The caption "Power not Justice" comes from an idea I call attention to in class when trying to figure out the meaning of cases, i.e. the legal principle they stand for when properly understood.
A case will start out as a seemingly simple question of basic fairness. President Adams signed a commission appointing William Marbury to a federal job as justice of the peace in Washington, D.C., but the fella' who was supposed to deliver the commission (I hate to mention his name for obvious reasons, but his initials are John Marshall, Secretary of State, who later becomes Chief Justice of the United States and passes on his own little ovesight) forgets to deliver it in the press of business on the last day that Adams remains president.
So Marbury sues to compel delivery of his commission, in the Supreme Court, presided over by Marshall.
Marshall, as Chief Justice, speaking for the Supreme Court of the United States, says, "Yeah, it seems you've got a very good case, here Mr. Marbury, and if it was up to me, I'd order my successor in the Exectutive branch, the Secretary of State, James Madison, whom you are suing, to deliver your commission, just as you request. You're a good man and you deserve it.
There's only one little problem. You filed your lawsuit in the wrong court.
Well, not exactly; I know that the First Congress, in 1789, as one of their first acts, enacted the Judiciary Act of 1789, setting up all the federal courts below ours. But it seems that Congress has made a little mistake, on which you, unfortunately, relied. (Interesting, isn't it, that some of the Framers of the Constitution later, as Congressmen, passed an unconstitutional act? Didn't they KNOW?)
Their Act says you can bring your suit here, before us, right here in the U.S. Supreme Court. But the Constitution says something different. It says that only certain classes of people, such as Ambassadors and Public Ministers, and States themselves, may file a lawsuit first in our court. For everyone else, we can only review APPEALS, and you, Mr. Marbury, aren't appealing. You filed your lawsuit here FIRST, which means you're not asking us to review your matter on appeal. You're asking us to try your case as though we were a trial court. We don't think the Constitution authorizes us to do that. Sorry.
So, President Thomas Jefferson, who instructed his Secretary of State, Madison not to deliver your commission, is going to win this case, sad to say and shame on him. Because we're saying that Congress overstepped its bounds when it wrote that statute. And since the boundary Congress crossed is the Constitution, which is superior to ordinary legislation, the law on which you rely to bring your lawsuit is unconstitutional. It's void. Feel free to start your action anew in a lower court if you wish [Marbury apparently didn't].
Hey! What happened to justice? I thought courts were supposed to do justice. Where's the fairness of the U.S. Supreme Court denying Marbury relief from the wrong he suffered. If the signed commission were only delivered, he'd have his job. Now he doesn't. Marbury was wronged. He wuz robbed!
Right. But the question of right and wrong turns out to be a red-herring in this case. If you focus on that, i.e. the merits, you miss the point of the case. In a lot of Con-law cases a sense of right and wrong is what motivates the bringing of the lawsuit in the first place. But then the issue shifts to something else entirely.
Most of us have no problem underestanding that you have to bring your lawsuit in the proper court, a court that has the power, i.e. is authorized, to hear that kind of suit. You wouldn't expect to obtain a divorce in Traffic Court. Divorces are reserved to Family Court. We have rules. They're supposed to be respected. So if a court doesn't have the power, it doesn't have the power. That's all Marshall was saying as to the merits. Congress was purporting to authorize the Supreme Court to act as a trial court when the Constitution set it up as an appellate court exept for a few dignitaries of whom Mr. Marbury was not one.
The issue was power, not justice. Is that unjust? Not really. Often we challenge the authority of a part of government, such as a court or the legislature or the executive to perform some act. We don't think it unjust to ask, "Hey, wait a sec! What make you think you have the authority to do that? Don't we have a Constitution? And doesn't the Constitution say, in letter or spirit, that what's really supposed to happen is something different, and what you're doing violates that? I think what you're doing is unconstitutional. And if it's unconstitutional, what you're doing is void. And I think that is just. Just as just, in fact, as what you think you're trying to do to me. And so forth.
