Marshall bests Jefferson

Under the big tent of Chautauqua at Rancho San Rafael Park recently, incarnations of two giants of American history debated judical review and the power of the Supreme Court to strike down unconstitutional laws.
Judicial review is hardly a hot-button issue like abortion, gay marriage and stem cell research. But it was good theater, an entertaining and informative evening.
Washoe District Judge Brent Adams portrayed John Marshall, great Chief Justice of the United States (1801-1835). Clay Jenkinson portrayed Thomas Jefferson (1743-1826), one of the great intellects of American history.
Judge Adams won the debate. Historically, Marshall has long since won. Jefferson’s faith in the people was misguided in his time. Today? It is downright foolish.
The masses are what Mencken called Boobus Americanus. They have the perfect president in Bush: crude, coarse, cowboyish, still an ignorant frat boy at 60 and a worldwide disgrace.
“So few, so much power over so many,” Jenkinson-Jefferson argued. “If the people are truly sovereign and they express their will through representatives freely chosen at frequent intervals, why should appointees serving for life be able to trump that will?”
J-J added: “The people are right even when they are wrong.”
Yes, five unelected people on the Supreme Court can determine the law of the land for 300 million people. But judicial review is essential even when the decisions are woefully wrong as they were in Dred Scott (1857) and Bush v. Gore (2000).
In the misbegotten Dred Scott case, slaves were ruled not to be U.S. citizens and therefore could not sue in federal court. Moreover, slaves were deemed property protected by the Constitution. In the misbegotten Bush case, five right-wing Republican justices sealed the theft of the presidency.
Then there were the Four Horsemen of Reaction in the 1930s who consistently voted to strike down New Deal legislation.
Nevertheless, judicial review is absolutely necessary to strike down unconstitutional laws of Congress, state statutes and city ordinances. It prevents the tyranny of the majority, measures enacted by lawmakers pandering to voters.
Judicial review is not in the Constitution. The iron-willed Marshall put it there. He had the writing of Alexander Hamilton, the high priest of Federalism, to back him up. Hamilton argued brilliantly in No. 78 (1788) of “The Federalist Papers,” a debater’s handbook for adoption of the Constitution.
Using the classical penname, Publius, Hamiliton wrote: courts must “declare all acts contrary to the manifest tenor of the Constitution void...The interpretation of the laws is the proper and peculiar province of the courts.”
Yes, Supreme Court justices are unelected, unaccountable and virtually unimpeachable, But they were not and are not the tyrants that Jenkinson-Jefferson said they were.
Yes, judicial review is troublesome, giving the Supreme Court the power to override the democratric will. Jefferson, a strong republican, found this intolerable. But he was wrong.
Without judicial review we would not have desegregated schools. We would not have the constitutional right to burn the flag. We would not have prayer barred from public schools. We would not have outlawed compulsory flag salutes in public schools. We would not have anti-sodomy statutes barred. We would not have a contraceptive ban struck down. We would not have legal abortion.
Marshall’s opinion in Marbury v. Madison (1803) was masterful, establishing the Hamiltonian right to rule on the constitutionality of laws. Jean Edward Smith, Marshall biographer, hailed the opinion as “one of the great constitutional documents of American history.”
“The magisterial character of his great opinions has never been equaled,” Smith wrote. “Clear, concise and eloquent, they are in many ways a rarity: legal documents that can be read and understood by the ordinary citizen.”
But Marshall was not the greatest chief justice. Earl Warren was. Marshall ruled for property. Warren ruled for people. The difference is vast in a country where money and property rule. Adam Smith, the prophet of capitalism, spoke of “life, liberty and the pursuit of property.” Jefferson’s Declaration of Independence changed that phrase to the more humane “life, liberty and the pursuit of happiness.”
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Reno Chautauquans also saw Charles Pace execute a marvelous tour de force playing both the conservative Booker T. Washington and the radical Malcolm X.
Pace, an American Studies instructor at Centre College in Danville, Ky., made clear Washington’s legacy: the founding of Tuskegee University of Alabama in 1881. He also extolled “The Autobiography of Malcolm X” as the American classic it is.
Both men were crucial to their eras. Washington, like M.L. King in the civil rights movement, helped whites think well of blacks. Malcolm X was even more important psychologically: he helped blacks think well of themselves.