First Circuit Court of Appeals Declines to
Prevent President from Taking the Country to War

9/4/2005 – Retrospective.  Chief Justice William Rehnquist died today.

In the prelude to the invasion of Iraq, the First Circuit Court of Appeals handed down a decision dismissing the matter of Doe v. Bush, a lawsuit in which several of our military families were plaintiffs joined by a smattering of United States Congressmen.  The suit was against President Bush and Secretary of Defense Donald Rumsfeld and attempted to prevent them from invading Iraq without a Congressional declaration of war. The Court found that "the case continues not to be fit for judicial review," stating that "Congress has taken no action which presents a fully developed dispute between the two elected branches."  Earlier this same Court stated, "To evaluate this claim.[w]e would need to assume that the Security Council will not authorize war, and that the President will proceed nonetheless."

What is fascinating is the citizenry’s unwavering grasp to an illusion of federal judicial power.  What was found in the seminal United States Supreme Court 1803 decision in Marbury v. Madison was that while a court of cognizable jurisdiction must say what the law is, the United States Supreme Court was not provided with the powers of mandamus or prohibition over federal officers to do anything about it.

Marbury, in this sense, may prove to be the most valuable and enduring accomplishment by James Madison, the father of the Constitution of the United States of America.  In 1798, Mr. Madison together with his friends and associates John Taylor of Caroline County, Virginia, and Thomas Jefferson, made very clear that the federal government was framed as the general government of the states.  In other words, it is not a sovereign entity, that all of its powers of sovereignty are delegated to it by the states, which are sovereign.

The powers of mandamus and prohibition were the sovereign prerogative powers of royal authority over subordinate lords and corporations.  These powers were well established in the law and understood by the founding fathers. If the prerogative powers of royal authority had been delegated to the federal judiciary it would have created a separate sovereignty over the states, something they were not attempting to create.  No person would know this better than James Madison and he prevailed in court before Chief Justice John Marshall on this point. The general government of the United States is the creation of thirteen independent and sovereign states, and just as the king had prerogative powers over his subordinate lords, the states clearly retain prerogative powers over their federal government.

Clearly, the power to restrain unconstitutional actions by federal officers lies in the state judiciary, especially those of the original thirteen colonies.  While the 1798 Virginia and Kentucky resolves emanated from legislatures, mandamus and prohibition from state judiciaries would be harder to ignore.  For example, the process of the war-allowing resolution could have been challenged and stopped while still in Congress.

The future of our country remains in our system of English law and the Constitutions which came out of it.  I pray that we grasp this understanding quickly and use it to bring peace with prosperity and a future for all life on this planet.  We are all God’s children.


Bob Ficalora