I have no doubt that William Marbury might have made as fine a Justice of the Peace as any man of his day.  I have no doubt, though, that the Supreme Court did the right thing when they intervened in his situation and made their decision.  I have no doubt that the Supreme Court should be called upon to maintain the balance of powers if conflict arises between the executive and legislative branches of the U. S. Government.  And I have no doubt that Chief Justice John Marshall knew the fine line he was walking when he delivered a decision written so as to carefully resolve any further issues that might arise concerning a writ of mandamus.

           However, I do doubt that Marshall’s decision was ever intended, by him or by anyone else of his day, to be a platform for judicial interference in legislative affairs.  I do doubt that the majority of the writers of the Constitution fully agreed with the idea of judicial review, otherwise some reference to it would have been included in the text of the document itself.  I do doubt that the application of a decision that may perhaps indicate that an act of the legislative branch may be in conflict with the Constitution is reason enough for allowing the Court to “strike it down” as though its powers were equal to the power of a Presidential veto.  I do doubt that an act of the Court should or could be considered de facto legislation.  And I do doubt that the evaluation of a law against the standard of the Constitution with an eye toward creating legal precedent for its future enforcement is tantamount to the interpreting of the Constitution itself.

Any red flags?

           Let’s face it—most of us have never read the Constitution all the way through, if we’ve read any of it at all.  Many do not have a copy of their own; if so, we cannot find it, otherwise we are not quite sure where to look it up on line.  If our schooling was good, we may have been required to memorize the Preamble, only to forget it as soon as the test was over.  We assume that we know what it says, but only because someone else told us—besides, isn’t it just too boring to actually read the whole thing?  We say that we understand what it means well enough, and after all, very few of us are legal scholars, so how can we get all the nuances without a guide?  Yet we say we accept and believe in our Constitution completely, and swear that we will defend it with our very lives.  All this we will do for a document most of us have never even actually read.

           Unless such a document is drawn up as a means of conveying power to a particular person or dynasty, no piece of literature in the history of the world—be it political, religious, or any other authoritative standard—can be construed as something which vests its sole interpretation in the opinions of a single person or any group of people within the society which it addresses.  To do so would be utter folly; such a practice would inevitably create conflict between the text itself and the person or persons who supposedly possessed such power.  And we cannot forget that there would be a cacophony of voices with competing interpretations who would vie to dominate such a person or persons with an eye to their own special interests.  In other words, no cogent documental standard would dare call itself that but then allow itself to be subject to the judgments—yea, the whims—of a subset within the set.

           There is nothing wrong with the idea of reading a document and allowing it to mean what it says and say what it means.  Certainly it was written with that end in mind, for no creator of an authoritative document wishes it to be misunderstood.  Documents of great complexity may rely on the reader examining the entire body of text in order to find meaning for one section within another section; otherwise, if a document is not written by people who are sound enough to author something which can stand alone or fit within the context of a greater body of related and equally authoritative works, it probably should not be taken seriously.

           As adult Americans, we owe it to ourselves, our families and our fellow citizens to give our Constitution a thorough and thoughtful reading.  We then need to compare what we read there to any practice or tradition we see enacted in our government today and see whether or not they line up; and if not, we should study our history and find out why not.  And if the actions of any official or department significantly vary from what is set forth in the plain text of the document itself, our mental alarms should deafen us.

How this de-evolution started

           The first two paragraphs of this essay refer to the decision by the U. S. Supreme Court in the case known as Marbury v. Madison.  Most historians look to this decision as the springboard for the practice of judicial review; in fact, the Supreme Court’s own website states that it was not until this case arose that judicial review was confirmed as invoked by Chief Justice Marshall.  In its essay entitled “The Court and Constitutional Interpretation,” the writer declares that, “As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.”  Near the end of the article, it goes so far as to assert that, “… that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the court.” (www.supremecourtus.gov/about/constitutional.pdf)

           So am I the only one who hears warning bells when I see that additional power came to the Supreme Court by way of a Supreme Court decision?  Who else in public service in the U. S. would dare possess the raw audacity to selfishly and single-handedly invoke vital governmental power and then proclaim it as above challenge? (OK, I can think of a couple …)  Can any act performed by a single part of any tripartite entity authentically be considered as “virtually final?”  Am I the only one who gets suspicious when I compare the supposed implications of this ruling to the text of the Constitution and find a glaring discrepancy?  Should I be considered illiterate because I refuse to read between the lines—especially when I don’t see something there—because it really isn’t there?  Or should I simply be written off as a “textualist” and told that that’s merely my way of looking at it?

           Happily, I’m not the only suspicious person when it comes to this subject.  Robert L. Clinton makes a wonderful argument in his document “Precedent as Mythology: The Case of Marbury v. Madison” which can be found on-line at the Supreme Court Historical Society website.  In this essay, he quotes biographer Albert Beveridge who calls the Marbury decision “perfectly calculated audacity” and later quotes Robert McCloskey who calls the decision “a master-work of indirection.”  Clinton further says that, “The Supreme Court did not cite Marbury in support of judicial review until 1887, and in that instance the Court failed to make it plain that it knew exactly what it had cited.”  The balance of the article goes on to demonstrate how the present-day interpretation of the Marbury decision conveys to the Court a much more exaggerated authority than it was originally intended to (For further reading, see www.supremecourthistory.org).  Continued on-line research will reveal many other learned dissenting voices form many quarters; I will leave it to you to go through those on your own.

Two legitimate methods

           When a simple contract dispute arises and is taken to a civil court, a judge will often describe to the litigants how he will decide the case by using the phrase “inside the four corners of the contract.”  Perhaps it would then be fitting to apply this same wisdom to the current discussion and see what this covenant with the American people says about the legitimate ways of determining its own meaning and interpretation.

           The more obvious of these ways is the Fifth Article—the amendment process.  As time progressed in our young nation after the adoption of the new Constitution, it became clear that some tweaking needed to happen.  Some things needed changing or improving, and some simply further definition or more specificity.  The people, through their legislators, could keep their government a dynamic, responsive entity rather than either getting stuck with a stagnant design for the federal body politic, or else having to rewrite it from the ground up.  So, thanks to the inclusion of this intelligent and innovative provision by our Framers, over time this process proved to be flexible enough to serve the citizens and remain “valid to all intents and purposes.”

           The second means is ostensibly more obscure, but more direct.  The electoral process is our means of choosing representatives to our government who will guide how things are done there and act according to our wishes.  Therefore, informed voters will vote for candidates whose views best represent their own concerns about the issues and thus delegate to them the power to make decisions compatible with those views.  It may sound simple, but a candidate’s underlying ideological platform is the factor that we generally consider here, often without really thinking it through.  So by electing people for government offices, we are choosing the ones who will create and execute laws and policies according to our interpretation of the Constitution.  Thus we see that it is we the people who wield this power every time we vote, because we seek to install those persons who theoretically will steer our nation in the direction we want it to go.

           In the case of appointed officials the same rule applies—not only to the officials themselves, but to those who appoint them.  Such choices must be consistent with the will of the people as expressed in the polling places.  They will be so unless a candidate misrepresents his or her position during their campaign or changes views after taking office; in such a case, Election Day (or Re-election Day) becomes a Day of Reckoning.  For the unelected, accountability may be demanded from them by means of articles of impeachment, provided that those who draw up such a list actually have the backbone to see the process through to the potential removal from office of the offending person.