Somewhat lost in the frenetic pace of the past weekend with regard to the school funding issue were the comments of Republican Representative Randy Garber of Sabetha, where he asserted that the case of Marbury v. Madison which established judicial review in modern American jurisprudence, may have been decided due to political motivation by then Chief Justice John Marshall and by extension of his argument, thus the concept could be arguable.
Judicial review is the concept that it is the job of judges to determine whether an action by either the legislative or the executive branches of government is in keeping with the law of the land.
“That idea of judicial review is baked in to the American judicial system,” said Lumen “Lou” Mulligan, Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas. “It’s at least as old as 1604, 1605, if you go back to the, then English, not even British yet, then English judicial system, in the so-called five knights cases and the card monopoly cases, where you have English courts striking down actions of then Queen Elizabeth I as contrary to the law of the land.”
In addition, several colonies employed judicial review prior to the establishment of the United States.
“The drafters of the United States Constitution intended, directly, that there would be judicial review,” said Mulligan. “If you were to look at the Federalist Papers, which is the collection of debates, written debates, during the ratification period. This is the period after the people had drafted the Constitution and the states were approving it. In Federalist Paper No. 78, which is written by Alexander Hamilton, he directly discusses judicial review and says, that’s what we have in the Constitution. That’s your protection against an overreaching Congress.”
It’s not as if Garber is the first to think that the courts may be overstepping their bounds. Several executives have believed so, as well, from Thomas Jefferson to George W. Bush.
“The will of the people controls,” said Mulligan. “The courts really can’t force anything, they only have really, at the end of the day, moral authority. Chief Justice John Marshall, if we were to go back in time, wrote an opinion holding that the Federal government could not take Native Americans off of their traditional homeland, out of Georgia and move them west of the Mississippi River.”
Ultimately, the moving of the Cherokee did happen a few years later.
Nearly 100 years later, the executive at that time, President Dwight D. Eisenhower, took the opposite tack when it came to enforcing the Brown v. Board of Education decision.
“It’s only when President Eisenhower orders out the Airborne, that we see that enforced,” said Mulligan. “The courts can’t do it by themselves.”
The question now is, what do the people of Kansas want? The legislature may get an opportunity to find out, depending on how the decision with regard to school funding goes.