The Making of a Judicial Giant

It is emphatically the province and duty of the judicial department to say what the law is…If two laws conflict with each other, the courts must decide on the operation of each….This is of the very essence of judicial duty.
                Chief Justice John Marshall, Marbury v. Madison, 1803

From time to time, the Supreme Court has been the subject of one of my articles.  I love the Supreme Court and am endlessly fascinated with the issues they discuss.  Within the story of the Supreme Court, I’m most intrigued with the career of John Marshall.  He was the third chief justice of the Court and widely considered the most important judicial figure in the history of the United States.  He is responsible for the creation of the modern court and its powers.  However, like most things dealing with the law, one’s career is often centered on a single case.  For John Marshall, that case was Marbury v. Madison in 1803.

In the waning days of the Adams administration, having been defeated by the Democratic-Republican Thomas Jefferson, the Federalist president hurriedly worked to fill a slew of vacant federal judicial positions.  President Adams had been negligent to do so earlier but worked overnight to complete them before leaving the White House for good.  He stacked his pile of “midnight judges” appointees on his desk and assumed that the incoming president of a different party would finish the process.  Upon entering the White House, President Jefferson and his Secretary of State, James Madison, saw the appointees and pondered.  Are they required to fulfill these Federalist positions?  They answered no and likely threw them away. 

One of the judges in question, William Marbury, wanted his post – justice of the peace of Washington, D.C.  At the time, the capital was a sleepy agricultural community with little for a justice of the peace to worry about.  He sued the government and Secretary Madison for his job on the basis of the Judiciary Act of 1789.  In particular, he called for a writ of mandamus – an order for the government to do its job.  For Chief Justice Marshall, the strident Federalist who wants and needs a stronger government for the good of the Court, his sympathies are towards Marbury but he has a problem.  With the little respect or prestige of the Court, if he ruled in favor of Marbury and ordered the president to appoint him, President Jefferson would simply ignore him.  However, in reviewing the law, he sees a chance to gain some much needed credibility for the Supreme Court. 

As John Marshall laid out his ruling, he began by saying that Marbury was appropriately appointed and should be given his position.  Nothing in the Constitution limits when a president can make judicial appointments and therefore, the post should go to Marbury.  As the audience begins to think that the Federalist judge has ruled in favor of the Federalist plaintiff, Marshall shocks by attacking the Judiciary Act of 1789.  In short, Marshall ruled that the portion of the law used by the plaintiff was unconstitutional and therefore, Marbury’s case and basis was invalid and his petition denied.  Jefferson was now in a bind.  If he did not accept Marshall’s opinion, he would be compelled to give Marbury his position, with many other midnight judges likely to follow the same path.  By accepting the Court’s opinion, he bestows upon the Court the ability to review the actions of government and determine its constitutionality.  In short, John Marshall took one step back to take two steps forward at a later date.  It worked and the Court was given an important power over the other branches – judicial review.   

The Supreme Court has the authority to review not only the actions of the government but those of the lower courts, both federal and state.  Over the course of his career, Marshall’s decisions would establish a strong federal government in the areas of interstate commerce, international contracts and on the question of federal law superseding state law.  Given the impact that he had, it is surprising that he is not more well-known.  Hopefully, I’ve changed that to some degree with this little story.  His life and his work is worthy of attention and study.    

This Story Shall the Good Man Teach His Son

I have this morning witnessed one of the most interesting scenes a free people can ever witness.  The changes of administration, which in every government and in every age have most generally been epochs of confusion, villainy and bloodshed, in this our happy country take place without any species of distraction, or disorder. 

            A Philadelphia woman in a letter to her sister on the occasion of Thomas

            Jefferson’s inauguration, 1801

It was March 4, 1801 and Thomas Jefferson, the tall and distinguished gentleman from Virginia left his residency of the last few months, a boarding house in Washington, D.C., to make his way to the Senate chamber.  The election he had only recently survived was a tumultuous and dirty campaign; one that would make modern-day campaigns seem quaint and genteel in comparison.  Jefferson’s followers had called his opponent, President John Adams, an atheist and suggested that he sought a re-uniting with England.  The Federalists were worse.  They called the Virginia politician “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father…”  On top of it all, the actual election was only recently resolved the month before after a contentious fight between Jefferson and Aaron Burr.  Yet, despite the hatred and the vitriolic nature of the debate, a country came together to honor a new president.  Not just a new president, but a new political philosophy – different from the two previous Federalist presidents. 

In accordance with congressional law, which states that a general election will be held every four years on the first Tuesday after the first Monday in November, Americans will gather to vote for president.  The amazing part of the whole process is that on November 7 (hopefully), we will usher in either a new term or a new presidency.  Despite our convictions, our beliefs, we will accept the will of the people, as expressed in the vote cast next Tuesday.  For the last four years, President Obama has been my president and I have taken umbrage to those who disrespect the man.  No one, and that includes people like me and others who have criticized him over the years, has any idea what it is like to be president or the pressures that fall on that person.  Still, I hope that in a week’s time, we will have a new president.  I trust Mr. Romney’s vision for the future more than the president’s.  However, if the president is re-elected, my responsibility as an American is to accept him and respect him.   

