“We’re in a Constitutional Crisis I tell you! A Constitutional Crisis!”— we’re hearing from Democrats and Liberal Pundits as they turn into Chicken Little. And who represents that acorn constantly falling on their heads? You guessed it, President Trump. And while Democrats and the left run around like maniacs desperately searching for any accusation against Trump and his administration that might stick, Trump is just throwing more acorns on their heads. That’s when I began hearing about Marbury v. Madison. A court case from way back in 1803. I thought to myself, I remember that case. What does that have to do with what’s going on with Trump? One can only speculate but I have to say, Marbury v. Madison was a very interesting case. In fact, it wasn’t just any court case, it became an historic event which transformed the U.S. Supreme Court from mundane to the extremely powerful third branch of government it is today.
In order to understand it’s importance, a history lesson is required. Again, seeing as volumes of books on this topic are written due to all the political connections involved, I’ll do my best to be brief while retaining said connections. First, we have to start with President John Adams and soon to be president Thomas Jefferson. Sounds like another long article, doesn’t it? Well, most likely but as with all my long articles, it will be interesting.
A History Lesson
We’ll begin with President John Adams. Not a very popular President by virtue of the fact that he was a one term wonder. But it wasn’t just him alone, it was the Federalist Party. They were all in for total control for the government and at the time, they had it. They controlled the House, the Senate and had control of the Judiciary seeing as all Federal Judges were Federalists. Keep in mind, being the 2nd President of a brand new United States had it’s advantages.
He narrowly won the election against Thomas Jefferson and had a strong feeling he wasn’t going to be as fortunate against Jefferson the second time. Not only that, the Federalist Party had an equally strong feeling they were about to lose the House and Senate as well. Adam’s completely unconstitutional Sedition Act upheld by Federalist appointed Judges basically curtailing all criticism of Adams and his gang to the point of jailing ten or so people including politicians who didn’t quite agree with him pretty much sealed his political fate. Preparations had to be made. (Sound familiar?) Especially in regard to the Judiciary which had now become a stronghold against Jefferson. In his final days in office— Adams goes on a frenzy making one judicial appointment after another due to recently passed completely partisan legislation increasing the size of federal courts. Adams stuffed them full of anti-Jeffersonians. He also installs John Marshall (Adam’s Secretary of State at the time) as Chief Justice of the Supreme Court to deny Jefferson his pick. As these are lifetime appointments, Adams knew he’d have friends who could not be replaced outside of impeachment. John Marshall plays a key role in what happens next.
On the final day of Adam’s presidency, he signs the additional judicial commissions and hands them to Marshall (then Secretary of State) to place the seal of the U.S. and delivers them to the recipients although time is running out so he gives half to his brother James to deliver. James fails this task leaving seventeen undelivered commissions in the executive offices of now President Thomas Jefferson. Does Jefferson have them delivered? Nope. He instructs James Madison (his new Secretary of State) to leave them lay. Ten Months later, William Marbury (one of the recipients) asks Chief Justice Marshall to force James Madison to deliver his commission. Marshall orders Madison to show just cause for apparent willful failure to do so. No answer, Madison quietly ignores the order. Here’s where it gets interesting. Marbury then sues Madison for his commission taking his case to the Supreme Court.
When word about this spreads through Congress now completely controlled by Jeffersonians who by now became aware of the shenanigans Adams pulled, they weren’t going to have any of it. They pass a law that in essence, closes down the Supreme Court for one full term by statute. That alone, to me is remarkable. Then again, there was nothing in the Constitution that said they couldn’t. Nevertheless, it was a damn bold move by Congress to the point John Marshall pondered whether or not impeachment for him would be next. To this day, when you have a Congress controlled by one political party, deserved or not, shit like this can happen although the side doing this have a much greater risk of losing their re-elections unless voters are completely on board. In any event, during this fourteen month forced recess, there were rumors of threats the Jeffersonians (aka— the Democratic-Republican Party) were considering dismantling the entire judiciary built by Adams. (Again, sound familiar?) John Marshall stayed home during this time figuring out his next move regarding Marbury v Madison.
This conundrum facing John Marshall was one of those damned if he does, damned if he doesn’t kind of situations. If Marshall backs down, the Supreme Court would lose all credibility. If he orders Jefferson to command Madison to deliver Marbury’s commission, Jefferson would simply ignore it turning the Supreme Court into a laughing stock because they had no way of enforcing it.
On a side note— Doing my best not to reveal the conclusion of this case too early, I can’t help but remember a similar situation involving John Marshall thirty-one years later with President Andrew Jackson. The court ruled that the state of Georgia could not impose its laws on Cherokee native land, which Georgia wanted to control. President Jackson, who sided with Georgia responded with— “The chief justice has made his ruling. Now let him enforce it,” which resulted in The Trail of Tears.
There had to be a better way to avoid the “damned” solutions.
As expected, the first case on Chief Justice John Marshall’s docket once the Supreme Court was back in business was Marbury v Madison. The decision was in and surprised everyone involved. His choices were narrow. He knew it was illegal to withhold Marbury’s commission. He knew he could admonish Jefferson and Madison for withholding said commission. He knew he could order Madison to deliver Marbury’s commission but he also knew Marbury would still never receive it. Didn’t look good for John Marshal until sometime during the fourteen month recess, Marshall had a light-bulb moment. A moment that could change everything and how the U.S. Supreme Court (if all his cards were successfully placed) would be perceived from that day forward. The key laid within the U.S. Constitution itself.
