A 200-year-old court ruling truly made us what we are

March 09, 2003|By GREGORY KANE

THE YEAR 2003 marks the 200th anniversary of the Supreme Court decision in Marbury vs. Madison. So let's whoop it up and celebrate.

What's that? What's Marbury vs. Madison, and why should we care? If Samuel L. Banks, my City College history teacher, were around, he'd simply give us all a look of equal parts bewilderment and amusement, and gently chide, "But you should know this."

Some 27 years ago, we celebrated the Bicentennial, whooping up the 200th anniversary of the signing of the Declaration of Independence. The festivities were considerably more muted 11 years later, when we observed the 200th anniversary of the Constitutional Convention.

The 200th anniversary of Marbury vs. Madison causes no similar devotion, although it should. What happened in 1776 didn't define us as a nation. What happened during the 1787 constitutional debates in Philadelphia defined us only somewhat.

It's what happened on Feb. 24, 1803 -- when the Supreme Court handed down the decision in Marbury vs. Madison -- that established judicial review as a fundamental principle in American government.

For 200 years, the Supreme Court has examined laws and lower court decisions to see if they pass constitutional muster. (One quote from Chief Justice John Marshall sums it up more succinctly: "A law repugnant to the Constitution is void.") While Marbury vs. Madison might not ring a bell, its effect may be discerned from other Supreme Court decisions more famous -- or infamous, depending on where you camp out on the political spectrum.

There's Roe vs. Wade, 30 years old as of January, when the court ruled that state laws restricting abortions during the first trimester of pregnancy violated privacy rights. The debate on whether the high court's ruling was sound law or "judicial activism" -- i.e., judges legislating from the bench -- rages on.

"You have the right to remain silent" -- watch any cop show, and you're almost guaranteed to hear that line. Credit goes to the Supreme Court's 1966 ruling in Miranda vs. Arizona. Ernesto Miranda, some poor and not terribly bright bloke, was arrested in 1963 in connection with a theft. While in custody, he signed a written confession not only to the theft, but also to the rape and kidnapping of a Phoenix woman. He signed after a detective, stretching the truth, told him he had been positively identified.

Alvin Moore, Miranda's lawyer, managed to wheedle out of the detective during testimony that Phoenix police didn't tell suspects they had a right to consult an attorney before making a statement. Miranda's conviction was later overturned by the Supreme Court, and the term "Mirandized" was forever enshrined in American lexicon.

The Roe and Miranda decisions outraged conservatives, who said Earl Warren (chief justice for the latter decision) and Warren Burger (chief justice for the former) courts were guilty of judicial activism, not judicial restraint.

"All the talk about judicial restraint in the past on the part of conservatives has been just that: talk," said former New York Times columnist Anthony Lewis last month. Lewis was in Baltimore to participate in a panel discussion on Marbury vs. Madison. The panel met in the University of Maryland Law School's ceremonial courtroom. Joel Grossman, a Johns Hopkins University political science professor, moderated.

"Judicial activism has become the hallmark of the conservative court," Lewis continued. He was referring to the current court where William Rehnquist serves as chief justice. The panel on which Lewis spoke had the somewhat loaded title (lordy, why do lawyers talk this way?) of "Judicial Review, Judicial Activism, Democratic Governance and the `Countermajoritarian Difficulty': Whither the Rehnquist Court?"

Lewis contended that the Rehnquist court has, since 1995, ruled that 31 federal laws were in whole or in part unconstitutional. Syndicated columnist George F. Will, writing in the March 3 Newsweek, noted one of those laws was the federal Gun-Free School Zones Act. Will said, "The Rehnquist Court's ruling left states empowered to enact gun-free school zones democratically." And in accord with the principle of federalism, he might have added.

Is it "judicial activism" for a conservative court to remind Congress that the Constitution limits the power of federal government and that some matters are best left to the states? Thomas Carney, a University of Baltimore professor on the panel with Lewis, noted that whether a Supreme Court practices judicial restraint or activism depends on how far to the left or right the observer is.

Americans will debate that subject for many years, as we should. Marbury vs. Madison truly made us who we are.

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