Part 2 POWER IS NOT LEGITIMACY

The Supreme Court of the United States has imposed its judgment upon our land that the Constitution of the United States of America contains a right to homosexual-marriage.  Events have shown that the Court has the power to impose such a judgment as it is now the operative law of the land. 

This fact does not speak to whether or not the Court has the legitimate power to impose this judgment. That is, nowhere in the Constitution is the Supreme Court granted the power to impose such a judgment upon We the People.  The question then arises, what is the source of such power that the Supreme Court can rewrite the Constitution of the United States, rewrite the constitutions of various states, negate the Constitutional power of the Congress and override the will of the people?

Could Isaiah 5:20 be a warning to our nation when it says, “Woe to those who call evil good, and good evil; Who put darkness for light, and light for darkness; Who put bitter for sweet, and sweet for bitter!”

The Supreme Court first claimed the power to declare laws duly adopted under the Constitution to be unconstitutional in the case of Marbury v. Madison,[1] way back in 1803, more than 200 years ago. Marbury brought an action before the Supreme Court requesting that it order the Secretary of State, James Madison, to perform his statutory duty. Such an order is called a writ of mandamus as it is an order, others wise called a writ that requires or mandates a government official due his duty.  The duty in this case was to affix the Seal of the United States of America to the document appointing Marbury as a justice of the peace for the District of Columbia.  The position was highly valued as it was both prestigious and well compensated.

The Court first found that Marbury was entitled to the relief he requested, that is, the Secretary of State was legally bound to affix the seal and deliver the document as Marbury requested.

The Marbury Court, however, refused to issue a writ of mandamus directing the Secretary of State to perform his statutory duties.  The Marbury Court cleverly ruled that the statute granting it jurisdiction to issue such orders was not valid under the Constitution.  The Court affected humility in declining to issue an order under a law which it ostensibly considered to be unconstitutional.  The cleverness of the Court creates the appearance of humility in declining to expand its jurisdiction to the Marbury case, when in fact the Supreme Court rewrites the Constitution by expanding its jurisdiction and powers to the limits of infinity.

Marbury brought his action in the Supreme Court pursuant to a law enacted by Congress and signed by the President.  The Marbury Court’s pretext for its self-serving power grab began by stating the self-evident truth:

“The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, this constitution is written.”[2]

 

The Marbury Court, though, did not recognize such limits upon its powers.  This is when they started replacing darkness for light, and light for darkness. In James 3:15 is paraphrased; “Self-serving is not God’s kind of wisdom. Such things are earthly, unspiritual, inspired by darkness.”

           The Court began its analysis with Article III of the Constitution which establishes the judicial branch.  Section 1 provides:

The judicial Power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.

 

The Court then correctly interpreted the Constitution of the United States of America, Article III, Section 1 to grant the judicial power of the United States in the Supreme Court, and such inferior courts as Congress may authorize.

Next, the Court considered Section 2 of Article III, which reads:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

 

The first sentence of Section 2 means that in cases involving certain parties, such as Ambassadors or states of the United States, that the Supreme Court would have original jurisdiction.  This means that the Supreme Court would be the court where the original complaint or petition was filed and that the Supreme Court would sit as the trail court in such cases.

The second sentence of Section 2 means that in those cases where a party is not a listed party such as an Ambassador, the Supreme Court functions as an appellate court. An appellate court reviews the written record of the case after it is adjudicated by the original or trial court, and renders its decision based upon the written record.

The Marbury Court reasoned that if it accepted jurisdiction under Section 1, which is a general grant of jurisdiction, such a reading would vitiate Section 2, which more specifically limits the Court’s jurisdiction to that of an appellate court.  Boldly, the Court declared that it would not erase language in the Constitution, it refused to accept jurisdiction under a law it considered to be unconstitutional, and it would preserve the Constitution by declaring such law unconstitutional!

The Marbury decision was a power grab of epic proportions.  Under the historic laws of adjudication, that is the laws which govern the method by which courts reach their decisions, courts do not have the power to make rulings upon issues which are not before them.  For instance, the Marbury Court did not have jurisdiction to issue a ruling upon the scope of duties of a justice of the peace, because that issue was not before the court.  Likewise, the constitutionality of the law under which Marbury brought his action was not squarely before the Court.

The Marbury Court had several options which it could have chosen, rather than declaring the statute to be unconstitutional.  First, under Section 1, all judicial power is vested in the Supreme Court. And, such inferior courts as Congress create.  In this case, Congress did not establish any inferior court with jurisdiction over writs of mandamus, but did specifically left jurisdiction of such cases with the Supreme Court.  Since the case does not involve a listed party, Section 2 does not come into play.  Under such an analysis, to invoke Section 2, when no designated party is involved, would be to erase Article III, Section 1, which is the evil the Marbury Court rails against.

Second, the Marbury Court could have incorporated the entirety of Section 2 into its opinion.  The second sentence of Section 2, with my bolding, reads:

In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

 

The Marbury Court completely ignores the bold language above, which authorizes Congress to make exceptions to and regulate the Supreme Court’s jurisdiction! The Marbury Court had to ignore this language to make its power grab.  The Marbury Court vitiated or erased this clause of the Constitution, the very evil it railed against!

Additionally, there are structural Constitutional considerations which affirmatively denying the Supreme Court the power to declare laws to be unconstitutional, but that analysis will have to wait for another day. 

Today, we have already shown that the Supreme Court is an unrepentant usurper of power.  As such, the Marbury Court ignored the teaching of Philippians 2:5, “Do nothing out of selfish ambition or vane conceit, but in humility consider others better than yourselves,”[3] and so, over 200 years later, we suffer the consequences.

 



[1] Marbury v. Madison, 1 Cranch 137, 1803.

[2] Marbury v. Madison, 1 Cranch 176, 1803.

[3] The Holy Bible, New International Version, 1984.