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Marbury vs Madison - A BACKGROUND OF WAR

It is 1767, and the American colonists are extremely upset. Without any American representation in the English Parliament, that body (the equivalent of the United States Congress) has passed laws taxing the colonists on all kinds of things.

Americans, who came to the "new world" to get away from the arbitrary power of the "old world," believe the laws are unconstitutional. Since unconstitutional laws are not laws at all, why obey them? Why not disregard the laws and send England’s local representatives back across the Atlantic?

Rebellion is imminent. The struggle for freedom from arbitrary government is not new to Englishmen. They have fought such wars before. Charles I, once a king, lost his head because the people perceived he acted capriciously toward them.  The colonists, like their ancestors before them, believe that even kings are circumscribed by laws.

The struggle for freedom, from a leader who has no responsibility to the governed, seems unavoidable. A revolution, to free the colonists from the burden of unconstitutional laws, draws near. A war, it seems, is worth whatever personal sacrifices the people have to make.

America’s leaders are men who firmly believe in consent of the governed. They hold to the principal that men (remember, this is the 18th century) have rights that are theirs because they are human beings, not because rights are gifts from a government.

Human rights, they assert, exist even before governments are formed. And those rights are constitutionally protected, whether there is a written document (like America’s founders eventually created) or not (as in the case of England where the common law - that "bulwark of individual liberties against what might well be called the irrepressible monarchic aspirations of kings" - is itself the protector of the people). [See page 4 of The Birth of the English Common Law, by R. C. Caenegem.]

Colonial Americans also claim the English common law and the English Bill of Rights (of 1689) as their protection. Six years earlier, in the 1761 Writs of Assistance case, James Otis, a brilliant lawyer and fiery revolutionary (“taxation without representation is tyranny”) alleged Parliament had overstepped its bounds. Another apparent scheme to collect more taxes from the American colonies, the Writs - Otis argued - were illegal.

In his losing argument to the Boston colonial court, Otis quoted Lord Chief Justice Edward Coke, a leading English jurist of the early 17th century:

It appeareth in our books, that in many cases the common law will control Acts of Parliament and adjudge them to be utterly void; for where an Act of Parliament is against common right and reason or repugnant or impossible to be performed, the common law will control it and adjudge it to be void.

If no person is obligated to obey an unconstitutional law, then one can reasonably argue - as the American founders did - that revolution is, in fact, a defense of the law. Rebellion against an unlawful act is not rebellion at all. Incorporating that concept into his proposed design of the new country’s Great Seal, Thomas Jefferson notes (in language he and Ben Franklin selected):

Rebellion to tyrants is obedience to God.

After a hard-fought war, the United Colonies became the United States. What kind of government would this new country adopt? Would there be a written constitution? If so, what form would it take?

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Author: Carole D. Bos, J.D. 5124stories and lessons created

Original Release: Apr 01, 2007

Updated Last Revision: Sep 23, 2015


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