By Douglas V. Gibbs

Author, Speaker, Instructor, Radio Host

When John Adams lost the 1800
Presidential Election, the Federalist Party also lost both Houses of Congress
to the Jeffersonian Republicans. 
Determined not to lose all power in government, the Federalist Party
decided to grab what they could in the judicial branch.  Thomas Jefferson, in 1801, wrote to Joel
Barlow regarding the appointment of the Midnight
, “The principal [leaders of the political opposition] have retreated
into the judiciary as a stronghold, the tenure of which renders it difficult to
dislodge them.”


William Marbury was one of
the many inferior court judges to be nominated and confirmed by the U.S. Senate
during the waning days of the John Adams presidency.  However, outgoing President John Adams’
Secretary of State was unable to issue all of the commissions prior to
Jefferson’s inauguration day.  The new
Secretary of State, James Madison, refused to deliver the left-over commissions
after President Jefferson told him not to, the latter labeling them illegal,
null, and void.  Marbury sued Madison to
obtain his commission and the case eventually worked its way up to the United
States Supreme Court.


The Secretary of State under
John Adams also became one of the midnight judges, appointed to Chief Justice
of the United States Supreme Court just prior to Jefferson taking office.  As a result, Chief Justice John Marshall
presided over the Marbury v. Madison case that arrived in front of the
Supreme Court in 1803.  In his judicial
opinion regarding the case, after Marbury’s victory, Marshall used language
that has been interpreted as establishing the principle of judicial review, a
concept that basically allows the courts to check Congress and the Executive
with the ultimate power of striking down or modifying legislation and executive
orders offered by either of the other two branches of government.  Eventually, the power of judicial review was
expanded to include the ability to strike down State laws, actions, and
judicial rulings, as well. 


Chief Justice Marshall wrote,
“A Law repugnant to the Constitution is void.”  Those words declared that the courts could
strike down as unconstitutional a law passed by Congress and signed by the
President.  While there is nothing in the
Constitution giving the Court this specific power, Marshall believed that the
Supreme Court should have a role equal to those of the other two branches of
government.  The judicial branch was
originally intended to be the weakest of the three branches, with only an
authority to apply existing law to the cases they hear.  Any review of the law could only be addressed
through a written judicial opinion directed to the legislature, with the
Congress still holding the authority on whether or not to repeal the law in question.


When James Madison, Alexander
Hamilton, and John Jay wrote a defense of the Constitution in The
, a series of essays to the State of New York to convince the
State whose leaders were largely in agreement with the Anti-Federalists to
ratify the new Constitution, they explained that the new general government contained
built-in restraints.  The branches may
only operate based on authorities granted expressly in the Constitution.  The concept that the federal government’s
authorities only exist if they are expressly enumerated in the Constitution has
become known as the “enumeration doctrine,” but the concept is only accepted
among constitutionalists who believe in “original intent,” and is frankly not
accepted as legitimate by the mainstream political class, or judiciary.


While the strongest of the
three branches was originally intended to be the Congress, which could override
vetoes, override unconstitutional rulings or judicial opinions, and impeach and
remove officials, including judges or the President himself, over the last two
centuries the hierarchy has been flipped. 
The original role of the federal courts, including the Supreme Court,
was originally a minor one, one that was unacceptable to a strong-minded
nationalist like Chief Justice Marshall. 
With his establishment of judicial review, the courts have risen to the
top of the food chain in the American political system, with the self-enshrined
role of the Supreme Court to invalidate Federal and state laws that are
contrary to the Constitution never experiencing any serious challenge.


Combined with the Hamiltonian
concepts of implied powers and an “elastic” view of the Necessary and Proper
Clause, the progressive left has re-written the Constitution by simply
interpreting it in a manner that pleases them, and forwards their
narratives.  “The Constitution of the
United States,” said celebrated hard-left Democrat Woodrow Wilson, “was not
made to fit us like a strait jacket. In its elasticity lies its chief


According to the American
liberal-left the Constitution is a living and breathing document that is not
specific enough in its language, giving them the opportunity to view the
document as being a set of guidelines that can be bent and twisted as they desire.


The Marshall decision and
judicial opinion regarding the Marbury v. Madison case in 1803
completed the leftwing’s early assault on the American system of checks and
balances, providing a check by the courts that was never intended, and never
authorized by the Constitution of the United States.  The power of the federal government, from
that moment, grew not only in size and scope, but inward against the interior
of the States and against the role of the States as a major check against
federal overreach.  Thanks to Marshall’s
insertion of judicial review into Marbury
v. Madison
, the federal government freely enacts, interprets, and usurps as
it pleases, free from any challenges by constitutionally minded forces of
opposition.  Whether those patriots who
support the rule of law like it or not, the tyrants have control over any
interpretation of the document.  What
that means is that with judicial review in place the progressive left can
pretty much do as they please without any worry of the judiciary acting as an
arm of opposition, and without the worry that any other forces can penetrate
their wall of leftist judges to stop any unconstitutional activities by
progressive infiltrators who are, at this point, deeply embedded into the
political structure of the American System.

In the end the reality is the only way to restore
the system back to its original form is for the States to take action without
utilizing the judiciary.
  Such State
tactics may include, but would not be limited to, Republic Review, Article V.
Convention, Nullification, and zeroing in on mechanisms that have moved us away
from being a republic (such as the 1964 Supreme Court case,
Reynolds v. Simms).

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