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 Professor 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.
In a lecture at Georgetown University Law Center before a packed hall of students graduating in History / African Studies, he, rather than focus on history per se, 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”.
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.
The erudite scholar 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 re-inforced 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 Professor 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.”
For laymen and chartered accountants what we could at the very least take away was confirmation that:
“Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. A court with judicial review power may invalidate laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution. Judicial review is one of the checks and balances (not balance sheet!!) in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.”
Even more intriguing is another doctrine as regards which the Guest Speaker waxed lyrical – “Civilian Control Of The Military.”
“Civilian control of the military is a doctrine in military and political science that places ultimate responsibility for a country’s strategic decision-making in the hands of the civilian political leadership, rather than professional military officers.”
We were served with two contrasting examples.
Samuel P. Huntington : “The Soldier And The State”
“The civilian ideal is the proper subordination of a competent, professional military to the ends of policy as determined by civilian authority. The de facto opposite of civilian control of the military is military dictatorship. De facto lack of control over the military may result in a state within a state.”
Mao Zedong, President of the People’s Republic of China chose to shoot from the hip. He stated the crux of the matter bluntly:
“Our principle is that the Communist Party of China commands the gun, and the gun must never be allowed to command the party.”
We were treated to the following citation on late Justice Thurgood Marshall: Thurgood Marshall was America’s leading radical. He led a civil rights revolution in the 20th century that forever changed the landscape of American society. But he is the least well known of the three leading black figures of this century.
Martin Luther King Jr., with his preachings of love and non-violent resistance, and Malcolm X, the fiery street preacher who advocated a bloody overthrow of the system, are both more closely associated in the popular mind and myth with the civil rights struggle. But it was Thurgood Marshall, working through the courts to eradicate the legacy of slavery and destroying the racist segregation system of Jim Crow, who had an even more profound and lasting effect on race relations than either of King or Malcolm X.
• Bashorun Randle OFR, FCA wrote from Lagos.