Where’s the Judicial Chutzpah?

Posted By on August 6, 2010

This country’s political system was established with the principle of “checks and balances” built within it. According to the Founding Fathers each of the three branches of government were supposed to check the others. You have the power of Presidential vetoes of Legislative acts and Congressional overrides of those vetoes. It was also intended that the States would have the power of Constitutional review of federal laws and actions. But how is the Judiciary supposed to be checked and balanced? This was the greatest fear and concern of the founding generation. It didn’t take long for this fear to become manifest in the fledgling government.

Congress first attempted to impeach a sitting Supreme Court Justice in 1804 “for partisan attacks from the bench. This was a ‘high crime and misdemeanor’ under the traditional definition, and the Republicans hoped … they could overturn ‘judicial review’ and any other doubtful Federalist court decisions and mute activist judges.”1 The Senate failed to remove the Justice from office, and as a result Chief Justice John Marshall began to exact his revenge. Since that time it has been almost impossible to check the activist Supreme Court, because the Congress just doesn’t have the guts to do it, AND because – for the most part – the Court has favored a policy of stronger central government; just what those in power desire.

The majority of succeding Supreme Court rulings have all found some of their basis within three of the rulings handed down by the schmuck Marshall. It is interesting to note that in these three decisions Marshall should have recused himself due to conflicts of interest. His lack of principle, and self-interest in these decisions amount to nothing short of malfeasance, and if any modern judge had even a modicum of integrity, these rulings would be vacated and become mute within the halls of the American governemntal system and provide a much needed check against the extremely activist Supreme Court and Federal Court system.

The first decision in question is Marbury v. Madison. In this decision Marshall had a personal interest caused by his laziness and inaction. Due to his personal interest he should have recused himself, but didn’t. This decision led to the principle of “judicial review” of legislation, something never intended by the framers of the Constitution, and in fact warned against by Federalists and Anti-Federalists alike. At the time of this decision the Supreme Court was comprised of 6 justices, and only 4 voted in this matter. The other two could not vote because they had missed oral arguments due to illness. But if Marshall had recused himself there would have been no quorum, and thus no decision. Fate, or political intrigue?

The next decision was in the case of Fletcher v. Peck a case involving a Georgia state law and the authority of a State to repudiate its contracts. This established federal power over state laws, and again was decided by a mere quorum. Marshall, once again, should have recused himself because he had a pending interest in a similar case in Virginia which was impacted by the decision. As a result, Marshall realized a profit from this ruling.  Thus, even with a conflict of interest, Marshall ruled in a manner which affected him personally.

The third decision which I will discuss is that of McCulloch v. Maryland where the decision was based solely on the position of Hamiltonian interpretation of the Constitution which Marshall had come to support. This was a definite political decision, but by this time no one in Congress had the chutzpah to stand against these usurpations and unConstitutional enlargments of Supreme Court power.

It is time we find someone who will stand for truth, principle and integrity on the bench. Someone who will make a valid legal stand and vacate at least Marbury v. Madison and Fletcher v. Peck. This will throw into question every Supreme Court decision which has cited these as precedents. This will do wonders to assist in the reestablishment of true Constitutional government, and valid “checks and balances” within the federal government.

Not only must these decisions be vacated, but John Marshall must be impeached for malfeasance while in office in abstentia. If we can vindicate individuals years after their death for improper rulings, convictions, etc; then why can’t we in turn convict an individual based on solid historical facts? John Marshall was a schmuck, and deserves to be properly identified as such through an impeachment, and conviction for his improper and criminal actions while in office.

Do you know of any judge, or attorney who might just be gutsy enough to pursue this?


1 The Politically Incorrect Guide to the Founding Fathers, Brion McClanahan, Regnery Publishing, Inc., 2009, p. 280

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One Response to “Where’s the Judicial Chutzpah?”

  1. royws says:

    Most of the answers can be found in Thomas Dilorenzo’s 2008 book “Hamilton’s Curse” and Judge Napolitano’s “Exile”

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