Folks, the Supreme Court was not given the Authority to decide the Constitutionality of any law beyond the Judiciary. Under the Constitution, it is a complete fallacy that the role of the Supreme Court is to decide what is, and is not, Constitutional, for either of the other equal branches.
The Supreme Court claimed that power in Marbury v. Madison - they elevated themselves above the Executive and Legislative. It was a power play and it worked.
Period.
And the Federalists were the first group to use that fallacy as a weapon. Today it is the sine qua non, the nuclear weapon, with which the Enemies of Liberty have gutted the republic. The moment that We the People understand that the limits of the Judiciary extend only to the Judiciary, and can not bind the Executive or Legislative, then the power to enslave Citizens dies instantly.
Until you understand that fundamental fact there can be no forward progress toward Restoration. Scroll through the BlogRoll on the far right column and look at how many of "our" Bloggers buy into the premise that the Framers intended that the Supreme Court could shut down either the Executive or Legislative. It only gets worse as you look into the "NRA-Type" Bloggers who believe it to be Gospel.
My disappointment is profound. If our Community is the most ardent group who intend to support and defend the Constitution, yet we do not understand it at a fundamental level, what's the f'n point?
Such people have permitted the Constitution to be defined for them, rather than simply reading the text and using their own braincase. You were told in elementary school that the branches of Government are equal. You were told that one of the vital "Checks and Balances" between the Branches is that the Supreme Court is the final arbiter of what is, and is not, Constitutional.
Connect those dots and tell me the arithmetic works. It does not.
By the way, those same teachers also told you Lincoln was a great man, and the Constitution is a Living Document.
Consider: Jefferson believed there was a horizontal set of checks and balances, with the three branches checking each other, though only "in their own sphere of action."
The Judiciary could overrule a lower court on a case. It could not, in his opinion, rule on acts of the Legislature or Executive.
The Executive could refuse to implement a law it believed to be unconstitutional.
Jefferson also believed there was a vertical set of checks and balances. States are bound by the Constitution as well, but a state could refuse to comply with a Federal law it considered unconstitutional.
All powers not expressly granted to the Federal government were reserved for the states; states could enact their own laws about matters over which the Federal government has no jurisdiction.
In support of this I offer an excerpt from one letter from Jefferson to Mrs. John Adams regarding the Sedition Acts: You seem to think it devolved on the judges to decide on the validity of the Sedition law.
But nothing in the Constitution has given them a right to decide for the Executive, more than the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them.
The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment; because the power was placed in their hands by the Constitution. But the Executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power has been confided to them by the Constitution.
That instrument meant that its coordinate branches should be checks on each other.
But the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch.
No wonder so many people in our community despise the Constitution - they have no idea how it is supposed to work, on the most fundamental level.
When I say that the US Constitution is the finest document ever created by Man as a tool for a People of Liberty to self-govern, I have no doubt. Perhaps those who disagree with me would change their minds if they'd take a few minutes to read and understand the darned document, instead of loving the Supreme Court when they rule in favor of 2A and hating the Court when they rule Against 2A.
You see, folks, the Supreme Court has no business in 2A, or 1A, or HealthCare...not when it comes to nine people telling us what the Constitution means and forcing us to abide their will. If you cheer when SCOTUS crushes ObamaCare, you'd better not grumble when they support the next AWB. See, you've already bought into the premise. It was never set up that way to begin with...no matter what your school teachers, or the Establishment, or the Court may tell you.
If the Framers had wanted an Oligarchy, they'd have written a much shorter document.
Kerodin
III
Agreed!However I just can't believe slimebama threatened them publicly!
ReplyDeleteChina
III
...the Supreme Court has no business in 2A, or 1A, or HealthCare...not when it comes to nine people telling us what the Constitution means and forcing us to abide their will. If you cheer when SCOTUS crushes ObamaCare, you'd better not grumble when they support the next AWB.
ReplyDeleteAgreed.
The romanticized quote of Andrew Jackson on the ruling in Worcester v. Georgia, 31 US 515 (1832), in which the Supreme Court, under the leadership of John Marshall, declared Native Americans had a right to federal protection against enforcement of unconstitutional state laws describes best the actual power of the SCOTUS, even after Marbury v. Madison. Without voluntary compliance by a State or the federal government, the SCOTUS had no power. That fact has not changed; only governmental enforcement of SCOTUS decisions (when it suits their agenda/purpose) has. Truly, a SCOTUS ruling only has a much force as the various levels of government are willing to provide for its implementation.
Here's he myth quote purported to have been said by Andrew Jackson: "John Marshall has made his decision, now let him enforce it!"
