gentle civics reminder

Checks and balances

I missed a historic anniversary Monday because I focused on the US vote at the United Nations. Don't get me wrong: when our United Nations Representative cast the administration's vote in New York aligning us with Russia on the Ukraine war, that was a huge deal. A loyal subscriber and long-time friend opined almost instantaneously after I published the column,

"This is not just a new policy, this is capitulation to the incarnation of evil. This is the most reprehensible foreign policy action in US history since fabrication of war against Spain in 1898 or against Mexico in 1845. Sad to think this is what our government has become. I spent my youth helping Soviet dissidents; I hope I do not spend my latter years becoming one in my own country, for the same reasons."

Yes, Monday, 24 February 2025 was memorable.

Similarly, 24 February 1803 was precedent-setting for reasons equally important to us these days. On that early nineteenth century day, the decision Marbury v Madison (1803) became a legal precedent if you remember your civics. Both the president and Congress accepted the Court's responsibility to consider the legality of decisions and the finality of its word on the controversies associated with the legal questions. Marbury remains integral to how our country has operated for two hundred twenty-two years. It's the principle of judicial review, a pretty innocuous-sounding term.

This decision is the connective tissue for the checks and balances we operate under. Marbury is playing out every single day this week. The three branches of government have co-equal, though competitive, roles in governance.

Judicial review grants review power to the judiciary as a co-equal branch of government. These reviews weigh the Legislature's actions (writing and passing laws) and those of the Executive (administering those laws) to ensure their consistency with the Constitution of the United States. My friends, this nation's commitment to living within the predictable framework of publicly-vetted laws is why I proudly remind regularly that our country privileges the rule of law.

China is a system operating under the rule of law. The CCP passes intricate, aspirational laws that it selectively implements. The Party claims to adhere to legal steps but often defaults to guanxi, the relationships fundamental to Confucian society to maintain stability and intra-party dynamics. In other words, passing laws is not the same as governing in conjunction with the laws and the intentions behind them.

Russia, Hungary, and Venezuela (quite a club, eh?) operate with laws on the books but under the personal preferences of strong-willed individuals pursuing self-interest. The decisions may have support among the leaders' clique but are divorced from the public.

Marbury set us on a completely different trajectory early in our history. The case considered Thomas Jefferson's new Secretary of State, James Madison, refusing to honor a commission for William Marbury. The details of the specific controversy are available elsewhere. The Supreme Court under the first Chief Justice, John Marshall, ruled that honoring Marbury's commission—issued when John Adams was president--would alter the balance of power more broadly than the Constitution intended. This ruling established the principle of judicial review by which the courts weigh the evidence of the Constitution versus the actions of the other branches.

It's hard to overstate the significance of Marbury because it assures that all three branches operate in a delicate yet crucial tension to facilitate a participatory governing structure. Subsequent rulings, such as McCulloch v Maryland (1819), Dred Scott (1856), Brown v Board of Education (1954), or Griswold v Connecticut (1965), would have far less meaning if they were honored at all. Marbury, in short, is at the heart of our political system.

The principle is also under siege from those who believe we ought to destroy the long-serving tri-partite balance by enabling a far more powerful executive branch. This concept is hardly new, dating back at least to former Vice President Dick Cheney's chief of staff, David Addington, advocating for a determinative White House role in much of government.

More recently, Project 2025 from the Heritage Foundation and writings by Curtis Yarvin, a particular favorite of Vice President J.D. Vance, argue strongly for more concentrated executive power because of the failures of democracy thus far. Yarvin, sometimes referred to as a neo-monarchist, has 53,000 followers on this substack; in contrast, Project 2025 has a significant role in the Trump 47 administration under Russell Vought as Director of the Office of Management and Budget.

This newer, controversial political philosophy, neo-monarchism, would eviscerate judicial review by allowing the Executive to ignore the input of the other branches. Those embracing this philosophical change in governance almost certainly dispute the validity of the court cases lodged against DOGE since 20 January. Indeed, without judicial review, none of the decisions by judges appointed under either Republican or Democratic administrations would matter to the conduct of government since the power of the Executive would be unquestioned and unimpeded.

The jurists ruling on the DOGE court cases overwhelmingly still embrace Marbury. Please note that even if you disagree with the merits of individual case decisions, the bipartisan nature of adherence to judicial review remains key, as it's a hallmark of our government within the boundaries of judicial review.

Judicial review awards the final decision to the courts. The courts may revisit a decision in a subsequent case, as occurred with the 1954 Supreme Court using Brown to overturn Plessey v Ferguson's 1896 "separate but equal" judgment when a relevant argument of jurisprudence arises.

Further reconsiderations of points of law can result from either Congress passing new laws or subsequent cases rising to the Court's docket for review. We do not willy-nilly overturn laws without a methodical process. Without judicial review, we would have constant court cases or an all-powerful executive ignoring anyone else's will. Neither sounds like a better solution.

Had the Supreme Court not implemented judicial review in 1803, governance in this country would have been radically different. I am not saying that all decisions have been perfect or that the courts are above the law; that is not my intent. However, we have forgotten how vital checks and balances are in the United States. Without judicial review, they would not exist, a genuinely paralyzing thought.

Powerful Chief Executives in other countries may appear more expeditious in their decision-making. Still, finding a more equitable or prosperous experience is a challenge despite our clumsy, clunky, and intended checks and balances. Our Constitution is imperfect but better than those in other systems of the People who can revise it through elections, bringing their representatives into office, or via Constitutional amendments. Without judicial review, we would still have infighting, more doubts, and many more problems governing our country. We are not perfect but we are deliberate and offer remedies for change if we undertake them.

I welcome your thoughts on judicial review, the warming temperatures, or anything else. I thank you for your time as well. We cannot have a dialogue without multiple voices so please chime in.

Thank you for reading Actions today or any day. I am especially thankful for those who subscribe financially, as you make such a difference in what I can access.

Be well and be safe. FIN

Kirk Victor, “David S. Addington: a Second Act Full Story“, 6 June 2011, Washingtonian.org, retrieved at https://www.washingtonian.com/2011/06/06/david-s-addington-a-second-act-full-story/

Curtis Yarvin, “Gray Mirror”, retrieved at