Up until then, most if not all Constitutions were seen as political documents only. Marshall argued that the U.S. Constitution was in fact law and by extension his Supreme Court had the authority to treat it as such even though such authority was nowhere in the Constitution. (I’m going to cut to the chase with what happens next.) Under that premise, while researching the document for anything that could pertain to the case, he discovered that a relevant provision in the Judiciary Act of 1789 was unconstitutional. Section 13 of the act, he argued, was inconsistent with Article III, Section 2 of the Constitution. Therefore, it became all about jurisdiction meaning Marbury and his case were in the wrong court. It wasn’t the fact that Madison withholding his commission was indeed illegal and he should have received his commission. It was the Supreme Court had no jurisdiction over his case. He accomplishes this by striking the law passed by an act of Congress through Judicial Review which at the time didn’t exist.
At first, Jefferson’s administration took the win by technicality— that is until they read the entire decision and saw the price they were about to pay for that win. Up until this decision, the Supreme Court had never played a role in determining the constitutionality of laws passed by Congress. Marshall’s decision was precedent setting and Jefferson came to realize this. Does he let Marshall’s decision stand giving him the win or does he deliver Marbury’s commission hence ending Marshall’s invented authority of judicial review? Marshall relied on Jefferson’s ego which turned out to be a smart move. Jefferson got his win and Marshall significantly changed the U.S. Supreme Court into the powerful third branch of government which before Marbury v Madison, was more of an afterthought. To this very day, the U.S. Supreme Court’s authority for judicial review is an implied authority. End of History lesson.
Pretty interesting… huh? The key word in all this is “implied” and since the Marbury v Madison decision, there has been an implied trust between the Judiciary and the other two branches of government that neither will overstep their boundaries unless no other alternative can be found which has been basically successful. At least up until fairly recently. Especially within the era of Trump. Democrats have been suing Trump on just about every decision he’s made with the Supreme Court doing their best to stay out of it but Democrats are bound and determined to bring the court into politics. Is that true? Or are the tactics behind all their lawsuits in lower more partisan courts meant just to get a temporary injunction or temporary restraining order to slow the President down? Activist judges knowing full well their orders will be eventually reversed.
You see— that’s the game politicians (primarily Democrats) play and it’s a politically dangerous game because if they go too far and it does wind up at the Supreme Court, not only do they lose their case (in most recent instances,) it sets a precedent. From what I’ve seen over the years, political law-fare is mainly used as a delay tactic. Interestingly, Trump, having no desire to play the game at all has decided to blow-up the game entirely by forcing Democrats to continue playing theirs all the way to the finish line. For some unknown reason, instead of taking the “L” and let sleeping dogs lie until they can regroup and come up with better ideas and messaging, they’re using the courts as their delusional ill-contrived secret weapon to sabotage Trump and his administration. Huge mistake.
To this day, I have absolutely no idea why Democrats and the Left are crying Constitutional Crisis in regard to Trump and why they’re citing the Marbury v Madison case. If you want to know more about the case, there are plenty of books and articles on the net about it but going into the particulars and fine print can be a bit boring so I tried to stick with the nuts and bolts even though I’ve always found the case a little fascinating.
Three things we can glean from this slice of history. First— over the last two-hundred and twenty odd years, U.S. partisan politics is just as alive today as it was back then. Second— there’s always one party that will resort to unsavory tactics to control everything. Back then it was the Federalists. Now we have the Democrats. Most surprising of all is that what began as a relatively insignificant case involving one man’s judicial commission via a sneaky last minute partisan act by an outgoing President further packing the courts with completely partisan federal judges and the ego of a sitting President resulted in the reinvention of the U.S. Supreme Court we have to this very day.
While I don’t pretend to be an expert in anything relating to constitutional law, I have an excellent bullshit monitor. While everything in this epilog is pure speculation on my part, I try my best to use common sense (I know, there’s so little of it left among people these days). With everything Democrats have been threatening with packing the Supreme Court over decisions they’ve made in recent history, I have the feeling that deep down, SCOTUS can’t be very happy with the way they’ve been treated. Outside of the relatively few political cases they’ve ruled on in regard to laws passed by Congress including executive orders, they’ve pretty much gone under the auspice of… “If you don’t want to know, don’t ask” philosophy, “just try to play nicely.” Over the years, Democrats and activist Judges they appoint when in power have made this more difficult and I fear SCOTUS will be taking a stand in regard to these political games. Activist Judges will be held accountable for purposefully delaying via injunctive and restraint orders on that which they know have no legal basis. As for President Trump? He’s going to take it one step further and the way he’s doing this is……
Kinda Brilliant
Have you noticed Trump is going for the gusto right out of the gate? Why? For a few reasons. (1) He has four short years to right the ship. (2) He also knows Democrat’s last bastion of so-called resistance are the courts. (3) He knows there are more than enough activist judges out there who will play the delay game. More importantly, he (4) knows they— in most if not all cases will eventually lose and (5) unlike his first term, he now knows it was all about delay. Knowing this, he throws it all out there to the political wind right away. The faster he does this, the faster he’ll be sued and the faster he’ll win. Building the border wall taught him a very important lesson. Don’t wait.
But he doesn’t stop there. He figures— seeing as it’s his final term in office, it would be a good idea if all burning questions like birth-right citizenship and his ability to fire government workers should be answered once and for all by SCOTUS and the only way to accomplish this in a timely fashion is to make an executive order as soon as possible and wait to be sued. A bait Democrats just can’t resist. They opened the can of worms, Trump is going to empty it. In the end, Democrats will conclude it would have been much better
just to let sleeping dogs lie.
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