January 2013 Bar Bulletin
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January 2013 Bar Bulletin

A Power Grab of Constitutional Proportions

By Robert W. Zierman


Power is the ability to destroy. More importantly, power is also the ability to create. We know that law organizes our society in order to delimit the destructive forces of chaos. We also intuitively know attempts to control order too much also destroy initiative and creativity.

Interestingly, complexity theory1 posits there is an optimal balance between order and chaos. Paradoxically, it is the balance of these two otherwise destructive forces that unleashes the most powerful forces of creative change.

The initial step toward understanding complexity theory is often learning about the "Butterfly Effect."2 The Butterfly Effect offers the possibility that the random flap of a butterfly's wings in Brazil may set off a tornado in Texas.3

Certainly, striking the proper balance between order and chaos was the attempt of the framers of our Constitution. But this parchment was not originally vested with as much power as it now holds. Quite to the contrary, this vesting did not occur until the public airing of a case and the stately crafting of an opinion that is the legal equivalent of M.C. Escher's iconic lithograph "Drawing Hands."4

Which case? None other than one of the first ones we learned about in law school: Marbury v. Madison.

Now, while you may still have distaste for this seminal case from your 2L Con Law class, if ever the principles of Machiavelli's The Prince applied, it would be in this case. Machiavelli's whole body of work in this context is pithily summed up as "the ends justify the means." Marbury v. Madison did just that.

The apparent "end" was a power grab over a fairly trivial procedural matter. William Marbury sought mandamus. Specifically, President John Adams on his last day in office sought to make a slew of judicial appointment commissions. Unfortunately for Adams and his team of Federalists, some of those commissions were delivered late. Marbury was one of these unfortunates and as such was frustrated in becoming justice of the peace for the District of Columbia.

To further clarify, the problem was not that John Marshall in his capacity as secretary of state - and who coincidentally was appointed and began to serve as chief justice of the Supreme Court - had signed and sealed Marbury's commission.5

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