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"AMERICA'S  CONSTITUTIONAL PROBLEM"

by

William (Bill) Escoffery III, MD, JD

Republican Candidate for the U.S. Senate from Florida; 2010

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            America's problems didn't just begin with Obama. Our Nation has been sinking on its foundations for generations! The noble Founding Principles of Life, Liberty and Limited Government represent our birthright from our creator. But we have neglected to protect those precious freedoms.

            While attending Law-School and studying Constitutional Law, I began to realize that our country is not supposed to work this way. Due to a case called "Marbury vs. Madison" in 1803, the Supreme Court single-handedly grabbed co-equal power away from the other branches of Government, to establish the doctrine of “Judicial Supremacy”; and the courts have ever since usurped the peoples' prerogative to pass laws protecting them from such things as abortion, "Gay" rights, racial quotas and a host of other perverted mandates, often under imaginary "Penumbras" or shadows of The Constitution which The Justices have invented. Meantime the "Commerce Clause" in The Constitution, which was designed to ensure that states didn't block interstate trade, has been used to justify every illegitimate over-reach of federal regulatory power into our Sovereign States that you can imagine. In one Kansas case called "Wickard vs. Filburn" in 1942, the Commerce Clause was even used to determine how much of his own wheat a Kansas farmer could CONSUME ~ because that was said to "Affect Interstate Commerce!" Soon this clause will be used to reach into the states again, ram Obama-Care down your throat AND force you to purchase Government Health Care "or else" you'll face fines and possible imprisonment by a new Federal IRS-Police force!

            Let's identify where, in my opinion, our Constitutional decay commenced: Whereas, under the Articles of Confederation, the Federal Government was too weak and in-effectual and ultimately failed; under the subsequent Constitution, with the aid of The “Marbury" Doctrine, the Federal Government (through its judiciary branch) ultimately became too strong and improperly usurped individual and state freedoms. I would like to share with you part of a paper on this topic that I helped my former wife, Lucy Thornton research for her Law Journal. The following appears mostly verbatim (with some explanatory insertions) and all with her permission. The citations have been removed for newspaper reproduction. The entire document (relating to the 2000 election and Bush v. Gore) is available to interested readers who contact me.

 The Underpinnings of the Problem: MARBURY V. MADISON.

             The precise authority for judicial review to ensure legislative compliance with the Constitution derives from the seminal case of Marbury v. Madison. In Marbury, a commission for Justice of the Peace, un-delivered to a certain William Marbury by the outgoing Adams Administration was obstructed by incoming Jeffersonians. A writ of Mandamus, (an order issued by a superior authority instructing an official or inferior court to perform a specific duty) pursuant to the Judiciary Act, was presented to the Supreme Court to compel delivery of the commission. But Chief Justice John Marshall concluded that the Supreme Court lacked jurisdiction in Marbury's case because the Constitution did not afford original jurisdiction in Mandamus actions. This ensured that Marbury would be denied his commission and avoided a direct challenge to the Jeffersonians (which would have been politically dangerous for Marshall). But, in reaching that result, Marshall held that the Supreme Court, under implied powers deriving from Article Six, Section Two of the Constitution, had the power to review acts of Congress and void them if they conflict with the Constitution.

            By this bold maneuver, Marshal had arrogated the power of constitutional interpretation to the Court and subordinated the federal Congress to the federal Judiciary! The outcome of the Marbury v. Madison decision is "the basic principle that the Federal Judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our Constitutional system."

            The Court has extended these review powers not only to evaluation of Constitutional issues but also to State rulings and acts of the President and U.S. officials. The Supreme Court has thus assumed for itself the power of review of a whole range of state and federal actions - many of which are far afield from obvious Constitutional conflict - into dim, imaginary "Penumbras" (fanciful shadows) of the Constitution.

            By analogy, the state courts, taking their cue from the Marbury principle, exercise essentially a veto-power over actions of the state Legislatures and Executives. That was the most significant problem in the Florida Presidential Election of 2000: The Florida Supreme Court, under the rubric of ensuring that the "Voter Intent" should be discerned at all costs, contravened the statutory framework for the tallying of votes in Florida and mandated capricious and unfair recount procedures in violation of the Florida and National Legislative will, Florida Executive Authority, U.S. Supreme Court opinion and instructions; and the Fourteenth Amendment Due Process and Equal Protection guarantees of Law.

 A Closer Look at MARBURY

             The question of which branch of government should be the authoritative interpreter of the Constitution is conflicted. Many arguments center on the fact that the Federal Judiciary is most able, in that it is enforcing an anti-majoritarian American Constitution. But that in itself is seen by some as a reason to limit the role of the Court.

            The theory of Judicial Review was originally espoused by Hamilton in the Federalist Papers. He thought that the Judiciary should be intermediate between the people and the legislature and that any conflict between legislative act and Constitution should be resolved by the Court in favor of the Constitution. Others have disagreed, saying that the Judiciary should only interpret laws rather than involving itself in legislative evaluation. No less an expert than Judge Learned Hand believed that such judicial review violated separation of powers concerns.

            Judicial power is based on Article III which is significantly different from the Confederation Articles with their limited judicial authority. Edmond Randolph, at the Constitutional Convention, resolved "that a National Judiciary be established." Due to a compromise in regards to the conflict between state and federal lower courts, Madison and James Wilson proposed that The Constitution merely name the Federal Supreme Court into existence, but allow the Congress to decide on creation of inferior courts. In its first Judiciary Act of 1789, Congress established those lower federal courts, in which the judges have life-time tenure.

            In Marbury v. Madison, The Supreme Court considered many issues on its way to the jurisdictional decision. This was quite unusual, because when The Court employs what are called “prudential doctrines,” it usually does not stretch past a jurisdictional obstruction to reach the merits of the case. (But in this instance, Marshall first considered “the merits”, and then claimed he didn’t have Jurisdiction! That’s generally a big no-no in Supreme Court protocol).