Here's the actual quote: "...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate," meaning the Court's opinion was moot because it had no power to enforce its edict (not being a legislative body).Historian Robert V. Remini provides the Jackson quote writting in a letter to John Coffee,
(Side note on SCOTUS enforcement in the case: Georgia did obey the Supreme Court's substantive ruling, ordering the release of missionaries who had lived on Native American land without buying a required state license. Since Georgia complied, there was nothing to enforce.)
So, bottom line, so long as SCOTUS serves the interests of the government (pick the level you'd like), its decisions will continue to be enforced.
So...if you cheer Heller, you'll have to accept Obamacare or other mandates as 'the Supreme Law of the Land'.
And of Jackson, remember: President Andrew Jackson ignored the Court's decision in Worcester v. Georgia, but later issued a proclamation of the Supreme Court's ultimate power to decide constitutional questions and emphasizing that its decisions had to be obeyed.
Deletehttp://www.pbs.org/wnet/supremecourt/antebellum/history2.html
Just as you note: SCOTUS will be obeyed...so long as it is in the interests of the Government entity involved to obey.
K
Trainer....your excellant comments complement Mr. K's essay. Great job on your remarks. Thank you.
DeleteDAN III
Pennsylvania
Sam:
ReplyDeleteYou will confuse people with reality and facts.
Better to stick with dogma.
Nonthinking people are easier to manipulate.
:-)
That being said, this is a case where the enemy of my enemy is indeed my friend.
Realpolitik has its place, too.
-- CA
Thanks, CA. The sad thing is that today, all three Branches and both political parties are all actors reading from the same script. None will out the other, truly, because they rely on the duped masses to remain duped.
DeleteIt simply is not in the real-world interests of the Legislative or Executive today to reveal that the Judiciary is impotent.
The sparks may be fun to watch, though.
K
Fascinating! In the 41 years since I left the public school system, this is the first time that the true roll of the SCOTUS has been pointed out to me with Constitutional proof. Our public school system has been a liberal cesspool for more years then I had feared.
ReplyDeletePoint taken and true that!
ReplyDeleteYou gotta give team liberty a little slack, unfortunately it is what it is the Supreme Court has been making law since 1803 and will so until major change arrives.
Not making excuse, just stating the reality of where we are. Whether or not Obamacare passes or not will makes little difference in the over all scheme of this country's decline. It simply hastens it. As ineffective or meaningless it is, a little victory dance every once and a while feels good, even if it is vain.
Back to the point, your right!
Mozart: You are right - it is what it is and nothing is going to change until there is a real set of circumstances of significant magnitude to get the masses off the couch in their own interests.
DeleteAnd when that happens, everything will be up for grabs. Commies and Socialists and Dumbarses from every walk of life will try to grasp power and impose their will on the rest of us.
Liberty has one, slim chance.
Stay safe, and get more ammo. ;)
K
In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:
ReplyDeleteThere is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
Dakota: I find it fascinating that even Hamilton, who I fault for a great many of our problems today, who was a serious strong-government advocate (of his day), had genuine respect for the Constitution on this point, though he would have written it differently if he had the power.
DeleteWe do not have that sort of intellectual honesty in our politics today.
K
I'm aware that many take issue with the Marbury vs Madison decision and the doctrine of Judicial Review. I'm also aware that the Anti-Federalists placed more emphasis on trial by jury than on the judges themselves. Looking at the Constitution I carry around with me, Article III, Section 2 states in part: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..." It seems to me that the Supreme Court's jurisdiction is clearly stated, but that its powers are not. If the act of declaring an law to be unconstitutional is itself unconstitutional, how can the Judiciary restrain the Legislature from over-reaching itself? Is jury nullification the only tool in the box? What is the difference between a judge explicitly declaring a law to be null and void and simply ruling as though the law in question were not on the books?
ReplyDeleteA Reader: Yes, nullification is the answer, whether by Judge or Jury.
DeleteIf a member of the Judiciary considers a law to be unconstitutional, they can refuse to hear the case, or simply tell the defendant to go home. If the Executive decides to prosecute further, the case can work its way to the Supreme Court, whose decision is final, as far as that goes.
Nothing the Judiciary does can stop the Executive from enforcing a law or Congress from passing one. They can simply refuse to convict.
The Executive can refuse to prosecute.
Ultimately, the People can simply refuse to re-elect any Legislator or President as the final word.
Remember the key variable is the people in those positions of power being moral men and women of Liberty and genuine commitment to the Constitution.
The moment we lost that, we lost it all.
