Part I: History and Language
John Marshall: The First Activist Judge
Thomas Jefferson once said about judges that he had a fear of their "habit of going out of the question before them, to throw an anchor ahead, and grapple further hold for future advances of power." His distrust was furthered by Federalist judicial actions during the Alien and Sedition Acts, and it all came to a head with the Judiciary Act of 1801. The Judiciary Act created six new circuit courts to be presided over by 16 Federal justices, and a veritable battalion of federal marshals, clerks, and attorneys.
While these positions were (arguably) needed, the Federalist Congress shamelessly appointed their favorites into these positions. John Adams, not immune to favoritism himself, worked into the night feverishly signing their commissions right up until midnight March 3rd, his last day in office.
Republicans repealed the Act, but Jefferson found that some commissions had not been handed out. In a pique he held them up, refusing to lawfully distribute them. One of the appointees, William Marbury, petitioned the Supreme Court for a writ of mandamus directing the new Secretary of State, James Madison, to honor his commission.
Chief Justice John Marshall, one of Adams' "midnight" appointees, was forced into a quandary: if he refused the writ, he would be accused of not being able to stand up to Jefferson, and his, as well as the Court’s, power would be diminished. If he issued the writ, he would be at odds with Jefferson, as he would be seen in at least equal footing with the executive.
In a stroke of cunning genius, Marshall declared that Marbury had the right of his commission. But his request has been based on an ambiguous clause of the Judiciary Act of 1789. Marshall ruled that the clause in question was unconstitutional, thus sacrificing Marbury as a pawn, and thereby setting up the Supreme Court as the interpreter de jure of the Constitution.
With this one action Marshall, by actually refusing power instead of "throwing an anchor ahead", did what Jefferson feared in grappling "further hold for future advances of power". And Jefferson could do nothing about it.
Language Barriers: Why Is There an "F" in the Word "Congress"?
Ideas, words, and even whole languages change over time. A scant 150 years ago, people thought nothing of sending their children off to work to the textile plant. Today not only is it illegal, but it's considered immoral to make a child work 8 hours a day for a wage (my son approves of this).
The word "artificial" at one time meant "created by an artist" (from the root word "artificer" or one who is a craftsman). Now it means something that is fake, or not natural. The English language itself is constantly changing, adding some words, removing others. Nobody says "the cat's meow" anymore (unless, of course, you're old, like me).
The language of the Constitution is not only written in "legalese", it is written in 18th century legalese. But all one has to do is sit down and read it to be able to understand its entire meaning. Yes, there are some oddities, such as the aforementioned "f" in "congress" (this was a "long s", used since the Middle Ages), and some words that, while not precisely having a different meaning today, have a different common usage. Ask the average Joe what the word "respect" today usually means, and they'll likely say it means how one person treats another. In the 1st Amendment, "Congress shall make no law respecting an establishment of religion", the word "respect" is used to mean "to not give favor to".
It is these types of discrepancies between writing styles 224 years ago and writing styles now that have given rise to the Supreme Court not only reinterpreting the Constitution, but also being installed with justices that will interpret it in a favorable way.
In part II of my diatr...er...article, I'll show some highlights of the good (read: correct) interpretations, and the not-so-good, and why interpretation, instead of application, of the Constitution has eroded our rights as a nation, rather than protect them as the Constitution is intended.
