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The HBO series “Game of Thrones” is one of the most popular series on television. In fact, my resources show that the first season’s DVD set had the largest first week sales for an HBO weekly series. The series essentially revolves around the seat of power between seven kingdoms. The seat of power is located in King’s Landing, which is in the southern most point of the fictitious Westeros. As the second season continues, there are four kings claiming the right to the throne of the Seven Kingdoms. Who is the king at the start of the third book? Time will tell.
In the United States, we have three national claims to the throne and three local claims to the throne. We also have the fight between State and Federal law for power. While there is a balance of power, after writing the previous sentences, I guess we also have our own game of thrones. Part one this week is Federal Power versus Federal Power. Next week we explore state power versus state power. The final part of this three part series will explore federal versus state power.
Why does this matter to you? Let us consider perhaps the most polarizing issue in the country right now: gay marriage. I read an article today about a judge declaring an anti-gay marriage statute as violating the Constitution. We also have the problem of whether one state’s law on gay marriage can bind another state (week two). Finally, there will be an issue on whether federal law on gay marriage can overturn a state’s right to determine its own marriage laws (week three).
FEDERAL POWER VERSUS FEDERAL POWER
Anyone that has read the news lately knows that President Barack Obama’s “Obamacare” is now facing the scrutiny of the United States Supreme Court. According to the media, whether Obamacare is upheld as constitutional depends on Justice Anthony Kennedy’s swing vote.
Regardless of how the decision comes out, the smart water-cooler conversation should include the following phrase: “Marbury vs. Madison.” Just to keep consistent with my lawyerly responsibility, the official citation is Marbury v. Madison, 5 U.S. 137 (1803). Before you start throwing out phrases such as “three equal branches of government” and “checks and balances,” it is critical to know that before Marbury v. Madison, the judicial branch was not seen as an equal branch.
The great Justice John Marshall wrote perhaps, in my mind, the most brilliant decision ever written. I beg the attorneys’ forgiveness as I simplify the case perhaps unfairly. The Supreme Court was faced with a no-win situation. Under President John Adams, the Secretary of State James Madison was supposed to confirm William Marbury as a Justice of the Peace. Madison did not do so, and Marbury sought the assistance of the Supreme Court for his confirmation.
Justice Marshall essentially said two things: (1) that the Supreme Court has the final say on what is constitutional and what is not; but in a brilliant political move, Marshall said (2) that the Supreme Court did not have the constitutional authority to force Marbury’s confirmation. This placed the United States Supreme Court, finally, on equal footing with the President and the Senate. Completely obvious trivia question, how was the word “show” spelled in the opinion?
Here is the brilliance: Madison was the President at the time the decision came out, and Judge Marshall did not want to upset a sitting president by forcing a confirmation that Madison did not want. So rather than fighting with then President Madison, Marshall said that the Supreme Court had the power to determine what is constitutional and what is not, and then Marshall limited the Court’s power by saying that it did not have the power to force Madison to confirm the justices of the peace.
Essentially, the Supreme Court was able to get away with expanding their power because at the same time they limited their power by proclaiming that they lacked Constitutional authority to do the thing asked of them.
As you read the news and see articles about the Supreme Court ruling on an issue such as “Obamacare,” you can thank Justice Marshall for placing the final determination of whether a law is Constitutional or not squarely in the hands of the Supreme Court. Whether the Federal Government can govern the definition of a marriage as being between a man and woman or can extend it to include same-sex marriages will also be Game of Thrones between the courts and the other branches of government.