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The Parallel That Wasn't: John Marshall and Kofi Annan
Published on Thursday, July 10, 2003 by CommonDreams.org
The Parallel That Wasn't: John Marshall and Kofi Annan
by Paul deLespinasse
 

Most Americans are aware that this year is the hundredth anniversary of heavier-than-air flight. Only a few remember that it is also the two hundredth anniversary of the Supreme Court's major decision in Marbury v. Madison. Even fewer people realize that Kofi Annan, Secretary General of the United Nations, had an opportunity this year to do the same kind of thing that Chief Justice John Marshall did back in 1803, but did not take advantage of that opportunity.

The 1803 Marbury case may be the most important decision ever made by the United States Supreme Court because it established the principle of national judicial review. It was already clear that federal courts could strike down state legislation if it conflicted with federal law or with the Constitution, but it was not so clear that the courts also had the power to strike down acts of Congress, a co-equal branch of the federal government. Under Chief Justice Marshall's leadership, the Supreme Court announced in Marbury that it had this latter power, and it did so in a context in which the other branches of government were unable to do anything about it.

Political parties were just beginning to emerge in 1803, and the Marbury case was brought about by a conflict between the Federalists and the Jeffersonian Republicans (which later became the Democratic Party). In 1801 outgoing President John Adams, a Federalist, had appointed some new federal judges at the last minute, but the official paperwork had never been delivered to the new judges. James Madison, Secretary of State for the new Republican President, Thomas Jefferson, refused to deliver the "commissions" to the new judges. He thought that the appointments were an illegitimate attempt by the defeated Federalists to preserve their influence by ensconcing themselves in the judicial branch of the government.

William Marbury, one of the disappointed judges, initiated a lawsuit in the Supreme Court against Madison, seeking a court order that Madison deliver the paperwork. The Court was explicitly given the power to issue such an order by the Judiciary Act, which had been enacted by Congress in 1791. But Chief Justice Marshall feared that the Court might lose face if it issued such an order to Madison and he ignored it, which he well might do.

Neatly escaping from this danger, Marshall wrote a decision announcing that Congress had exceeded the powers given it by the Constitution when it enacted the Judiciary Act of 1791. Therefore the Court had no authority to issue the order requested by Marbury, since its power to issue the order was itself granted by the law which the Court was striking down.

This decision is now regarded as a brilliant and elegant one. Jefferson's Secretary of State could not defy the decision, since the decision did not order him to do anything. But by deciding that it did not have the minor power to issue the requested order in this trivial case, the Supreme Court was establishing the principle that it has the major power to strike down acts of Congress as unconstitutional.

It is ironic that exactly two hundred years after Marbury v. Madison, the U.N. Secretary General was presented with an opportunity this spring to pull a "John Marshall" but failed to seize that opportunity. During the run up to the American attack, U.N. inspectors were in Iraq looking for weapons of mass destruction. When the attack was imminent, President George Bush asked Kofi Annan to remove the inspectors, getting them out of harm's way before the bombing started. The Secretary General promptly withdrew the inspectors.

Instead, Kofi Annan could have announced that he lacked the power to withdraw the weapons inspectors from Iraq unless the Security Council ordered him to do so. The Security Council, of course, would have done no such thing, since a resolution to that effect would have been vetoed by France or by Russia even if it had gotten the required nine out of fifteen votes.

I believe that President Bush would have been unwilling to proceed with the attack if the inspectors had remained, since they were known individuals and due to their weapons search would have been in locations which were prime targets. It is one thing to kill lots of anonymous individuals, and entirely another matter to kill people with whom we are acquainted through the mass media. And the clout of the inspectors with the regime in Baghdad would have been increased, since only their remaining would stand in the way of an American attack.

As with John Marshall in 1803, a decision by Kofi Annan that he lacked the power to do what George Bush asked him to do would have turned the office of Secretary General into a much more powerful one in the future, and would thus have given a badly needed boost of power to the United Nations itself.

I do not know whether Annan was aware of the opportunity described here.

After an article I wrote pointing this opportunity out was published by Common Dreams, a major on-line newspaper, on March 11, hundreds of readers tried to bring the idea to Annan's attention by various methods. Common Dreams reported that the article was their "most forwarded" article of the week. But it is not easy to communicate with important people, who must limit the people to whom they pay attention in order to avoid being inundated. So I do not know whether Annan got the idea but for one reason or another decided not to do it, or whether the concept never got to him.

Whatever the reason for Annan's failure to act, it is too bad. John Marshall's decision in Marbury v. Madison strengthened the U.S. Supreme Court, which in turn strengthened the government of which it was a part. The world as a whole needs stronger governing institutions, and Kofi Annan would have made a great John Marshall for the world!

Paul F. deLespinasse is professor emeritus of political science at Adrian College in Michigan. His virtual book, The Metaconstitutional Manifesto: A Bourgeois Vision of the Classless Society, is available for free reading, linking, and reprinting via www.adrian.edu/pdeles.html. He can be reached at pdeles@proaxis.com.

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