sure he left office with Federalists (his faction) in command of the federal bureaucracy. He made a series of late placements—nicknamed the Midnight Appointments—before he left office. Jefferson couldn't do much about that. Article II gave Adams that right and, pursuant to Article I, the Senate had approved each appointment.

All except that of poor William Marbury. Legend holds that his appointment as a justice of the peace got lost in Adams' desk. That may not have happened, but a JP did need an official commission to assume his duties, and Marbury's had not yet been delivered. Upon taking office, Jefferson refused—through new Secretary of State James Madison, the principal writer of the Constitution—to deliver Marbury's commission. Marbury promptly sued and his case ended up at the Supreme Court, where Marbury v. Madison was argued on February 11, 1803. There were essentially three issues: Should Marbury be appointed as a JP? Did the law give him an avenue to advance his right? Could the Supreme Court appoint him to his position over the president's objection?

Remember—no one knew what power the SCOTUS actually had. Had Chief Justice Marshall not been so canny, the SCOTUS you know would not exist. Marshall earned his fame in one of the most Solomon-like judgments in U.S. history. He ruled that it was very clear that President Adams intended that Marbury should become a JP; his signature and seal were on the appointment document. Marbury had both a moral right to the job and the right to sue.

Marshall then wrote that Marbury had availed himself of his legal recourse. He famously declared that the United States was "a government of laws," and that law was on Marbury's side. This also relieved Marshall of the task of handing Marbury his appointment. To simplify, Marshall took the view that the law gave Marbury his right, not any individual.

That was savvy, but it was nothing compared to what came next. Marshall referenced the Constitution's vague language and ruled that the SCOTUS could not be the body to decide Marbury's case. Today we might say that the Court refused to rule on the matter. But what Marshall really said was that though Marbury was morally and legally deserving of becoming a JP, the Supreme Court lacked authority to appoint him. Marshall recognized there was no way the SCOTUS could force Jefferson's hand, so he kicked the case back to Congress under Article I, not Article III.  

By not ruling, Marshall asserted the Court's very right to judicial review. That is, his decision clarified that the Court's very reason for existence was to determine whether certain actions or lower court rulings were or were not "constitutional." Marshall accused Jefferson of violating the Constitution, but also implied that it was the job of Congress to initiate any legal action against the president; Article I, Section 2 clearly states it is up to the House of Representatives to determine whether the president should be impeached and that under Section 3, the Senate was the sole court with the power to try articles of impeachment.

There was no way that a divided Congress—Federalists and Jeffersonian Democratic-Republicans, two parties that no longer exist—was going to impeach Jefferson and remove him from office over a justice of the peace appointment. William Marbury never became a JP, but he did subsequently have a lucrative career in banking. Today we recall his name as the plaintiff in the case that made—and that's not too strong a word—the Supreme Court. We should rightly think of SCOTUS as having been created in 1803, not 1789.

Footnote, those Democratic supporters who think last week's victory in the House of Representatives will usher in President Trump's impeachment are likely to be as disappointed as William Marbury. Unless there is a smoking gun somewhere—highly imaginable given Trump's propensity for lying—today's Congress is even more divided than that of 1803 and impeachment efforts will nowhere .  Article II, Section 4 reads: "The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." If you think Marbury is complex, try figuring out what this means!

No matter your politics, though, you should pray that Whitaker does not prevail. His is the path for creating a dictatorship.

Rob Weir

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