The moment we (our Founding Generation) refused to take arms over Marbury, our silence equated to acceptance.
K
Granted to all your points, including the popular interpretation of Marbury v Madison.
DeleteBut as a practical matter to the guy who keeps getting frog-marched back to jail by the executive, only to be released again by the judicial (said release controlled solely by the executive), over and over in the extreme case with nothing concluded either way, something has to change.
Tom
What guy? That is a straw-man argument that would be corrected by a moral people if it ever happened.
ReplyDeleteThe guy has a right to defend himself from unlawful arrest. His neighbors have a right to aid him. His County Sheriff has a role to play. His Mayor and Governor have roles to play. The voters have roles to play.
The frog-marching construct does not exist.
What exists is a far bigger problem, and real, so let's address that problem - the perception that the Court has the Authority to decide the matter for either other Branch or for We the People.
If you yield the point that Marbury is the problem, coupled with the perception of Marbury regarding the public, how do we fix that problem?
K
Not sure that it can be fixed with the current circumstances. We don't have a populace which can tolerate the responsibility that comes with a local militia and the actions you (correctly) suggest are necessary. As it is, government overreach (that frog-marching example) is just a Jerry Springer episode to everyone else.
ReplyDeleteThe only solution to that is a better populace, which I suppose will come with time one way or another.
Open to alternatives, though.
Here is the harsh reality as I see it: We will not get a better populace by educating the folks we have now. We need to evict those who don't get it.
DeleteThe best way to build a hard populace that respects Liberty is by the fire of struggle for it. The arithmetic is simpler to cull the current herd down to those who can respect Liberty, rather than to change hearts and minds.
And I think that solution is barreling toward us at Mach speed, is imminent, and will get the job done.
K
I'm confused - the Supreme Court cannot rule in a case that the law (the Constitution) was improperly and unlawfully applied to a person with standing to bring suit or defending against an accusation?
ReplyDeleteWhat possible role then does the supreme court have?
If the legislature passes a law, and a person does not comply with that law, and argues that the law is null and void, courts are bound to investigate the defendant's claim, and if they find the law is in fact null and void, they declare the defendant 'not guilty' by reason of the there being no crime, by reason the law they were charged with violating is no law at all and confers no authority, imposes no obligates, and creates no benefit.
Is this not the essence of 'judicial review'?
Maybe I'm just confused here.
Anon: You are not confused, you are simply now examining, perhaps for the first time, the premise of the paradigm under which you have lived to date.
DeleteYou understand "Judicial Review" properly.
But the fact is that the Supreme Court, in Marbury v. Madison, awarded the role of Judicial Review to itself.
The Constitution did not award that Authority to the Court.
When you look at the world through that lens, the whole picture changes, no?
K
"Nothing the Judiciary does can stop the Executive from enforcing a law or Congress from passing one. They can simply refuse to convict."
ReplyDeleteDo not courts have authority to issue writs and injunctions upon a pleading by a party with standing? Thus, a man may SUE (petition the court) to order a person (whether a natural person, or a corporation, or a government officer or agency, etc) to cease and desist certain actions, assuming the pleading demonstrates proper cause?
Furthermore, if a court has any purpose at all beyond a mere advisory body giving opinions of no force, then it follows that the executive is bound to enforce the decisions of the court unless those decisions are otherwise lawfully rendered void or moot?
Or am I still confused?
Anon: The Court is far more than a mere advisory body, and it has very important obligations, essential to the operation of the republic.
DeleteBut, it does not have, via the Constitution, the Authority of Judicial Review.
I think one of the keys is in another of Jefferson's letters when he mentions "...individual suitors..." as a focus of the Courts, in addition to the original jurisdiction articulated in Article III.
http://www.politicalruminations.com/2010/12/morning-quote-thomas-jefferson-on-the-intended-role-of-the-judiciary.html
And then factor in the 9th & 10th Amendments, and the scope of the Court gets fleshed out properly - equal to the Executive and Legislative, not superior.
But as we have discussed elsewhere, ad nauseum, none of this can work in a Government filled with immoral or amoral people, or with an immoral or amoral citizenry. The Constitution only works when the men and women in each Branch respect the document and their role in governance, and their fellow Citizens.
As Mr. Franklin warned: ...a republic, if you can keep it.
K
"You understand "Judicial Review" properly.
ReplyDeleteBut the fact is that the Supreme Court, in Marbury v. Madison, awarded the role of Judicial Review to itself.
The Constitution did not award that Authority to the Court."