There are those around the country who allow their viewpoints and paradigm to cloud their responsibility.  However, for the most part, I believe people do respect the office of the presidency and in that regard, we are unique.  It is not to say that other nations do not respect their leaders but they are seen in many places as more interchangeable.  Still, it is strange.  As a whole, we are a people who are known for its respect of its political leaders, its law enforcement agencies and as kids, we are told early and often to respect our elders.  Yet, we are a nation of individualists, who tend to be anti-authoritarian.  I’m fond of the scene in The Great Escape when the German commandant asks Steve McQueen’s character, “Are all American pilots so ill-mannered?”  McQueen responds, “Yep, about 99% of us.”  That is the United States but we still see our leaders and our president as different.  We don’t put him on a pedestal, or we shouldn’t…the president is not better than us but he can be the best of us.   

So, I anxiously await Tuesday.  I’m pulling with much enthusiasm for Governor Romney and think he has a good chance of winning.  His economic approach is more sound and more friendly for people like us trying to pull ourselves out of our economic blight.  His understanding of the U.S. position and role in the world is also more historically sound and ultimately, will make my country and the world safer.  And no matter what happens, my politically contradictory spouse and I will still be able to deal with one another (what to do with her yard sign though...hmm).  So will the United States.  It has been that way since the first men ascended to the position of president.

Revisiting the First Amendment

The First Amendment is often inconvenient.  But that is beside the point.  Inconvenience does not absolve the government of its obligation to tolerate speech.
            Supreme Court Justice Anthony Kennedy

Have you ever read the Bill of Rights?  These are the first ten amendments to the Constitution that were intended to mollify the Anti-Federalists who opposed a government with a stronger federal authority.  It is an amazing experience to read what our Founding Fathers considered important and a necessity to include in our founding document.  Almost as amazing as what is said is what is not enumerated within the Constitution.  I’ve written on the topic of free speech in the past but never have the times called for an explanation of what was not said in the First Amendment. 

Recently, in the National Review, editorialist Jim Geraghty reminded readers of the first time some folks around the world threw their hands up in outrage over “blasphemous” language in the form of Salman Rushdie’s The Satanic Verses.  He posted within his article a video of a Saturday Night Live skit where Phil Hartman and Glenn Close play Barnes and Noble employees fighting off an angry mob with machine guns and evasive maneuvers to continue selling books.  A “dying” Hartman declared that perhaps they should only sale Muslim literature or have “Ayatollah birthday sales.”  Among the laughs and the wincing, it occurs to the viewer that there was a time where we answered this kind of outrage with a reaffirmation of our belief in freedom of speech or expression. 

However, the intended limitation to freedom of speech is not limited to a handful of extremists.  Some Americans have wondered about the protection of speech when it comes to a group of horrid people, members of a “church” out of Topeka, Kansas who protest the funerals of soldiers with the most despicable slogans aimed at the military and homosexuals.  In 1969, the Supreme Court ruled that the racist rant of a KKK leader was protected because it was not designed to call for immediate violence.  In 1995, the Court ruled that the South Boston Allied War Veterans Council were not required to allow the Irish American Gay Group of Boston to march with them in a private parade because doing so would violated the veterans’ freedom of speech by forcing them to espouse something with which they disagreed.  In 1989, the Court ruled that a Texan named Gregory Johnson was within his constitutional rights to burn the American flag.  Two decades earlier, the Court protected students protesting the Viet Nam War with a black arm band in school. 

Throughout our history, we’ve struggled with the consequences of our national convictions and we’ve struggled to live up to the best intentions of our forefathers.  We’ve been tasked with, as Americans, to accept the notion that freedom of speech must apply to those things we don’t like more than anything else.  Indeed, we have no such freedom if it only applies to that speech we find acceptable.  When we stand against someone like the Phelps family in Topeka, we worry about the soldiers, their families and gay men and women who serve as a foil for twisted minds and blackened hearts.  Therefore, we say to ourselves, there must be something that we can do to prevent such speech.  We see violence throughout the world over movies or cartoons and we worry about the American families who have lost loved ones or the Muslim families who huddle in the dark, hoping for the light of tolerance and rationality – for themselves and the ignorance of others who seek to besmirch them.

Roman senator and historian Tacitus said, “The more corrupt the state, the more it legislates.”  From the past, comes a warning.  We, as a nation, must have the security in our own beliefs and our own ideas to not only tolerate the repugnant but to explain our ideas in the spirit it was intended and not shrink from them.  When some might say, “this should not be allowed,” we must make the case that a freedom for our friends only is no freedom at all.  The more conditions we place on such an inalienable right, the more the government legislates and decides for us what is and is not acceptable.  We will continue to surrender our rights until one day, no one may speak and the tyranny that Americans have feared since the days of Thomas Jefferson and Alexander Hamilton will ultimately destroy us.