BY MIKE MAGEE
As we enter a new and potentially historic week, with a former President doing his best to reignite a Civil War in our nation, we do well to take a breath and reread James Madison’s words from Federalist No. 51. But first, a few words of history.
When it came to checks and balances in this new national experiment in self governance, the Founders, while establishing three co-equal branches, left one of those branches the task of defining by practice its own power and influence.
The new Constitution in 1787 awarded one branch, the elected Congress, the daunting power to impeach, convict and remove representatives or appointed federal officials for due cause up to the President himself. But it also empowered a second branch, the Executive, through its President, veto power to check legislative excesses and the privilege of initiating appointments to the federal judiciary. Only the third branch of the government, the Judiciary, was left deliberately “elastic,” destined to grow into “the triangle of power.”
Thirteen years later, on February 17, 1801, Congress was forced to break a tie in the Electoral College vote, resolving a Constitutional crisis and declaring a victor in one of “the most acrimonious presidential campaigns” in U.S. history. Thomas Jefferson was awarded the victory, and John Adams acquiesced and was sent packing a month later. But two days before he departed, Adams unloaded multiple appointments of circuit justices and justices of the peace which the U.S. Senate quickly confirmed on March 3rd. In the rush, Adam’s Secretary of State, John Marshall (soon to become Chief Justice Marshall of the Supreme Court under President Jefferson) didn’t have time to complete a final necessary step, delivering the commissions, to some of the appointees.
When Jefferson took office on March 4th, and saw the opportunity to block some judgeships on the technicality, he instructed his new Secretary of State, James Madison, to not deliver the commissions. One of those prospective new judges, a Maryland businessman, William Marbury, after trying to unlock his commission for several months, filed a lawsuit in December, 1801 demanding that his commission be delivered through a “writ of mandamus.” ( “an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.”)
Eventually the case came to the Supreme Court and John Marshall delivered the unanimous verdict on February 24, 1803 in Marbury v. Madison.
In short, William Marbury did not get his judgeship, but not because he didn’t deserve it. He did, and the decision said as much. But the Court also recognized that the authority that Section 13 of the Judiciary Act of 1789 had granted the Court to issue “writs of mandamus” (and effectively force Secretary of State Madison to deliver the appointment) was unconstitutional.
This was because Article III of the U.S. Constitution (signed September 17, 1787) made clear that the Supreme Court had “original jurisdiction over cases only where a U.S. state is party to the lawsuit.” As legal experts have explained: While the decision “limited federal court’s jurisdiction, it cemented the Court’s status as the ultimate interpreter of the Constitution.”
William Marbury’s loss became our nation’s gain. Our third branch of government, in finding its voice, defined its own powers. As Justice Marshall wrote “It is emphatically the province and duty of the Judicial Department to say what the law is…a Law repugnant to the Constitution is void.” As law historian Lawrence Friedman wrote, “Here for the first time John Marshall in the U.S. Supreme Court dared to declare an act of Congress to be unconstitutional.”
Donald Trump, for a time, sat himself in the middle of America’s triangle of power. From his seat as President, he installed himself as “a Golden Idol” and had a commanding view of the Executive branch of government. By aligning with the Federalist Society, the Christian Right and Mitch McConnell, he was able to stack the Judiciary and deliver a promised reversal of Roe v. Wade. But that federal overreach, which included rejecting 50 years of precedent and compromising women’s freedom and autonomy over their own bodies, fueled a resounding 2020 Trump defeat and Republican statewide under-performance in the 2022 Mid-term elections.
It also triggered a first ever President-led armed insurrection on January 6, 2021. But in a real-life “Democracy stress test,” this may be the moment when our three branches of government finally deliver a message to all Americans that no man is above the law.
First, our citizenry pried the Executive branch free of Trump in 2020.
Second, our Judiciary, including state and federal courts, have rejected nearly 100 bogus cases led by unethical lawyers on Trump’s behalf, and are nearing multiple indictments of a now, unprotected and disgraced former President.
Third, a Republican led Congress has been forced to privately cooperate on real issues, while publicly feigning continued fealty to Trump and a small band of Trump look-alike’s intent on driving their party over the cliff.
So what did James Madison, author of Federalist No. 51, have to say about all this?
On February 8, 1788, he wrote: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In forming a government which is to be administered by men over men, the great difficulty lies in this: you must first enable government to control the governed; and in the next place oblige it to control itself.”
Trump is a stress test, and our nation is rising to the challenge. We are gradually, slowly and painfully, learning to “control ourselves” by enforcing our laws. Democracy is a work in progress.
Mike Magee MD is a Medical Historian and author of CODE BLUE: Inside the Medical-Industrial Complex.