Help me through this... If Judicial Review - the idea that a court can rule a defendant not guilty by reason of the charge being bogus because the law under from which the charges stem is illegal - is unconstitutional, the only remedy for an overreach of government is either 1)hoping the bought and paid for legislature will have a road to Damascus experience and change the law, or 2)the people rise up in civil disobedience.
Option one seems like pie in the sky, and option two seems contrary to the goal of having government at all...
Just thinking out loud here...
I think, ultimately, we need to come to grips with the fact that we need to quit looking for the HERO to come and save us, whether that HERO is one branch or the other of government.
Anon 11:10 - The HERO has always been intended to be We the People...
DeleteAlways.
One can't set a Government on autopilot and expect all to go well for 250 years.
Remember that what we are discussing has direct input from Thomas Jefferson. He was alive, indeed, he was sitting as President, when all of this was happening. He warned us for the rest of his life where it was all heading.
As I have always said: All of the answers we are seeking have already been answered at least once, by our Founders & Framers.
K
The constitution says - "...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
ReplyDeleteIf the Court has "jurisdiction ... as to law..." then the court has authority to rule on the law, does it not?
Or do I understand 'as to law' incorrectly?
Good question. Thanks.
DeleteDAN III
Pennsylvania
Seems the 10th Amendment is the key - judicial review is a power reserved to the States and/or the people...
ReplyDeleteThe arguments, or rather suggestions, upon which this charge is founded, are to this effect: "The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous. In Britain, the judical power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.'' This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact. - FP 81
ReplyDeletehttp://www.googlesyndicatedsearch.com/u/yaleu?domains=yale.edu&sitesearch=avalon.law.yale.edu%2F&q=supreme+court+federalist+papers&x=0&y=0
Get cracking...
Something that has always confused me, due to the trash we all were taught in school, is the "separation of powers" concept. I thought that this was a concerted, serious attempt by the authors of the Constitution to restrain each of the branches - Executive, Legislative, and Judicial - from being able to exert more power, or overrule, any of the other branches. If the executive branch has the only authority to enforce, why bother with the other branches? If the only protections from the Executive are the 10th Amendment and jury nullification, then why bother to provide for a separation of powers?
ReplyDeleteAnother thought: before we start whacking on those who do not support liberty, how do we separate out and keep safe those of us who seek liberty but have been misinformed, and have not yet gained a clear view of what is indeed properly Constitutional and what is not? Seems a lot of us have not yet thrown off the blinders placed on our eyes, our intellects, by the socialists who misled us in our public schooling, even though we desire with all our hearts to support true liberty.
RegT,
DeleteGet people to read. A good place to start is The Avalon Project... and make use of its search bar at the site.
http://avalon.law.yale.edu/
Good luck with that.
See, without actually reading and doing a little bit of studying, one may come away with a taste... but they'll never get the flavor.
One reason why the Founders are so misunderstood. Most people get a quote here and there. But to get the flavor, to get into their minds, one must actually read their writings. But EVEN MORE ... read their correspondence... not just to each other, but their wives and sons and daughters and friends.
Crap! I've got a case o beer and dancing with the stars is on!
Avalon is an outstanding resource. I have always maintained that all of the troubles we face have already been handled, and the answers are all in the study of our Founding.
DeleteRegT: I apologize if I came down harshly on those who are trying to work their way through the issues - not my intent. It was collateral damage.
My ire is directed at the energy that is wasted chasing Sparklies, especially when that chase is encouraged from within our own Community.
Sometimes my fire has all the subtlty and precision of a 12 gauge scattergun at 40 yards. ;)
K
No problem, Sam. I am taking Hillsdale's course and hope to have a better understanding after all is said and read. And I understand there is a real difference between those of us who are trying to learn and abide by the document and those who only urinate upon it.
DeleteReg: As you read and explore, as with everything else in life, be sure not to let Hillsdale define the Constitution for you any more than Barney Frank.
DeleteThis morning I heard Judge Napolitano declare (essentially) that Marbury is settled law. As a lawyer and Judge, why wouldn't he? He's a guy I find that I agree with on about 95% of topics...and on Judicial Review and the power of the SCOTUS to force their rulings, he and I disagree to absolute proportions.
Everyone has their own agenda and bias, and legitimate interpretations. Weigh it all, read it for yourself, and YOU must be the final arbiter of what it means, in YOUR life.
That's what We the People is all about. ;)
K
K
ReplyDeleteNo need to back off of your frustration. It is needed!!
Curtis, your insight and obvious work towards intent of our Constitution are sorely missed, however your comments are well articulated.
