Dear Editor,
As far back as a child that I can remember, my paternal grandfather would tell me about the founders of our country. He was especially impressed with Thomas Jefferson. Because of this and more things I learned about Jefferson, I considered him as our greatest founder. I still do. I was over 40 years old and well established in my medical specialty when I decided to enroll in law school. It was during my Constitutional law course that I figured out why Thomas Jefferson was such a persona non grata in law school. The reason is because of his rather severe criticism of the decision in the Marbury v. Madison case. He continuously criticized this case from 1803 when it was decided until almost the time he died in 1826.
The decision of the Marbury v. Madison case authored by John Marshall gave the court the power to declare null and void (i.e. unConstitutional ) a law passed by congress and signed by the president . This power is not allowed by the Constitution as our founders wrote it. This decision obviously allowed judges to legislate from the bench anytime they wanted to. This decision unbalanced the balance of powers found in the Constitution. This obviously put the judicial branch in the driver’s seat. Jefferson was opposed to this, and he also predicted that judges would become dictators. Shortly after becoming an attorney I began to realize what dictators judges really are. One of the first jobs I had as an attorney was to review trial transcripts of jury trials mainly involving murder cases. I found that almost all trial judges refer to the court room as their court room. These same judges would instruct jurors that they must follow the law as stated to them by the judge and the prosecutor. Of course, this instruction is unConstitutional. The impartial jury as described in the sixth amendment is not Constitutionally bound to follow the law.
Many people today state that we should get back to the Constitution or that the Constitution is the solution. These statements will be nothing more than simple bromides unless and until something is done about the Marbury v. Madison decision. Until this decision is effectively overruled, the judiciary branch aided and abetted by the legal profession will continuously pull our Constitutional republic into an abyss in which our country is no longer a republic or guided by our original Constitution.
Dr. W. David Herbert
Billings
