Hamilton — Marbury v. Madison: A ruling too far?
July 15, 2015
No matter how you feel about the recent decisions by the U.S. Supreme Court (SCOTUS), something seems out of balance. In 1787, our nation's Founders felt a Congress elected by the people should be the foremost branch of our national government. That is why the very first article of the U.S. Constitution, Article I, created the Legislative Branch.
The Founders knew we would need a chief executive to manage the national government and so Article II created the Executive Branch. The Founders thought the Judicial Branch would be the least of the three branches of government, so the Judicial Branch was created as Article III. But then, in 1803, along came Marbury vs. Madison, 5 U.S. 137.
William Marbury was a wannabe Justice of the Peace (JP) who had not received his commission from the previous administration. Under the provisions of the Judicial Act of 1789, Chief Justice John Marshall could have ordered Secretary of State James Madison to give Marbury his commission. But, rather than get into a shoving contest with the Executive Branch, Marshall held that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional because it purported to extend the Court's "original jurisdiction" beyond that which Article III established. So, Marbury did not get his commission.
On the surface, Marshall's ruling appeared to be reining in the powers of the Federal Judiciary; however, the practical effect of his ruling was both otherwise and twofold: 1. The ruling avoided a clash with the Executive Branch and 2. The ruling told Congress that the SCOTUS would decide which laws or parts of laws passed by Congress were constitutional or not. In other words, nine, political-appointee, non-elected judges would be the ultimate arbiters of what is law and what is not.
Based on your point-of-view, the SCOTUS has made good decisions and bad decisions. Arguably, the worst was Dred Scott v. Sandford, 60 U.S. 393 (1857). The SCOTUS held that African Americans, either free or enslaved, could not be American citizens. Fortunately, in 1868, the 14th Amendment overturned the Dred Scott decision by granting citizenship to all those born in the United States, regardless of color. That it took a Constitutional Amendment to correct the Dred Scott decision suggests that Marbury v. Madison elevated the SCOTUS to a position where nine, non-elected judges have more power than the Legislative Branch and the Executive Branch combined.
For example, we have seen numerous cases where the elected representatives of the people in the states have passed laws that have been overturned by non-elected, federal judges and their rulings upheld by the non-elected judges on the SCOTUS. We have seen times when the people of the states have amended their state constitutions by overwhelming majorities, only to have federal judges set aside their amendments and then be upheld by the non-elected justices on the SCOTUS.
But can the power of the federal judiciary be curtailed? Yes, Article V provides for a Convention of the States. If 34 or more States call for a Convention of the States, the delegates (commissioners) could fix (or make worse) all sorts of things. We report. You decide.
Nationally syndicated columnist, William Hamilton, is a laureate of the Oklahoma Journalism Hall of Fame, the Colorado Aviation Hall of Fame, the Oklahoma University Army ROTC Wall of Fame, and is a recipient of the University of Nebraska 2015 Alumni Achievement Award. He was educated at the University of Oklahoma, the George Washington University, the U.S Naval War College, the University of Nebraska, and Harvard University.