Democracy Case Study

One of the reasons our democracy works so well, is that, ironically, it contains many undemocratic elements. One of the most visible and powerful of these undemocratic elements is the Supreme Court. The Supreme Court is the nation's highest court. Indeed, this court is supreme is both name and fact. It has the last word on issues of profound importance to the public; issues that may impact some of the most intimate aspects of your life. In recent years the Supreme Court has decided cases that have determined whether you will have access to an abortion, who you can marry, what types of consensual sexual practices you can engage in, whether you can be compelled to recite the pledge of allegiance, whether you can be put to death for committing a crime, what kind of religious freedoms you have, and if you have right to have someone help you terminate your own life.

The federal judiciary has the power to strike down the will of the majority as expressed through legislative action. This gives the courts enormous power and responsibility. However, the courts exercise this power independently of the will of the people. Justices are neither elected by the public nor does the public have any direct way of impacting or even accessing the decision making process of the federal courts. How, in a democracy, can the courts be allowed to exercise such incredible power and responsibility in strict secrecy and with no accountability to the public? Although often criticized, it is actually the primary role of the federal judiciary to exercise power in a counter-majoritarian manner. The Constitution was designed to ensure that power remained with the people. The Framers created this fundamental law to prevent any individual or body from taking on too much power and exercising power capriciously. Constitutionalism is important because it protects popular sovereignty. It is therefore interesting that, when creating the Constitution, the Framers failed to include a mechanism to protect the Constitution. They did not specify who interprets what the Constitution means and who ensures that its provisions are not being abridged. How this role was taken on by the Supreme Court is one of the more interesting anecdotes in U.S. political history and will be examined in some detail below.

Section 2

In order to understand how the Supreme Court works today we must, once again, go back to the founding of our political system. George Washington, the first president of the United States, was also arguably the most popular president in the history of the United States. This popular mandate allowed Washington to govern with very little opposition; however divisions simmered close below the surface within his administration. And, soon after Washington left office, these differences developed into factional fights. The second president of the United States, John Adams, became the leader of the faction known as the Federalists. The Federalists represented the major commercial interests of the day and advocated a strong central government. They felt that the commercial and global potential of the young nation could best be realized if the ship of state was piloted by a strong and unified national government. The Anti-Federalists were led by Thomas Jefferson, the third president of the United States. They supported the small farmers and artisans and felt that the interests of these groups could best be represented by smaller state governments which were "closer" to the people.

During the Adams' administration, the U.S. found itself in an undeclared naval war with France and the foreign policy crisis divided the nation. Citing national security concerns, the Adams administration passed the Alien and Sedition Acts, which made it illegal for the press to criticize the U.S. Government. In addition to clearly violating the First Amendment of the Constitution, these acts turned out to be tactical political error for Adams and the Federalists in the upcoming election of 1800. Although the Anti-Federalist newspapers were largely muted because of the Sedition Acts, the Anti-Federalists were still able to paint the Federalists as tyrants who were willing to quash civil liberties in order to remain in power. In response, Federalist newspapers claimed that the election of Jefferson, the Anti-Federalist candidate, would result in the "teaching of murder robbery, rape, adultery and incest."

At the time, electors were able to cast two electoral votes, one for President and one for Vice President although the votes were not specified as such. Consequently, because these votes were cast simultaneously, Thomas Jefferson actually tied in the electoral vote count with his running mate Aaron Burr. Jefferson and Burr each received 73 electoral votes, Adams received 65, Thomas Pinckney received 64, and John Jay received 1. Because no candidate won a majority of the Electoral College vote, Congress was forced to decide the winners. After 36 different ballots were cast, Jefferson emerged victorious when the New York legislature became dominated by Jefferson supporters thus providing him with 12 key electoral college votes; Burr was elected Vice President and Adams went down in defeat. In order to prevent this situation from developing again, a 12th Amendment was added to the Constitution in 1804, instructing that the President and Vice President will be chosen by separate Electoral College votes.

The election of 1800 was one of the first times in history that political power was peacefully transferred from one faction to another. However, the lack of physical violence does not mean that the transition was entirely amicable. The wake of this contentious election set the stage the most important Supreme Court decision in U.S. History. When Adams realized that the Federalists had lost both the Presidency and the Congress, Adams appointed as many Federalists as he could to the only branch of government over which he retained any control: the Judicial Branch. One of his appointments was to make his Secretary of State, John Marshall, Chief Justice of the Supreme Court. Among many other appointments was the appointment of William Marbury as Justice of the Peace to the District of Columbia. At the time, judicial appointments were formally delivered by the Secretary of State. However, a number of appointments, including Marbury's, were not formally delivered before Jefferson began his term. Marbury sued to ask the Supreme Court to order Jefferson's new Secretary of State, James Madison, to deliver his appointment. Such an order is known as a writ of mandamus.

The case of Marbury v. Madison placed the Marshall Supreme Court in a very awkward position. If the court ruled in favor of Marbury it would look like the court was nothing but another branch of government which decided issues according to partisan

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