Egypt’s president could learn a lesson from our Founding Fathers

When Egypt’s President Mohammed Morsi declared last week that decisions he makes cannot be overruled by his nation’s judges, more than 200,000 people came to protests across Cairo.

Mohammed Morsi. Source: Forcalgeria.

To Americans watching the turmoil, the notion that one branch of the government could simply overrule or even dissolve another branch is horrifying, and practically inconceivable here in the United States.

“Practically” is, in fact, the operative word since it almost did happen here.

While the protests by Americans could not have been caught on iPhone cameras and there were no tweets about the struggle, back when the Constitution was newly ratified, the separation of powers and the strength of each branch of government had yet to be set in stone.

In the late 1700s, two political factions dominated the landscape: the Federalists, who favored a stronger national government, and the anti-Federalists, who favored state sovereignty over a powerful federal government.

Federalist President John Adams, who was elected president in 1796, became unpopular during his term and lost his bid for re-election in 1800.

But before he left office, he passed legislation that reduced the number of Supreme Court justices from six to five to give the party about to take office less chance to replace the justices who were currently all Federalists.

Adams, along with a Congress that was mostly Federalist, took another step to keep his party in charge of the judiciary. Just two days before leaving office, he passed a law that expanded the judicial system and appointed 42 Federalist justices of the peace and 16 Federalist justices of the federal court who were confirmed for the positions on Adams’ last day in office.

But it was up to Adams’ successor to deliver the commissions to the newly (and hastily) confirmed justices. As you can imagine, when Thomas Jefferson took office the next day, finding exactly ZERO members of his own party had been made judges, he refused to give the newly appointed judges their commission.

William Marbury, one of the newly appointed judges, refused to take the matter lying down, and sued the then-current secretary of state, James Madison (a name that may sound familiar), and petitioned the Supreme Court to give him his commission so he could take his rightful place on the bench.

The Supreme Court, still new to its power, had a real dilemma on its hands. It could rule in favor of Marbury, who was appointed by Adams—a member of the party of all of the Supreme Court justices at the time. But if the Court did that, it would risk angering the popular President Jefferson.

Even worse for them, at the time, Supreme Court justices could be impeached, and they worried that they risked their jobs by ruling against Jefferson. So what did they do?

Actually, they acted brilliantly.

In a decision known as Marbury v. Madison, the Supreme Court said a few things that both calmed the tensions at the time and also set the standard for the power of the Supreme Court.

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First, the Supreme Court said that since the justices had been appointed and confirmed, they should get their commissions. But that said, the Supreme Court then found that Congress didn’t have the power to create the law that expanded or changed the judicial system since the power to decide those matters was entirely in the hands of the Supreme Court.

According to the Supreme Court, “”It is emphatically the province and duty of the judicial department to say what the law is.

So while Marbury didn’t ultimately wind up taking office and Thomas Jefferson got what he wanted at the time, the effect of the Supreme Court’s decision had lasted far longer than either Jefferson or Marbury or any Supreme Court justice lived.

The decision actually shaped the powers of the Supreme Court to be the ultimate decision-making body—and gave the judicial branch of the government even more power than either the president or the legislature in deciding whether a law that was passed is in violation of the Constitution.

And so as Egypt struggles with the notion of how much power should be held by each branch of government, Americans know that the struggle is a difficult one, but one of the most important decisions a new country can make when it establishes its rule of law.

Amy E. Feldman  is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.