Posted on 02/25/2018 12:00:52 PM PST by ProgressingAmerica
In part 1 of this series, I asked one very simple question: "Are progressives telling the truth about Marbury?"
Since we know that progressives don't tell the truth about anything, then we have to start from square one. Why this is important, is progressives have long linked judicial activism to Marbury as the home of every scheme they've devised, but the more I look into it, the less I can see this is true. And if Marbury is not the source of the problem, then we need to identify the real cause. You don't stop cancers with flu medicines and bandaids.
An interesting thing occurs if you look into some of the past court rulings and how/why they either reference or cite Marbury. For clarity, I use "reference" to mean that the judges are aware of Marbury, they are talking about Marbury, but it doesn't necessarily have any direct bearing and its not being used to move the ball down the field. I use "cite", on the other hand, in the context as how Marbury is used in the case Cooper v. Aaron: they cited Marbury as a direct order of precedent for their current action in the case.(My use of cite/reference may or may not be how it is legally used)
Now, progressives tell us today that Marbury is so important, it's such a pinnacle, it granted all of these wondrous powers and it even delivered a new loaf of bread to boot. But then why did the courts for so many years merely look at it as some compartmentalized mandamus case with no other real context? Take for example the 1838 case of Kendall v. United States and others; Mississippi v. Johnson (1866), Ex Parte Bollman and Ex Parte Swartwout (1807), Kendall v. Stokes (1838), United States v. Schurz (1880), and Poindexter v. Greenhow (1885).
In some cases, such as Insurance Company v. Comstock (1872) and Reeside v. Walker (1850), Marbury is nothing more than a footnote at the end of the decision, as opposed to a more central part of the opinion/dissent reasoning.
You will notice by the dates above, that I focused in on cases that existed prior to the perversion of progressivism. Prior to basically 1900. I am sure there are other court cases, but you get the point.
I do want to make it plainly explicit here, I am only taking a cursory look into cases which are coming into contact with Marbury, and looking at what these cases are saying and the context of how they are saying it. Some of these cases are thousands and taken together tens of thousands of words long - I haven't read all of these word for word. However, it does stand to reason that we have a huge gap between 1803 and the 1930s before the courts truely start becoming this out of control monstrosity. Well Marbury wasn't decided in 1929!! So why the gap? Why does this over 100 year gap exist between when the courts supposedly went out of control, to when they finally decided to go out of control? Shouldn't this big black hole gravity-well be nonexistent? Shouldn't it be 1805 and 1809 when all of this is occurring, and not 1958? None of what the progressives assert makes any sense at all when closely examined, particularly with a calendar in hand.
Now in most instances, a mandamus case that is about mandamuses is going to cite Marbury in the context of mandamuses. But outside of the context of mandamuses, it appears to me that the first case that actually cites Marbury in some meaningful manner is the case Mugler v. Kansas. (1887) So you mean to tell me that Marbury was stuck in the mandamus box for 84 years? Yes, Mr. Progressive, that Marbury case is such a pinnacle of judicial activism!
The Bollman Swartout case is a particularly amusing read, at least a line like this:
The original jurisdiction of this Court is restricted to cases affecting ambassadors or other public ministers and consuls and those in which a state shall be a party. In all other cases within the judicial powers of the union, it can exercise only an appellate jurisdiction. The former it possesses independently of the will of any other constituent branch of the general government. Without a violation of the Constitution, that division of our jurisdiction can neither be restricted or extended. In the latter, its powers are subjected to the will of the legislature of the union, and it can exercise appellate jurisdiction in no case, unless expressly authorized to do so by the laws of Congress. If I understand the case of Marbury v. Madison, it maintains this doctrine in its full extent. I cannot see how it could ever have been controverted.
Because, clearly, the courts looked at Marbury as a limiting factor, and not one that grants all of these wondrous powers and a loaf of bread. This is also the case where I got the line "the mandamus case" from, as if Marbury wasn't viewed to be all that consequential at all to prior courts. "Oh that was just that mandamus case, that was no big deal. Moving along." And just the fact that it was viewed as a mandamus case only, also brings its own limitations. Kendall uses similar language:
On the legislature was imposed the duty to give it effect; it was wide as the land, and extended to every portion of it, and by the Judiciary Act of 1789, section 13, Congress attempted to invest the Supreme Court of the United States with the power to issue writs of mandamus to persons holding office under the authority of the United States. But the Constitution having restricted this Court to the exercise of certain original powers, and this not being amongst them, it was holden in Marbury v. Madison, l Cranch 137, so much of the act was void.
Isn't it interesting? Everybody wants to be limited by and to the Constitution in the earlier years.
Now I can only imagine that some will reply "Yes, but, that's only because the courts did not at first realize what they truely had on their hands." Is that so? Or is it that the progressives went on a treasure hunt way after the fact for anything that they could take out of context, to justify their usurpations?
I lean strongly toward the second.
Ping.............
In case any of you are interested, here is a continuation of the discussion.
I was taught (in many classes) that the French Revolution was a great thing and, although different, was every bit as glorious and wonderful as the American Revolution.
But it wasn't. It was a bloody socialist massacre which led to a military dictatorship.
I was taught (in many classes) that Marbury v Madison was a great court case which instantly transformed this nation's understanding of what the Supreme Court would be.
But it didn't do that. That's a later interpretation. It's a way of using the SCOTUS in the 20th century in a new way, while simply pretending that "we've always done it this way".
We've all been sold a bill of goods, on many topics. The country we are living in today is NOT the country the Founders meant for us to have.
While time consuming, this practice was extremely educational.
The most blatant misuse I found was of Presser v. Illinois; but misuses are not limited to RKBA cases, not by any stretch.
