I have wondered many times why there is no outrage or unease on the part of the US public, media or pundits about the frequent five to four decisions on many crucial cases concerning public policy, future of the country and matters of vital economic importance to the citizens. The 2000 presidential election, the removal of restrictions on corporate financing of election related advocacy under the masquerade of the first amendment, the twisted interpretation of the second amendment to disqualify gun control laws of the District of Columbia and Chicago, and the sure to come in the near future controversy on legalizing marriage between homosexuals are a few of the many such decisions made or likely to be made in the future.
One can understand why the highest court should stand in judgment regarding the validity of a law formulated by legislators who maybe tempted to pander to the mercurial public passions to ensure their successful election to feed at the public trough. Another historic reason used as a precedent is that the Constitution is the more sacrosanct in comparison to a statute, which it trumps. The Supreme Court, in its wisdom, is the ultimate arbiter of such a contest. A circular and tautological reason used in additional support of the Constitution’s primacy is that the Constitution has been promulgated by the representatives of the people and ratified by an overwhelming majority of the population of the states.
These arguments are specious and do not enshrine the Constitution with a halo or even a patina or veneer of justice. In its original version it put its legal and sacred imprimatur on slavery and denied a vote to all but white males owning property. The Supreme Court decisions of Dred Scott and Plessy reflect a court completely blinded by prejudice, devoid of decency and justice and a slave and prisoner of a shameful Constitution. The first deemed a black slave as property and not a human being and the second justified and sanctioned segregation by lying that the separation of races did not violate equality despite the glaring difference in public facilities that whites and blacks were compelled to use because of segregation.
Other cases like forced sterilization of persons (Buck vs Bell) by conveniently and falsely labeling them as retarded and thus threats to the nation’s disgusting policy of eugenics, which the Nazis learnt from America, are a blot on the Court. Then there was the Lochner case where the Supreme Court struck down a New York State law which restricted employers to not exact more than ten hours of work per day and sixty hours per week from their employee bakers. The Court wrote that it was entirely up to the employer to decide how many hours an employee could be forced to work. In the Schenk case, the Court prevented a person from speaking out against (publishing pamphlets) the military draft prior to US entry in WW1 by equating protest as equivalent to shouting fire in a crowded theater (a clear and present public danger). The majority opinions in the Schenk and Buck cases were the handiwork of the famous and much respected and looked up to Judge Oliver Wendell Holmes Jr.
The very origins of the US supreme Court hold little hope of much better. It was the very first Chief Justice John Jay, who unequivocally stated that those who own the country should rule it. Madison, the father of the Constitution clearly was afraid of democracy and thus chose a republican form of government with direct election of only the House of Representatives and not the Senate or the president and severely restricted the right to vote. His writings in the Federalist Papers openly state his views, which have now resulted in most US senators and representatives having little or no interest in the public or national good and obsessed only with their re-election to office to maintain their power, perks and privilege. That is why we have highways, buildings, bridges, endowed professorships and convention centers named after legislators who have appropriated public money or done favors to vested interests for the sake of personal benefit or glory.
The present Constitution was in fact secret conspiracy, partly as a response to the Shays rebellion demanding the forgiveness of debt by farmers and the quarrels and skirmishes between the thirteen states for commerce and boundaries. The benefits which made the US eventually a great and powerful nation were secondary. The great John Adams, the second president revoked the first amendment to pass an Aliens and Sedition Act into law. The law has been misused against the native Indians numerous times (Cherokee Trail of Tears), against the Chinese in the Chinese Exclusion Act and the Japanese in the California Internment Act.
The Chief Justice as John Marshall is called used the Marbury vs Madison Case by some manipulative twisting of the law to set up the ability of unelected Supreme Court Justices to become more equal than other branches of government, as Orwell would put it. John Adams lost the presidential election but in those days it took time for the newly elected Jefferson to take over the White House and administration, so Adams was a lame duck president for a few extra weeks. Like other later presidents including Bush and Obama, he made many recess like appointments. What follows is a summary of the case from Wikipedia.