I think (as pollyanna as it is) this is how change happens, not by brute force but by critical thought. Even if we fail to change the course of America, it is not for lack of passion or vision, in the end when we are dead and gone, the victor may write history but truth will always prevail.
That truth that has been intentionally suppressed by all means possible, still rings true in some, it is why advocates for freedom have and still are fighting for that cause.
Mozart, thanks. I'm 53 years old. I am going to admit right here I am not as sharp and quick as I used to be. And sometimes my memory gets a tad wobbly. And although I have read a lot, I am no scholar. As for reason and logic, if someone provides me with an excuse, I try to take it to its conclusion. Maybe not always on the direct mark. Maybe not where the person who provided the excuse hoped it had gone. But there it is. My intent is not to tell anyone what to believe, but to get them to think. My belief is that liberty must have a compass. And if one wants to get to true North, then one must have a compass and know how to use it.
ReplyDeleteTo no one in particular...
Look. I'm going to tell you young ones a truth. It is going to be up to you young guys and gals to decide your future. And for those that have ears to hear... hear this: You must learn to use your brain before you use your weapons. Because I am going to tell you young ones another truth... Liberty, for the sake of the word liberty itself, is no liberty. If one can understand that, then well. If not, then go figure it out. Because if you don't, YOU WILL NEVER have liberty. And for those who don't think that their are absolutes in life... cause and effect, if one can not reason things out to their logical conclusion and accept its conclusion no matter how much it goes against what they WANT to believe, then you might as well hang up your hat and put your weapon in the crusher along with your pretense.
Those who have ears to hear will hear, if not... I have nothing to do with you.
Not hard.
What is the one common denominator that most EVERYONE on the field had in common? They watched the booboisie tube? Got on the internet looking for porn? Were in perpetual pursuit of snatch? Having nightly orgy parties? Wondering how they were going to pay for a... rubber? What? They read. What did they read? Go find out.
One of my favorite movie quotes is (paraphrasing) - "People don't talk like that anymore." Go learn to "talk like that."
Good advice to the young 'uns, Curtis. This is an interesting thread. I'm not sure if it should be titled, "A Close Look at Judicial Review" or, "The Inherent Contradictions of Rule of Law," or even, "How Words Can't Stop Bullets."
ReplyDeleteK, you wrote (similar to Napolitano), "All of the answers we are seeking have already been answered at least once, by our Founders & Framers."
Not to be rude, but since all of these answers have already been had--interestingly with opposite answers depending on whether you or Napolitano is doing the talking--how's that workin' out for you? Even granting your answers are the correct ones, I'm not sure I see the overwhelming benefit of them. Indeed, I'm quite sure I don't.
But Reg, it was your question that took the cake IMO. That's the mark of a wise man...what's the TRUTH? That's essentially what you were asking, and it's the only question that matters.
Here's the truth---they all got it wrong. Not the details, but the founding premise...what the hell EXACTLY are we fighting for? What is it we wish to achieve? What's the point of it?
Everyone here wants to be right and good, and for the most part they are. And yet every step forward yields two steps backwards. How can this happen to the right and the good? How can evil so easily win, even the intellectual battles, in the face of such reason and decency?
Simple...because the foundational premise is wrong. It never was about political freedom. It was always about YOUR life, and the life of each individual on Earth. That's it in a nutshell, but pay attention because it'll be fully explained this Sunday.
Jim: Are we not fighting for the most Liberty possible in the real world?
DeleteIn that context, the "Truth" is that delegating absolute control to any panel of 9 people is anti-thetical to the goal.
What am I missing about Sunday?
K
"In that context, the 'Truth' is that delegating absolute control to any panel of 9 people is anti-thetical to the goal."
ReplyDeleteYes, I agree. Now explain how there can be Rule of Law without something similar. Obviously the particular number doesn't really matter, right? How shall you have your Rule of Law without an ultimate arbiter of its meaning?
Don't misunderstand. The concept of objective codification of both individual freedom and that which consists of its abridgement, is a wonderful imagination. But that's all it is and ever will be...an imagination.
You and I may agree beforehand how to handle a potential dispute in a civil manner, but what if Joe doesn't agree? Obviously if Joe resorts to force, then we know what to do. But what if he doesn't, and still doesn't like our method of dispute resolution? I don't see how you'll ever get out of that conundrum without forcing Joe to go along, and then you've defeated the whole goal from the get-go. Me, I say Joe can go live somewhere else, and have my best wishes to boot.
You can't miss anything about Sunday, until Monday!
"What am I missing about Sunday?"
ReplyDeleteJust in case you didn't catch it elsewhere...
http://selfadoration.com