BY MIKE MAGEE
As we enter a brand new and doubtlessly historic week, with a former President doing his finest to reignite a Civil Warfare in our nation, we do properly to take a breath and reread James Madison’s phrases from Federalist No. 51. However first, a number of phrases of historical past.
When it got here to checks and balances on this new nationwide experiment in self governance, the Founders, whereas establishing three co-equal branches, left a type of branches the duty of defining by apply its personal energy and affect.
The brand new Structure in 1787 awarded one department, the elected Congress, the daunting energy to question, convict and take away representatives or appointed federal officers for due trigger as much as the President himself. But it surely additionally empowered a second department, the Govt, by way of its President, veto energy to verify legislative excesses and the privilege of initiating appointments to the federal judiciary. Solely the third department of the federal government, the Judiciary, was left intentionally “elastic,” destined to develop into “the triangle of energy.”
13 years later, on February 17, 1801, Congress was pressured to interrupt a tie within the Electoral School vote, resolving a Constitutional disaster and declaring a victor in certainly one of “essentially the most acrimonious presidential campaigns” in U.S. historical past. Thomas Jefferson was awarded the victory, and John Adams acquiesced and was despatched packing a month later. However two days earlier than he departed, Adams unloaded a number of appointments of circuit justices and justices of the peace which the U.S. Senate shortly confirmed on March third. Within the rush, Adam’s Secretary of State, John Marshall (quickly to grow to be Chief Justice Marshall of the Supreme Courtroom underneath President Jefferson) didn’t have time to finish a last obligatory step, delivering the commissions, to a number of the appointees.
When Jefferson took workplace on March 4th, and noticed the chance to dam some judgeships on the technicality, he instructed his new Secretary of State, James Madison, to not ship the commissions. A kind of potential new judges, a Maryland businessman, William Marbury, after making an attempt to unlock his fee for a number of months, filed a lawsuit in December, 1801 demanding that his fee be delivered by way of a “writ of mandamus.” ( “an order from a courtroom to an inferior authorities official ordering the federal government official to correctly fulfill their official duties or right an abuse of discretion.”)
Finally the case got here to the Supreme Courtroom and John Marshall delivered the unanimous verdict on February 24, 1803 in Marbury v. Madison.
In brief, William Marbury didn’t get his judgeship, however not as a result of he didn’t deserve it. He did, and the choice mentioned as a lot. However the Courtroom additionally acknowledged that the authority that Part 13 of the Judiciary Act of 1789 had granted the Courtroom to challenge “writs of mandamus” (and successfully drive Secretary of State Madison to ship the appointment) was unconstitutional.
This was as a result of Article III of the U.S. Constitution (signed September 17, 1787) made clear that the Supreme Courtroom had “authentic jurisdiction over circumstances solely the place a U.S. state is get together to the lawsuit.” As legal experts have defined: Whereas the choice “restricted federal courtroom’s jurisdiction, it cemented the Courtroom’s standing as the final word interpreter of the Structure.”
William Marbury’s loss turned our nation’s acquire. Our third department of presidency, find its voice, outlined its personal powers. As Justice Marshall wrote “It’s emphatically the province and obligation of the Judicial Division to say what the legislation is…a Regulation repugnant to the Structure is void.” As legislation historian Lawrence Friedman wrote, “Right here for the primary time John Marshall within the U.S. Supreme Courtroom dared to declare an act of Congress to be unconstitutional.”
Donald Trump, for a time, sat himself in the midst of America’s triangle of energy. From his seat as President, he put in himself as “a Golden Idol” and had a commanding view of the Govt department of presidency. By aligning with the Federalist Society, the Christian Proper and Mitch McConnell, he was capable of stack the Judiciary and ship a promised reversal of Roe v. Wade. However that federal overreach, which included rejecting 50 years of precedent and compromising ladies’s freedom and autonomy over their very own our bodies, fueled a powerful 2020 Trump defeat and Republican statewide under-performance within the 2022 Mid-term elections.
It additionally triggered a primary ever President-led armed revolt on January 6, 2021. However in a real-life “Democracy stress check,” this can be the second when our three branches of presidency lastly ship a message to all People that no man is above the legislation.
First, our citizenry pried the Govt department freed from Trump in 2020.
Second, our Judiciary, together with state and federal courts, have rejected practically 100 bogus circumstances led by unethical attorneys on Trump’s behalf, and are nearing a number of indictments of a now, unprotected and disgraced former President.
Third, a Republican led Congress has been pressured to privately cooperate on actual points, whereas publicly feigning continued fealty to Trump and a small band of Trump look-alike’s intent on driving their get together over the cliff.
So what did James Madison, writer of Federalist No. 51, must say about all this?
On February 8, 1788, he wrote: “If males had been angels, no authorities can be obligatory. If angels had been to manipulate males, neither exterior nor inside controls on authorities can be obligatory. In forming a authorities which is to be administered by males over males, the good issue lies on this: you should first allow authorities to manage the ruled; and within the subsequent place oblige it to manage itself.”
Trump is a stress check, and our nation is rising to the problem. We’re regularly, slowly and painfully, studying to “management ourselves” by imposing our legal guidelines. Democracy is a piece in progress.
Mike Magee MD is a Medical Historian and writer of CODE BLUE: Inside the Medical-Industrial Complex.
Leave a Reply