Momentous Monday: Marbury vs. Madison

Two hundred and seventeen years ago today, the U.S. Supreme Court made a very important decision, one that has resonated on down through the years, and one that is more important now than ever.

Basically, a little incoming executive fuckery attempted to block an approved appointment by the outgoing administration… or did it? Because the outgoing administration wasn’t so innocent either, and to top it off, the Supreme Court Justice who ruled in the case, John Marshall, had been Secretary of State to the President who was trying to pack the courts with justices favorable to his side in the last days before he had to turn over the reins to Thomas Jefferson.

Side note: For all of you Founders fans, read up a bit, and you’ll realize that if you’re progressive, then you’re on the side of Adams, not Jefferson.

Anyway, beyond the politics of all of the above, two things are notable. One is that Marshall actually ignored the fact that he was voting against his guy (Adams) in this case and voted for what was right. Second is that this case forever enshrined the idea that the Supreme Court could absolutely decide whether a law passed by Congress was Constitutional.

Hello, checks and balances, everyone.

But it seems to have passed out of fashion to understand this simple fact. Our Constitution set up three branches of government for one simple purpose: So that no one of them would become too powerful. That’s what checks and balances means.

The three branches are as follows:

Legislative, meaning both houses of Congress, whose job is to make laws.

Executive, meaning the President and Cabinet, and their job is to figure out how to enact the laws passed by the Legislature, or to say “Nope. We’re not passing that law.” (To which the Legislature, with a two thirds majority, can say, “Nu-uh, it’s passed. Suck it!)

Judicial, meaning the Supreme Court, and they get to decide whether a law follows the Constitution or not.

Oh yeah. All three branches are constrained by the Constitution. At least in theory. And getting back to the Legislative, there are two houses of Congress, which makes it wonky: The Senate and the House or Representatives.

These came out of what you can basically call White Privilege, i.e., “We really can only trust rich, old, white, land-owning dudes over 21 to do what’s best (for rich, old, white, land-owning dudes over 21), so the system was stacked from the top. The Reps in the house are based on the population of states, meaning that in the modern day places like California, Texas, and New York have the most Reps. However, the Senate is based on state, as in every state gets the same two Senators, so that California, with nearly 40 million people, gets the same number of Senators as Wyoming, with just over half a million people, and that is utter bullshit. Of course, this is the same nonsense that gave us the Electoral College, which really needs to be banished as well.

To keep it fair, we really need to banish the Senate, reapportion Congress based on an honest 2020 Census, and pack the Supreme Court to at least 17 Justices. Maybe even consider the concept of having two or more of those positions elected by the people instead of appointed by the President, and with the power of recall endowed, again, with the people..

Oh yeah. Because that’s the really big part that the whole “Systems of Checks and Balances” things ignores. The fourth branch of government.

Who is it? You may ask. Simple. It’s us. We the people, and our power to vote. We can’t do shit about the Supreme Court (yet, but see above), otherwise, the President and Congress are in our hands.

The Supreme Court Justice you may or may not have heard of, and who was equal parts hero and dick.