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How the Supreme Court Became Supreme: The Story of America Series [Ep. 17]

Our American Stories / Lee Habeeb
The Truth Network Radio
March 6, 2024 3:00 am

How the Supreme Court Became Supreme: The Story of America Series [Ep. 17]

Our American Stories / Lee Habeeb

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March 6, 2024 3:00 am

On this episode of Our American Stories, when the Constitution was written, it didn't specify the exact role of the Supreme Court. It took a few undelivered letters for that to change. Bill McClay, author of Land of Hope, tells the story.

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That's cheapcaribbean.com. This is Lee Habib and this is Our American Stories, the show where America is the star and the American people. Up next, another installment in our series about us.

The Story of America series with Hillsdale College professor and author of the terrific book Land of Hope. We're talking about Bill McClay. The election of 1800 was one of many closely contested elections in American history and it ended with Thomas Jefferson in the White House. Let's get into the story. Here's McClay. When Jefferson was finally inaugurated, it was not in New York City, it was not in Philadelphia, it was Washington DC.

A very small town, more like a village than anything, although built according to a great plan by the French architect and planner of Pierre L'Enfant. So Jefferson assumes the presidency and remember Washington has laid down a marker about what a president should be like. Adams more or less tried to follow as best he could. Jefferson dropped that. His style his style was different.

It was more informal, almost casual at times. Being a person of Republican sensibility, he did not want to exude the aura of a king. He wanted to be a man among common men. There were no fancy carriages drawn by teams of fancy horses as Washington had insisted on. Instead, Jefferson walked to the Capitol on the day of his inauguration. But one should be careful taking symbols for being identical to the things they symbolize and actually Jefferson was a party man. He used the executive office to advance the interests of his party in a way that neither of his two predecessors had done, certainly not to the same degree. John Adams did do some of it, but not as well, not as efficiently and effectively as Jefferson did. He established Republican dominance in the legislature.

He appointed his people to the cabinet. He managed to make what had been a Federalist government into a Republican-dominated one. And in fact, thanks to Jefferson's efforts, it would only be a few years later that the Federalist Party would disappear completely. So there's one interesting thing about the Republican Party. So there's one area though where Jefferson was not as effective. The Federalists kept hanging on to one part of the national government, the judiciary. This was sort of symbolically appropriate because Jefferson hated judges.

Why? Well, think about it. What is the least democratic institution in the government? What branch is the least answerable to public sentiments? Representatives and even senators, presidents too, can be voted out of office, but you can't do that with the Supreme Court. You can yell and scream and jump up and down and curse and otherwise fulminate against the Supreme Court. You can demand impeachment of justices. That is a workable constitutional option, but this is just about the only one. Otherwise, they're shielded from public opinion.

They're shielded from the vagaries of public sentiment. So Jefferson didn't like them. He thought the government should be answerable to the people. Jefferson even thought there ought to be revolutions periodically. And the Constitution should be rewritten, should be replaced. He didn't like the idea of venerating the Constitution like it was the Ark of the Covenant, as he sometimes said.

It was a document that represented popular sentiment at a particular moment, but not to be venerated beyond that. He had a rather low view in that sense of the Constitution, which by the way, he had no role in drafting, not coincidentally. So Jefferson didn't like judges, distrusted judges. He was infuriated with Adams when in his last days in office, Adams had appointed a Federalist named John Marshall to be Chief Justice of the Supreme Court.

And Adams managed to get through the Congress the Judiciary Act, which greatly strengthened the Federalist control over the judiciary. These are familiar things. Presidents giving pardons, shoving through last-minute legislation before the ends of their terms. It's not new.

It's been going on all along. So who was John Marshall, this new Chief Justice? What was his experience being a judge?

Well, he had almost no experience. He was a relative of Jefferson's when he did not like, and he was coming into a place where the constitutional guidelines were not clear. What was the role of the Supreme Court? The Constitution specifies that there is to be a Supreme Court.

It doesn't really say what it does. But in any event, there needed to be someone, some enforcer of free speech, of the Bill of Rights, something to serve as a check on other branches of the government. And this is where we come to what was probably the most consequential decision rendered by Marshall's court. And this is a case called Marbury v. Madison. And Marbury v. Madison creates the doctrine of judicial review that the Supreme Court has the power and responsibility to declare acts of Congress unconstitutional, although it can't just do it out of the blue. It's an appellate court, so an appeal has to be brought to the court that the court can rule on. That's what Marbury v. Madison was. It was a case, extremely clever example of Marshall's judicial brilliance, that it created the basis for judicial review. And I need to give a little background about this case. It's complicated. When we come back, more of the story of Marbury v. Madison here on Our American Stories.

This is Lee Habib, and this is Our American Stories. And all of our history stories are brought to us by our generous sponsors, including Hillsdale College, where students go to learn all the things that are beautiful in life and all the things that matter in life. If you can't get to Hillsdale, Hillsdale will come to you with their free and terrific online courses. Go to hillsdale.edu.

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So you'll feel like you're right in the action. Find the perfect TCL Roku TV for you today at go.tcl.com slash TCL Roku TV. And we return to our American stories and our series about us. The story of America series. When we last left off, we found out that Jefferson completely recreated the federal government, not only in his image, not only with his values, but his party's image and values, except for one branch, the judiciary. That would set up a massive fight over an undelivered letter. Let's return to the story.

