Judicial Review is a Fabrication, the Supreme Court is Illegitimate
The following article is written by David De Hart, a former American history high school teacher and an activist for a democratic constitution.
Judicial Review is a Fabrication, the Supreme Court is Illegitimate
If you think the Supreme Court has become too political, it has been so since its inception. We should blame John Marshall rather than praise him.
John Marshall was Secretary of State, appointed by Federalist President John Adams. Adams also appointed Marshall to be Chief Justice of the Supreme Court, the only person ever to hold both positions simultaneously, although only for about a month. As Secretary of State, it was Marshall’s job to deliver all of the federal court appointments made by Adams. On the last day of Adam’s presidency, many of the nominee’s official letters remained on Marshall’s desk. The ‘midnight appointments’ were never delivered before Jefferson, a Democratic-Republican took office the next day because Marshall missed the deadline. Marbury’s appointment to magistrate for the District of Columbia was one of them. Court appointments have always been political.
It would be reasonable to believe that as Chief Justice of the Supreme Court, Marshall should have recused himself from Marbury v. Madison. His negligence as Secretary of State precipitated Marbury’s law suit which he filed with the Supreme Court, as stipulated in the Judiciary Act of 1789.
Marshall now found himself in a bind politically, not knowing exactly how to handle this delicate situation involving a law suit with potential to create Constitutional crisis in a nascent republic. As a Federalist, Marshall knew his decision would be the lasting legacy of the Federalist era with Democratic Republicans at the door to take office. Some describe his decision ingenious with lasting consequences. In reality, with a political sleight of hand his decision established precedent with lasting but terrible consequences overall for far too many.
Marshall found his solution in Article III, dedicated to the Supreme Court. Specific language identified the exact cases the Supreme Court had original jurisdiction over, that is, which cases the court could hear first without appeal. The justice of the peace or a magistrate position was not listed in Article III, Section 2 therefore did not have original jurisdiction as did those specifically named by the Founders. Marshall declared the section of the Judicial Act that had added the office of magistrate to Article III unconstitutional. Marbury never became a magistrate.
Judicial review is never mentioned once in the Constitution, yet from Marshall’s decision in Marbury v. Madison, the Court miraculously gave itself the power to review and declare unconstitutional any legislation passed by Congress.
Take for example, a legislative ban from Congress on assault weapons. Try digging into the Constitution to find anything specific about assault weapons. Of course, there is not a word in our vague, shortly worded relic from the 18th Century about assault weapons. However, for an answer, the justices will refer to the sparsely worded Second Amendment, established for slave holders so they could control their human property. When it works in their favor, as it does too often, conservative justices base their legal reasoning on originalism, interpreting the intent of the founders. Good luck. Despite reading the historical documents, identifying the intent of living people let alone of our dead founders of the 1700s, is a difficult task, although maybe not quite so with white men who owned slaves. Of course with no specific language on assault weapons the court will fall back to states’ rights, allowing individual state courts to define the rights for gun owners and women.
This precedent set by the court to arbitrarily choose any law to determine its constitutionality challenges the assertion that the United States has a democratic government. A Constitutional Court might make decisions on procedure or conflicts between states, individuals and issues with foreign countries as it does in other countries. However, no Supreme Court should have the power to overturn legislation passed by a democratic majority. No other so-called democratic country has a court with such power. The right for a woman to choose, the right for women to have power and control over their bodies are fundamental rights. No court should have the power to overturn laws that establish equal protection in basic human and civil rights.
Yet, our Constitution allows for the Senate, an undemocratic institution that negates the defining principle and practice of a democratic system, one person, one equal vote. The Senate, with its power to squash bills passed by the majority would have no role to play in a democratic system.
To defend judicial review, is to support an illegitimate court given power by an undemocratic Constitution with little relevance to 21st Century problems. It allows our laws to be overturned by five political actors on a political court based on a fabricated precedent without legal standing.
Has the Supreme Court done more damage than good since it was established? History declares damage the winner. History allows us to understand the necessity of a democratic Constitution, which ensures our votes count, that guarantees Americans actually have input to policy making. Who better to protect and guarantee basic human and civil rights? Certainly not a political court with too much power where ideology trumps fairness, reason, and justice.