[INSIGHT]The court can make history

The impeachment trial of President Roh Moo-hyun now before Korea's Constitutional Court appears tailor-made for the justices to make a landmark ruling. To understand why, consider an old U.S. Supreme Court case, Marbury v. Madison, decided in 1803 and regarded as a turning point in American constitutional history.
The Constitutional Court is similar to the U.S. Supreme Court in that it has the power to decide constitutional questions. But in Korea’s case, that also includes the impeachment of the president. The responsibility of Korea’s Supreme Court generally is limited to handling appeals of regular civil and criminal cases.
Like the Roh Impeachment Bill, the Marbury case arose at a time of vicious political in-fighting in the early days of the American republic. The conservative party of the wealthy establishment, the Federalists, had been in power since the new government began in 1789. In 1800 they were voted out, and the populist Democratic-Republicans took control of both Congress and the presidency, with Thomas Jefferson replacing John Adams.
“I die, you die” factionalism, closely linked, as in Korea today, with regionalism, was rampant. Political discourse was filled with invective and personal vituperation during the election and its aftermath. The bluster and anger were on par with the worst that Korean politicians and the more unrestrained partisans on all sides regularly serve up.
Though they lost the election, the Federalists retained significant influence in government, particularly in the judicial branch, which they had filled with appointees during their reign. Moreover, sensing their coming embarrassment at the polls, the Federalists earlier in 1800 passed a Judiciary Act creating a large number of judgeships, to which President Adams appointed Federalist loyalists.
The Democratic-Republicans were outraged at this blatant attempt to frustrate what they deemed their electoral mandate to take complete control of the machinery of government. Forgetting in their partisan zealotry that the genius of the American system of government is precisely the obstacles that it creates to the seizure of complete state power by any one faction, interest or party, they repealed the Judiciary Act.
They went further. Although Adams had made appointments to the new judgeships, not all the recipients had received their commissions before Jefferson's administration took office. William Marbury was one such, and when he sought to obtain his commission from Secretary of State James Madison, he was refused. Marbury sued Madison for its delivery.
There is a maxim in Anglo-American jurisprudence that hard cases make bad law. Marbury's petition certainly presented the nascent Supreme Court, the weakest branch of the new Federal government, with a deadly dilemma.
Chief Justice John Marshall recognized that if the Supreme Court ruled for Marbury, and ordered the government to commission him, the Jefferson administration would ignore the order. Since the court had no means to enforce its judgment against the executive branch, the principle of the rule of law thus would be fatally weakened --in a way that highlighted the potential for executive tyranny.
Similarly, if it simply rejected Marbury's petition, the principle of the rule of law would be equally wounded by the resulting perception that the court, like Korean courts during the long decades of post-war authoritarian rule or, worse yet, the Japanese occupation, was nothing but a fearful and supine instrument of executive power.
The court's decision was a masterpiece of judicial wisdom. Chief Justice Marshall opined that Madison should have delivered Marbury's commission in accordance with the Judiciary Act. But he also held that the section of the Judiciary Act that purported to create federal jurisdiction over a case such as Marbury's was itself defective.
It attempted, Marshall said, to confer on the Supreme Court a breadth of jurisdiction that exceeded that provided in the Judiciary Article, Article III, of the Constitution, which defined and significantly limited the scope of the federal courts' jurisdiction.
The court consequently held that it was not empowered to issue the writ demanded by Marbury. But, the court also ruled that the action taken by the executive branch in denying Marbury his commission was unlawful. The court thus was able to strongly rebuke the Jeffersonians without creating a situation in which they could show contempt for the court's ruling and the law by refusing to follow it.
As important, the court was able to firmly establish a number of even more crucial precedents in a manner that would not provoke or support significant opposition from any quarter.
Marbury is the seminal case in American constitutional law because it successfully articulated the principles that: the Supreme Court has the authority to declare acts of both the Legislature and the Executive unconstitutional or unlawful if they exceed the powers set forth in the Constitution or violate validly enacted legislation; and the court itself is the final arbiter of the meaning of the Constitution.
Notably, the court accomplished all this while also humbly ruling that its own powers themselves were limited by the Constitution and could not be expanded by legislative fiat. Justice Marshall's carefully-crafted opinion also hewed closely to the technicalities of the law, instead of stooping to appeals to public sentiment, vague notions of equity or airy appeals to justice.
Although the rule of law in the United States owes its establishment and success to many factors, Marbury arguably was the single most important event in implementing the rule of law in the operation of the government and the American political order generally. It is thus the great exception to the "hard cases/bad law" rule.
Will the Constitutional Court similarly rise to the challenge? Will it be able to craft a masterful solution to the current impeachment crisis that decisively changes the face, and the heart, of the Korean political system and commits it to the rule of law instead of the mob ― whether the mobs of the street or the legislative chamber?

* The writer is a Harvard-trained lawyer who owns a real estate investment firm in Korea.

by Kent A. Davy