            Marshall may have included the other parts of the opinion to reprimand the Jefferson administration. Or perhaps he thought that he needed to consider the constitutionality of the underlying statute as a preliminary evaluation. (Finally, in deciding the jurisdictional issue, he grabbed the exclusive right to Constitutional Interpretation as the sole prerogative of the judiciary!)

            In any event, the Court considered in sequence: whether Marbury had a right to the commission and whether the laws offered him a remedy. Next, can the Court issue such a remedy? If so, could it be Mandamus? The Court answered in the affirmative to all these questions and it even agreed that it had jurisdiction under the Judiciary Act to authorize Mandamus on original jurisdiction. But the Court believed that it, nevertheless, lacked jurisdiction of Marbury’s specific case; because Article III of the U.S. Constitution indicates that the original jurisdiction of the U.S. Supreme Court excludes such instances.

            Most important, Marshall held that the Supreme Court, under implied powers deriving from Article Six, Section Two of the Constitution, had the power to review acts of Congress and void them if they conflict with the Constitution. Section 13 of the Judiciary Act of 1789 had authorized the United States Courts to issue writs of Mandamus to persons holding office under the U.S. authority. But Article III of the U.S. Constitution outlines the original jurisdiction of the U.S. Supreme Court to exclude such instances, which fall rather under appellate jurisdiction. Any Law which conflicts with the Constitution is invalid, therefore Mandamus was denied.

            While some feel that Marbury strengthened the Judiciary and enabled it to equate with Legislative and Executive branches, others feel that it may, in fact, have caused the judiciary to assume unwarranted, excess leverage to become the first among equals; and perhaps even a Super-Legislature.

            The common law tradition which was the milieu in which the drafters of the American Constitution operated, demonstrated parliamentary supremacy. But there was a divergence from these concepts in an early decision by Lord Coke who held that "The Common Law will control acts of Parliament, and sometimes adjudge them to be utterly void." This resonated the Lockeian idea of "inalienable rights" whereby "We the people" indicated popular rather than parliamentary supremacy. Marshall makes the point that the Constitution, being an expression of the popular will, is paramount over ordinary law. Marbury establishes that it is the judiciary which has the final say in regard to these conflicts.

            In considering the final issue of Marbury v. Madison - whether the Court could declare the provision of the judiciary Act of 1789 unconstitutional, the Court said  “Constitutional limits on government powers are meaningless unless subject to judicial enforcement." Marshall believed that it was "Emphatically the province and duty of the judicial department to say what the law is." Finally, Marshall argued that, because the Constitution was the "Supreme Law of The Land," it should take precedence over the general laws of the United States.

            Constitutional Judicial Review was thus never inherent to the Constitution but was established by John Marshall in his Marbury v. Madison opinion. In a sense, his opponents thought that they were victorious in regard to what was really only a minor, parochial issue (the withholding of the Justice of the Peace commission) whereas Marshall had declared a significant overall principle of monumental importance. There was no way that he could force the Jeffersonians to deliver the commission to Marbury and it was quite possible, had he tried, that he might even have precipitated an attempt at impeachment of the Federalist Justices by Republicans. So he avoided the direct conflict and satisfied himself instead with establishing the monumental underlying “Sleeper” principle of Judicial Supremacy which has come to haunt us ever since.

            But in fact, serious questions arise as to the validity of court intervention in these areas when such nebulous concepts as "Penumbras" and "Substantive Due Process" appear to represent Super-Legislation rather than judicial interpretation. And, just as there is no explicit authority in the Constitution for the doctrine of Judicial Review, historical evidence of the intent of the Framers as to whether the Court should be paramount in Constitutional interpretation is unclear.

            Because Marbury v. Madison established a precedent whereby the judiciary is pre-eminent over the other two branches, there has come about an expectation of resolution of difficult political issues in the courts; whereas the judiciary should probably avoid many such controversies. That in turn has led to politicization of the courts whereby appointments are made by the political parties either by Executive appointment or through popular election - not with a view to ensuring justice - but rather from a desire to protect legislative agendas sent up from the Congress, which might be invalidated in the courts. There has also come to pass an expectation that such things as election conflicts like the 2000 Presidential contest, though they are essentially political, should be solved by courts.

            Moreover, today, we Citizens have come to routinely expect that most courts will invalidate the will of the people in regards to “Politically Correct” issues such as Abortion, Homosexuality, Illegal Immigration, limitations on Gun Rights and a host of other perversions of our freedoms. Blame it all on C.J. Marshall; and remember what Jefferson said: “The Judiciary of The United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederated fabric.” (1820).

            If you send me to D.C. in your behalf, I will fight mightily and ceaselessly to thwart these “sappers and miners” and get right onto the job of frustrating the federal judiciary, strengthening our Tenth Amendment States’ Rights AND empowering our Florida Legislature to take back its “Citizen Power!”

 

William (Bill) Escoffery III, MD, JD

Republican Candidate for the U.S. Senate from Florida; 2010

 

NOTE: To fully appreciate the intricate political nuances surrounding this case, you must read something like the Wikipedia entry on the topic: http://en.wikipedia.org/wiki/Marbury_v._Madison#Background_of_the_case


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WILLIAM ESCOFFERY III,

Candidate, U.S. SENATE, FL 2010

 

 

. William Escoffery III

FL Primary 24 August 2010

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Pd. Pol. Adv., paid for and approved by Dr. Bill Escoffery,

Candidate for U.S. Senate from Florida.

Copyright © 2010 by William Escoffery III. All rights reserved.
Last modified: 09/13/10