Dear Editor:
A couple of weeks ago I heard Mark Levin talking about the Supreme Court case of Marbury v. Madison. Although I was not able to listen to everything he had to say, I realized that he and I were on the same page about this case. Thomas Jefferson started criticizing this case shortly after it was decided in 1803 until almost the day he died on July 4, 1826. Jefferson predicted because of this case Judges would become despots(i.e. Dictators). Not only did that happen but the legal profession itself became what I see as a force for tyranny against the citizens of this country. I have always felt that this case sowed the seeds of tyranny although it took it many decades to mature. It is the reason that many lawyers consider the Constitution a living and breathing document something that our founders had never envisioned it to be.
Without getting into the details of the case, the decision established the concept of judicial review. That means that the Supreme Court has the power to determine that a law is unconstitutional. There is nothing stated in the constitution that the court has the power to overturn a law that was passed by Congress and signed by the president. Chief Justice John Marshall thought that the court should have this power and that our framers obviously forgot to make it part of the Constitution! Today Marshall is honored as the father of our federal court system. Jefferson pointed out that although Marshall may have thought himself a legal scholar, the only formal legal education he had was a mere six-week course he took at the college of William and Mary. One other thing, this case could have been decided with the same result without declaring a certain judiciary law unconstitutional.
It took some time for the full force and effect of this Marbury v. Madison case to be felt. As some legal writers say it took a while for it to mature. Initially federal courts were cautious about using this power on all cases. But by the 1930s the Supreme Court was overturning any and all cases that the justices thought were contrary to the Constitution. For example, the court found that the commerce clause permitted the federal government to control things that our founders would have considered solely up to the states. Ergo the living and breathing Constitution was born.
I am convinced that because of this, the power of the impartial jury described in the sixth amendment has been effectively eliminated by judicial decree. Also, the sixth amendment refers to the person accused of a crime as the accused not as a defendant. Presently virtually all trial judges have become the despots that Jefferson predicted they would be. These judges tell the jury that they must be partial to the government and follow the government’s law that was chosen by the prosecutor (a lawyer) and declared to them by the judge another lawyer and government agent just like the prosecutor is. Actually, the impartial jury that those who wrote the sixth amendment was referring to had the option of not following the law if they found it unfair or unjust in the particular case they were involved in. Our founders knew that a few guilty people may be found not guilty. They felt that was a fair price to pay to ensure that an innocent person was not executed. Justice has truly been turned on its head today!
Dr. W. David Herbert
Senior attorney
State Bar of Montana
Billings, MT
