It is simply not true that history is at a crossroads. On the contrary, it is we who are mere mortals, as opposed to history which is eternal, who are marking time at the crossroads. That is the firm verdict of Steve McGregor-McCween, the emeritus professor of History who over the last three decades has held academic positions at several leading American universities – Princeton, Yale, Stanford and, more recently, Georgetown. In the last three years, his focus has been Africa in general and Nigeria in particular.
The ex-KPMG partners were minding our own business in the lounge of our hotel, Capella Washington D.C. Georgetown, 1050 31stStreet, Washington D.C. 20007, when he sauntered in and insisted that we should join him at the bar for a drink. What followed was an invitation to the lecture he would deliver on the following day at Georgetown University Law Center, 600 New Jersey Avenue NW Washington, DC 20001, before a packed hall of students graduating in History/African Studies. It turned out to be a master class.
Rather than focus on history per se, he devoted most of the lecture to law, particularly the principle of equal justice under the law which owes its origin to the funeral oration delivered in 431 BC by the Athenian leader Pericles: “Our constitution does not copy the laws of neighbouring states; we are rather a pattern to others than imitators ourselves. Its administration favours the many instead of the few; that is why it is called democracy. If we look to the laws, they afford equal justice to all in their private differences; if no social standing, advancement in public life falls to reputation for capacity, class considerations not being allowed to interfere with merit; nor again does poverty bar the way, if a man is able to serve the state, he is not hindered by the obscurity of his condition.”
He then proceeded to pay fulsome tribute to late Justice Thurgood Marshall (July 2, 1908-January 24, 1983) and recommend his dictum – “Just do the right thing and hope that the law follows and catches up with you” – to President Muhammadu Buhari who is waging war against corruption in Nigeria.
The least we can do is to faithfully record that Thurgood Marshall was an Associate Justice of the United States Supreme Court from October 1967 until October 1991. He was the Court’s 96th justice and its first African-American justice. Before becoming a judge, he was a lawyer (not a chartered accountant!) who was celebrated for his phenomenal success rate in arguing cases before the Supreme Court and for the victory in Brown versus Board of Education, a decision that desegregated public schools. He served on the United States Court of Appeals for the Second Circuit after being appointed by President John F. Kennedy, and then served as the Solicitor General after being appointed by President Lyndon Johnson in 1965. President Johnson nominated him to the United States Supreme Court in 1967.
We could not but marvel at the splendour of the “fresh eager faces” (to misquote William Wordsworth, the poet) of the graduating students who were obviously spellbound and utterly captivated by the masterly delivery of the erudite scholar who then veered off into the doctrine of “Judicial Supremacy” which he insisted is far more relevant than history. He was able to draw support from the late president of the United States of America, Thomas Jefferson, who famously declared: “I like the dreams of the future better than the history of the past.”
Without missing a beat, the guest speaker deftly reminded us that we have to be careful not to mix up “Judicial Review” with “Judicial Supremacy”. Judicial Review is the doctrine under which legislative and executive actions are subject to review by the judiciary. On the other hand, “Judicial Supremacy” is when the courts have the power to change laws that infringe the Charter of Rights and Freedoms or when courts make all the laws, abiding by the Charter.
Furthermore, the doctrine is reinforced by and firmly anchored on the following dictum: “The supremacy of Supreme Court opinions in questions of constitutionality has evolved into an indisputable doctrine in the United States. Virtually nobody, particularly in the legal community, questions the idea that the Court serves as the final decision maker when it comes to the Constitution.”
We were caught completely off-guard when the guest speaker mischievously quoted Mike Maharrey who flatly denounced the doctrine: “This view is nonsense. John Marshall’s 1803 opinion in Marbury versus Madison serves as the cornerstone of this doctrine. After all, Marshall declared: ‘It is emphatically the province and duty of the judicial department to say what the law is (not to change it)’.”
Thankfully, history provides confirmation that on February 27, 2013, Maharrey testified before a Tennessee Senate Committee on a proposed Second Amendment Act and argued that: “Modern legal scholars snatch Marshall’s words out of context. He never intended to imply that the Supreme Court was the sole and final arbiter on all things constitutional. The Chief Justice was merely asserting that the Court can, in fact, strike down an act of Congress by calling it unconstitutional. Nowhere in his opinion does Marshall hold that the Court has exclusive authority to rule on constitutionality, but places the power in the courts, along with other branches of government. The particular phraseology of the Constitution confirms and strengthens the principle – that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”
With admirable good humour, the guest speaker added that Maharrey was even more forceful in his seminal essay, “Nullification for Lawyers [and Chartered Accountants]”: “Marshall was answering a specific question: does the Court have the authority to consider the constitutionality of an act when ruling on a case. At issue was a provision of the Judiciary Act of 1789 and whether the court had original jurisdiction to decide if a writ of mandamus could be issued to force Madison to hand over Marbury’s commission. Some argued that the court should just consider the law – the Judiciary Act itself – and not the Constitution. Marshall defended his decision to rule based on the Constitution. The judicial power of the United States is extended to all cases arising under the Constitution.
“Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises? That is too extravagant to be maintained.”
The audience went wild with applause followed by a standing ovation.
Q: The supremacy of Supreme Court opinions in questions of constitutionality has evolved into an indisputable doctrine in the United States. Virtually nobody, particularly in the legal community, questions the idea that the Court serves as the final decision maker when it comes to the Constitution
J.K. Randle
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