Okay. Adams appoints John Marshall, a distant cousin of Jefferson, whom he did not dislike, chief justice. And then Adams passes, has Congress pass a judiciary act of 1801, which creates six new federal circuit courts.

There's nothing in the constitution about this. And he staffed them all with federalists from the judges down to the clerks, 100% federalists. It's a very crafty move, Mr. Adams. He was looking at creating a federalist stronghold for years to come.

Here's what happens. Jefferson discovered that some of the, this is crafty politicians all the way down. Jefferson discovered that Adams, these appointments to the circuit courts had not always gone through that the documents appointing justices of the peace in the district of Columbia had not been mailed out by accident. They'd been signed by Adams, but Jefferson held onto them. He stopped delivery of the appointments themselves. In response to that, one of the appointees named William Marbury sued for a court order that would demand that Madison, who was Jefferson's secretary of state, would deliver Marbury's commission.

That's logical. So what does Marshall do? This comes before the Supreme Court. He's got a dilemma. If he refused to issue the order, it would avoid a collision with the new administration, but it would appear he was giving in to Jefferson and that would set a bad precedent. It would undermine the separation of powers. It would also deprive the judiciary of another federalist judge on a technicality. But what if Marshall had agreed to issue the order to grant Marbury his commission? What would happen if Jefferson ignored him? The country was very sour towards the federalists at this point. This would be a disaster for the court because it would advertise the court's lack of power.

That too would undermine the separation of powers. So he had a dilemma, as I say. Either way that he went, he was looking at some very real problems, the likelihood of damaging the institution of which he was a part.

So his strategy to deal with this was utterly ingenious. First, he argued that Marbury had a right to his commission under his reading of the Judiciary Act of 1789, which set up the federal court system in the first place. But the clause that Marbury invoked was unconstitutional. Congress could not legally grant the Supreme Court the power to issue writs of mandamus, you know, demands such as the one they were seeking. This, in turn, meant that the law that Marbury was invoking was invalid and could not be used. So Marbury would not be able to receive his commission. Oh, okay, you follow that?

The brilliance of it might not be apparent to the average person. It's important to keep in mind that courts, particularly courts of appeal, operate on the basis of precedent, legal precedent. What was done before is the basis for what's to be done now and in the future. The way I'd like to put it is that Marshall was playing a game of chess here and sacrificing one of his pawns, one of his lesser, less valuable pieces, in order to secure a more enduring victory. He sacrificed Marbury's commission to take hold of something larger. He gave up one single judge in exchange for a precedent that could be used and used again and again and again because it established the independent power of the Supreme Court to rule the country. The power of the Supreme Court to rule an act of Congress unconstitutional. So he gave Jefferson the outcome he wanted, the decision he wanted, but by means of reasoning that Jefferson did not want at all.

And there was nothing he could do about it because the immediate result of the decision was in line with what Jefferson had wanted. It was the reasoning, not the result, that was more important in the end. So Marbury versus Madison and the results of it are in a sense part of the Constitution, even though they weren't written into the Constitution. They are part of our unwritten Constitution in a sense. And we have the sense that our Constitution is a written document, which we revere, but there are all sorts of things that have been added to it, both by way of amendment and by way of the extension of its provisions into areas that may not have been envisioned by the framers. Some of that has been good, some of that has not been good.

I leave it up to you to decide where you come down on one issue or another. But we do revisit these things. The Constitution has an organic quality about it. It's susceptible of growth without abandoning its nature, without the addition of things that are not intrinsic to it. So when people talk about the concept of a living Constitution, there's one sense in which it's certainly true the Constitution is a living thing.

But in another sense, its living derives from the roots that is sunk deep into the soil of American life. You don't want to claim for a living Constitution as something that's going to violate those roots, that's going to pull them up and put the entire operation into danger. So that's something that when we think about the sort of extra constitutional character of Marbury versus Madison, yes, it's extra constitutional, but it's like the scaffolding, like the flying buttress that holds up the building. We need it as much as we need the things that are written in the Constitution. And I think these debates over the role of the court are just as current today as they were in the 1790s and early 1800s. Just as they just the way that Jefferson felt for ideological reasons, but also political reasons. The Supreme Court shouldn't have the power to tell me what I can and can't do.

But it's the nature of the system. The Constitution is not a document designed to produce harmony and peace at all times. It's a document that teaches us how to fight, how to fight constructively, how to channel our aggressions into avenues that will result in constructive good and avoid the prospect of civil war or discord. And I think it still plays that role.

I think it can play that role if we will grant to it the power to do so. So when you think about the fractiousness of the politics of our own time, think about the fact that we've been there before, many times. To study the finer things in life, the good things in life, the beautiful things in life, and you can go without going because they have terrific online courses that are available for free. Their Constitution 101 series. I learned more from that class, that online class than I did at three years at the University of Virginia Law School. And what a story being told here. The fight over power and judicial power and Marbury being the most important Supreme Court case ever. And we're still arguing about the power of the courts today.

The story of Marbury v. Madison here on Our American Stories. Allstate wants to remind fans that mayhem is everywhere. Like when the tailgate party shows up at your house after the big win. Everything's great until the hot plate gets too hot for the tablecloth.

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Whisper: medium.en / 2024-03-06 04:14:53 / 2024-03-06 04:22:45 / 8

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