I agree, particularly with the “we’ve always done it this way” notion.
To a certain degree, that’s what makes being a citizen historian so easy. The lies have become so big that they have more holes in them than swiss cheese.
And we have far too many among us who don’t ask deep enough questions. Many topics at this point are low hanging fruit.
The vast bulk of my education and work was on technical subjects (STEM), and that doesn't carry the BS baggage that is prevalent in the social arts. Naturally kept distant from the societal subversion that had been going on. Somebody gave me a Robert White Duck Book in the late 1970's, which piqued my interest.
The fringe is getting longer these days ;-)
I am so tired of this attempt to argue that the supreme Court does not have a legitimate power of constitutional review. That is a power express in the Constitution and one that was intended so says Alexander Hamilton in Federalist #78.
Folks who don't like activist judges need to get over it. The disease is not the Supreme Court but in the political branches that fail to nominate and confirm judges who will adhere to the laws.
Exactly what powers do progressives say Marbury granted?
As I recall, the exact words “abuse of discretion” were used in the opinion.
Slightly of Topic...
I still don't understand why no immigration hawks - except me - have criticized Donald Trump for his political and legal sleight of hand on the DACA issue.
In 2015, in his first campaign speech, Trump promised to “end DACA immediately.”
More than two years later, we discovered that Trump's "plan" to end DACA was to have A.G. Jeff Sessions declare DACA unconstitutional.
Obviously, no federal court in America is going to allow the A.G. to declare anything unconstitutional, since that clearly falls under the power of the judiciary.
What is completely amazing to me about the DACA issue is that no one - except me - ever points out that Trump could “end” DACA with a two sentence Executive Order:
“The Immigration Act of 1965 states that the DACA recipients are unlawfully present in the USA. Consequently, I order the Secretary of Homeland Security to remove them.”
No federal court in America could even review that Executive Order.
Unfortunately, it has become obvious to everyone that Trump is never going to write such an E.O.
Final Point...
Many readers at Free Republic seem to think that DACA will “expire” in March 2018.
That is completely wrong.
Except for a couple changes ordered by the Ninth Circuit judge, Obama’s DACA is still the law of the land.
Get your hands on a copy of “The Commerce Clause” by Felix Frankfurter, circa 1937 or so. He details a turn of the century speech by a Harvard dean of the law school or some such putting forth the liberal interpretation of Marbury.
"and that courts, as well as other departments, are bound by that instrument."
Judicial activists and judicial review aren’t the same thing.
My point is that judicial review was in the constitution and intentionally so. As Hamilton explains in Federalist #78, a principal function of the judiciary is to interpret the law, especially when statutes are in conflict. If the constitution is the supreme law of the land, then a statute that deviates from the constitution can have no legal effect since any valid legal construction weights the constitution over the intent of the legislature rendering the extraconstitutional measure moot, e.g. "unconstitutional." The cure to judicial activism is political, not constitutional revisionism.
Are you saying the Presser case was misused, or Presser misused cites?
The former. That the Presser case is cited as saying the opposite of what it says.
See this May 28, 2009 post that quotes a part of Bach v. Pataki, 408 F.3d 75 (2d. Cir. 2005) that cites Presser ...
Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States.
Note the exact language used by the 2nd Circuit, "the right of the people to keep and bear arms" being a right only "against" the feds. I do agree, by the way, that it is proper to view the government and the courts as "against" the people. See the Bach decision for crystal clear evidence of the rank dishonesty used to disarm the public.
Here is what the Presser case says ...
the states cannot, even laying the constitutional provision in question [2nd amendment] out of view, prohibit the people from keeping and bearing arms
Thank you! I read your 2009 post and it is enlightening.
I read this some years ago about the dishonest cites by various courts of Miller:
http://guncite.com/journals/dencite.html
The dishonesty is stunning. And I was a little dense because it was a while before it occurred to me that this must happens in many areas besides RKBA issues.
FReegards
SCOTUS said it couldn't decide the Miller case because it didn't have, on the record, any evidence that a short barrel shotgun was or was not a sort of weapon used by the military.
And I'm not happy at all with the game that Scalia played in Heller. By Scalia's logic, a long standing unconstitutional ban becomes constitutional when the courts allow it to stand for a long time.
The situation is even worse than you imagine. The appellate courts are the tip of the iceberg. The attitude of trial courts about getting the law wrong is "you know how to take an appeal," knowing few defendants have the time or money to do so.
The court system is just as corrupt as Congress. Massive house of cards. Tons of outcome-oriented jurisprudence used to elevate the feds into a position of superiority over states and the people. The institution is a moral disgrace, IMO.
Yes. And we have gone so far down that wretched road that I don't see how we turn around and backtrack, what with stare decisis and all.
Use of stare decisis to defend an erroneous path just compounds judicial error.
See Scalia's dissection of SCOTUS in Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Surely, if "[t]he Court's power lies . . . in its legitimacy, a product of substance and perception," ante at 865, the "substance" part of the equation demands that plain error be acknowledged and eliminated. ...Not to say the path of deliberately subverting the constitution will be reversed (it's in the courts interest to claim more power, and there is no practical downside to over-reach), but if it ever decides to come clean, reversing can take many forms, from frank and honest admission of past error and sudden return to correct principles, or some incremental crawl-back. The court has complete control over its own fealty to the constitution and fundamental honesty.The Court's reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, but only to what it calls the "central holding." It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and-throw-away-the-rest version. I wonder whether, as applied to Marbury v. Madison, 1 Cranch 137 (1803), for example, the new version of stare decisis would be satisfied if we allowed courts to review the constitutionality of only those statutes that (like the one in Marbury) pertain to the jurisdiction of the courts. ...
The Imperial Judiciary lives.
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