The most common story is that the Liberty Bell cracked July 8, 1835, while being rung at the funeral of Chief Justice John Marshall, perhaps as a portent. John Marshall, the longest-serving Chief Justice, began the trend of increasing the Supreme Court’s power by using an expansive reading of the enumerated powers, thereby advancing the view of the supremacy of the Supreme Court through “judicial review.”
Thomas Jefferson had warned Mr. Hammond, 1821: “The germ of dissolution of our federal government is in … the federal judiciary … working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the states.”
Webster’s 1828 Dictionary defined “usurp” as: “Usurp, verb transitive s as z. [Latin usurpo.]
To seize and hold in possession by force or without right; as, to usurp a throne; to usurp the prerogatives of the crown; to usurp power. To usurp the right of a patron, is to oust or dispossess him. Vice sometimes usurps the place of virtue.”
Thomas Jefferson explained to Supreme Court Justice William Johnson, June 12, 1823:
“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
James Madison wrote to Henry Lee, June 25, 1824:
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable … exercise of its powers. … What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.”
Alexander Hamilton, in Federalist No. 78, said the following:
A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
Juxtapose that with this quote from Chief Justice John Marshall in Marbury v. Madison, 1803:
“It is emphatically the province and duty of the judicial department to say what the law is.”
In the Garden of Eden as chronicled in the Bible, three sins caused Adam and Eve to fall, thus dooming all mankind. They are cited in Genesis 3:6: lust of the flesh (“And the woman saw that the tree was good for food”), lust of the eye (“and it was pleasant to the eyes”), pride of life (“and a tree to be desired to make one wise”).
Fast forward to 1803, fourteen years after the establishment of the U.S. Constitution, and the first pivotal case by a young U.S. Supreme Court called Marbury v. Madison – a landmark case in United States law and in the history of law worldwide. It formed the foundation for the exercise of judicial review in the United States under Article III of the Constitution. This was the first time in Western history a court invalidated a law by declaring it “unconstitutional” without a demonstration that a particular statue conflicted with the language of state constitutions or federal law.
In Marbury v. Madison we witnesses the greatest power grab in the history of our republic, above even FDR’s “New Deal” and LBJ’s “Great Society,” where the majority opinion written by America’s second chief justice of the Supreme Court, John Marshall, forever expanded the court’s power beyond the bounds of the Constitution by infusing it with godlike power and authority of “judicial review.” In other words, from that point forward in our American constitutional history, a majority of five or more members of this formerly weakest branch of government could invalidate any law passed by Congress and by the state legislatures in any or all of the 50 states it decided was unconstitutional simply because a majority of members on the court didn’t like said law – We the People be damned! From that moment onward, the separation-of-powers doctrine became perverted as the court repeatedly usurped unbounded constitutional powers not accorded by the constitutional framers.
Lord Acton answered such unbridled power in a famous aphorism, “Power corrupts, but absolute power corrupts absolutely.”
Seventeen years after the Marbury v. Madison case, in an 1820 letter by Thomas Jefferson to his friend, William C. Jarvis, one can still see the havoc Chief Justice Marshall caused to the Constitution and against America:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction]. … The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.
An interesting historical connection exists between Marbury v. Madison and the Obamacare cases regarding conflict of interest: President Adams ordered John Marshall to deliver the judicial commissions the day before Jefferson took power (March 4, 1801); however, Marshall was both a recently appointed chief justice of the United States and continued as the acting secretary of state.
Likewise, Elena Kagan, who as solicitor general acted on behalf of the Obama administration in multiple federal appeals courts, this week showed up to hear the arguments and stubbornly refused to recuse herself from judging the Obamacare cases, even though she had cheered enactment of the law as an Obama political appointee and had personally assigned her top deputy in the Obama Justice Department to defend the law in federal court.
A federal law, 28 USC 455, says a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”
Here is the conclusion of the matter. Either the Progressive Revolution will prevail or the U.S. Constitution will prevail, but they can no longer coexist. Universal anything is essentially outside the parameters of legitimate constitutional jurisprudence, but within the realm of a dictatorial Marxist or Nazi state.