The end of Marbury v. Madison (as we know it)


The End of Marbury v. Madison (as we know it)

“There’s nothing to hold on to, when gravity fails you and every kiss enslaves you…” Graham Parker


Does President Trump have to divest his assets? Is he subject to the emoluments clause? Does he have to disclose his tax returns? If you answered yes to any of these questions I think you are in for a rude awakening.

Ask most Americans which branch has the ultimate power to interpret the Constitution and they will answer that it is the Judicial Branch. Some will even suggest that the issue was settled by Chief Justice John Marshall in the case of Marbury v. Madison decided in 1800. Well, if that was my answer on my Constitutional Law exam, I think Professor Schwartz would have given me partial credit. Maybe a C.

First, as I am wont to do, I will point out that Marbury v. Madison was decided by a slaveholder (Marshall) for the benefit of slaveholders (President Jefferson and his Secretary of State James Madison). In the waning days of his administration, President John Adams tried to appoint officials to various positions including William Marbury as a Justice of the Peace in Washington DC. The fact that slavery was permitted steps away from the corridors of power in Washington was considered a blight on the government by the fledgling antislavery movement. Presumably, a Justice of the Peace who had no allegiance to slaveholders could have curtailed that great injustice. Slaveholders resisted the appointments. Through some mumbo jumbo, Chief Justice Marshall ruled in favor of the slaveholders and denied the commission to William Marbury, allowing Jefferson and Madison to appoint their own Justice of the Peace, presumably one who would agree with their political ends. The idea of judicial review was born here, in the decision by Marshall. It was a byproduct of the decision; the end justifying a means.

The Constitution sets up three branches of government. It spells out the relationship between the branches. The President appoints the Supreme Court justices with the advise and consent of the Senate. The Congress can impeach the President. etc. Nowhere in the Constitution does it provide that the Supreme Court is the final arbiter in disputes between the branches or as to the “constitutionality” of a piece of legislation or executive action. Depending on your viewpoint it is either ultimately logical or totally illogical that the branch that is furthest away from the direct selection by the People has this ultimate power. In any event, I suggest that Marbury v. Madison and judicial review is not the settled law that many think it is. Perhaps it was just a self-serving power grab by one branch, subject to resistance by another.

So now President Trump faces a lawsuit which argues that he must divest his business holdings or he is in violation of the emoluments clause of the Constitution. It seems logical that as part of that lawsuit he will again be requested to turn over his tax returns. So what happens if he loses the case and then just says NO.

Such a response is not out of the question for this president. He can point to the Constitution and ask where it says that the Supreme Court has power over the executive branch. He can assert that the People have the ultimate power and the People elected him to do the job and don’t care about his business holdings. He can suggest that if Congress or the People don’t like him, their recourse is to impeach him. Despite musings to the contrary, this viewpoint is not without merit. Had I answered same to Professor Schwartz, I think I would have gotten an A.

As we ride through untested waters, I suggest that in a world where nothing is sacred, Marbury v. Madison may be the next ball to drop.