Background of the Case
by William Marbury
In the presidential election of 1800, Thomas Jefferson defeated John Adams, becoming the third President of the United States. Although the election was decided on February 17, 1801, Jefferson did not take office until March 4, 1801. Until that time, outgoing president Adams and the Federalist-controlled 6th Congress were still in power. During this lame-duck session, Congress passed the Judiciary Act of 1801. This Act modified the Judiciary Act of 1789 in establishing ten new district courts, expanding the number of circuit courts from three to six, and adding additional judges to each circuit, giving the President the authority to appoint Federal judges and justices of the peace. The act also reduced the number of Supreme Court justices from six to five, effective upon the next vacancy in the Court.[1][2]
On March 3, just before his term was to end, Adams, in an attempt to stymie the incoming Democratic-Republican Congress and administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous "Midnight Judges", were all located in the Washington and Alexandria area.[citation needed] One of them was William Marbury, a native of Maryland and a prosperous financier. An ardent Federalist, Marbury was active in Maryland politics and a vigorous supporter of the Adams presidency.[citation needed] He had been appointed to the position of justice of the peace in the District of Columbia. The term for a justice of the peace was five years, and they were "authorized to hold courts and cognizance of personal demands of the value of 20 dollars".[3]
On the following day, the appointments were approved en masse by the Senate; however, to go into effect, the commissions had to be delivered to those appointed. This task fell to John Marshall, who, even though recently appointed Chief Justice of the United States, continued as the acting Secretary of State at President Adams's personal request. [citation needed]
While a majority of the commissions were delivered, it proved impossible for all of them to be delivered before Adams's term as president expired. As these appointments were routine in nature, Marshall assumed the new Secretary of State James Madison would see they were delivered, since "they had been properly submitted and approved, and were, therefore, legally valid appointments."[4] On March 4, 1801, Thomas Jefferson was sworn in as President. As soon as he was able, President Jefferson ordered Levi Lincoln, who was the new administration's Attorney General and acting Secretary of State until the arrival of James Madison, not to deliver the remaining appointments. Without the commissions, the appointees were unable to assume the offices and duties to which they had been appointed. In Jefferson's opinion, the undelivered commissions, not having been delivered on time, were void.[5]
The newly sworn-in Democratic-Republican 7th Congress immediately set about voiding the Judiciary Act of 1801 with their own Judiciary Act of 1802 which reversed the act of 1801 so that the Judicial branch once again operated under the dictates of the original Judiciary Act of 1789. In addition, it replaced the Court's two annual sessions with one session to begin on the first Monday in February, and "canceled the Supreme Court term scheduled for June of that year [1802] ... seeking to delay a ruling on the constitutionality of the repeal act until months after the new judicial system was in operation."[6]”
(Verbatim from Wikipedia)
Not only was John Marshall’s legal logic faulty , but he went beyond necessity in the case, when he proclaimed that the issuance of the mandamus was beyond the Court’s jurisdiction and the Act passed by Congress was unconstitutional. Nobody had asked him or the Court about the validity of the Judicial Act passed by Congress. Furthermore Adams had asked him to act as the Secretary of State in the transitional period before assuming the position of the Chief Justice of the US Supreme Court, so it was his duty to see that the appointment letters were duly sent, a task he had assigned to his brother. Knowing all this he should have recused himself from sitting on the bench to hear the case, but like other Supreme Court Justices, not to be mentioned, he was conveniently oblivious to the obvious conflict of interest.
Over the centuries, the not to be outdone Democrat and Republican legislators used their power to carry the partisanship into the Court and creating its factions by diehard extremist appointees, so that the swing vote of a single justice like Sandra Day O’Connor or Anthony Kennedy have now become decisive in what is legal and constitutional and can overrule the will of the people expressed by referendum, not on genuinely legal or moral grounds, but only because they or some kooky Federal Judge desires to be in a footnote in history. So the high platitudes and oracular judgments of the US Supreme Court can be best summed up by an apocryphal answer that Darwin is said to have given some pranksters who glued together the front half of a bumble bee to the back half of a beetle and then took it to Darwin and asked him to classify the insect. Darwin immediately caught on and asked the pranksters if the insect hummed, when alive. The pranksters nodded yes. Darwin quipped, “Gentlemen, this is obviously a classical specimen of a HUMBUG.”