Before we jump to the merits, we have to look at the underpinnings, the foundational bases that authorize the enabling legislation or the executive's authority. We have to ask "Is this Constitutional?" Meaning, often, is the legislation supporting it (the act) Constitutional? [Watch out for those wild-card words like "it," and "this" or "that." They conceal what you're really trying to talk about, and pretty soon you get lost in the wild.]
So this is where the saying, "It's about power, not justice," comes from. More accurately, it should read, "It's about power, not the merits," because as I've just argued it's not unjust to argue whether a power exists. Maybe I'll change it. Some other day.
It just seems to appear as a surprise when reading a Con-law case and the fight over the merits makes you salivate for a decision on the merits, hoping to see justice prevail on the merits, only to learn that one side wins not on the merits or the equities, but on something that seems somewhat of a technicality, a procedural technicality, such as a principle of constitutional law. One man's technicality is another's constitutional law.
FDR, for example, was trying to save the country from the Depression during the Thirties, only the legislation he promoted kept being struck down by the Court as being somehow in violation of the Constitution. New Deal reform legislation was viewed as violating the rights of manufacturing plant-owners, their liberty rights, to behave as they pleased in setting wages, hours, conditions, etc. Congress, in passing such legislation, was seen as delegating too much unfettered "legislative" discretion to the new Alphabet-soup agencies set up to police industry.
When a case is lost on procedural grounds it is as dead as if it had been lost on the merits. The merits failed to prevail because the Court never reached them. Maybe that's what the Court had in mind, anyway. Maybe the Court ducked the issue.
In the recent Newdow "Under God" case, which unsettled a lot of people who wanted those words included or excluded from the Pledge, the issue on the merits was never reached. The Court found a Con-law ground (standing, and not just any kind of standing, but a newly coined "prudential" standing; the Court had to invent something new in order to punt) to avoid deciding an issue they wouldn't have been thanked for deciding no matter which way they ruled.
If the justices found for Newdow, they'd have been wrong politically. If they found against him they'd have been wrong legally. Time to punt. Come back to it when there's national consensus one way or the other. Don't expect consensus any time soon, although you may see Mr. Newdow knocking on the door of the Court again. Don't expect to see it opened very readily.
Con-law is the practice of looking into the Nation's foundations, its electrical, plumbing, communications and other systems. Before you get to enjoy living upstairs in the home, the systems have to be checked. Sometimes, as Marbury and Newdow learned, the foundation has become, or may become, leaky and needs to be patched.
The Supreme Court is in the business of maintaining and repairing leaks in the foundation, when necessary. It's not always necessary. Sometimes the requested repair is likely to cost more and do more damage to edifice and the folks living upstairs than provide a lasting benefit. Let's leave bad enough alone, the Court sometimes seems to say.
Because when the Court barges in where angels fear to tread, where there's no consensus in the Nation, what happens? Dred Scott is the big example of throwing kerosene on the fire, justifying slavery, and exploding shortly into a huge Civil War.
Peaceful evolution is better than violent revolution, I suppose, in most cases. Were I living in 1776 I'd like to think I'd be a revolutionary, wouldn't you? Peace-loving folks that we are these days, we might've been Tories. What do you think of that?
Suppose you were a slave? Violent revolution would be okay, then, right? If only you could pull it off. But you can't. You're a slave. You can't read. You can't write. You have no money. You can't organize. You're patrolled, policed, and beaten. You have people you don't want to jeopardize, like family and friends. You're stuck. You remain a slave, just as those millions did, in our own Holocaust, the other one, after the Indians.
How come, I wonder, we have, in our nation's capital, a museum commemorating and teaching the lessons of the Holocaust committed by Germany. And last week an American Indian Museum opened on the Mall in Washington, D.C. Where's our national museum to slavery, Jim Crow, and racism in general? Don't we have any lessons to learn? Maybe it's too soon. Maybe we'd be embarrassed. Maybe we'd have to do something about it. Maybe it would cost a lot of money. Maybe we shouldn't lift that rock. Maybe I'm looking in the wrong place. Maybe it's in Berlin!
As you can see, the study of Con-law can be thought provoking...
Seeya.
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