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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
THANK YOU FOR YOUR GRACIOUS
SUPPORT!
- CONTACT DATA
- Telephone
- (850) 225-7228
- Postal address
- 265 Country Club Rd., Shalimar, FL 32579
- Electronic mail
- E-Mail: dr.Escoffery@SenateBill.US
- WEB-SITE: http://www.senateBill.us/
- Webmaster: dr.Escoffery@SenateBill.US
WILLIAM ESCOFFERY III,
Candidate, U.S. SENATE, FL
2010
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