Posted on 02/23/2018 4:05:34 PM PST by ProgressingAmerica
Progressives claim that judicial activism was born with John Marshall's most well know ruling.
But we all know that progressives don't tell the truth. So then what actually is Marbury all about, and what are its true results?
Since progressives are not honest, where did judicial activism truely get established? What is the difference between judicial activism and judicial review?
Ping
Marbury v. Madison is a terrible decision.
It marks the beginning of the courts exceeding their role authority in the system of check and balances.
"Judicial activism" has no real fixed definition-- it means judicial review that results in a decision you don't agree with. Conservatives think that court decisions striking down gun control laws are great; liberals call them "judicial activism." When it comes to court decisions striking down gay marriage bans, the roles are reversed.
But does it really?
The progressives have told us all for so long that Marbury has the courts exceeding their authority, but I am not sure it does. I think the progressives are lying about this.
Probably the biggest issue of Marbury is the issue of writs of Mandamus. Now I may structure this next sentence a bit wrong, but Marshall’s contention is that Congress tried to amend the constitution(Art. III) with the 1789 judiciary act.
If congress acted unconstitutionally, then Marshall did the right thing, and the progressives have been blowing smoke our direction for a century and getting away with it.
Hylton is kind of where I am going with this. Only one of many places though.
Strictly speaking, “judicial activism” is when the courts start inventing their own laws, as they did in (for example) Miranda v. Arizona. It’s the law of the land. Except, it’s not. There’s no laws here.
The real reason I suspect the progressives have attached themselves so firmly to Marbury is because of 17 little words. Yet if you put Marbury into a word processor, it is well over 9000 words.
Those 9000+ other words are to our benefit. The challenge is getting them into circulation.
Blog pimp
Post it all
This so-called "activism" is not insane. It was the intent of the framers, so says Hamilton in Federals #78 where he writes "The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
Bump
Pinging LS
Would you be willing to weigh in on this one? Interested in your perspective. I’ve wondered about this a lot! Thanks!
There quite a number of examples of judicial activism in the Bible.
There is a political backstory to this. In the election of 1800, Jefferson's Republicans defeated Adams' Federalists and took control of the presidency and the Congress. Under the Constitution as it existed at that time, the election was in November but the new President and Congress didn't take office until March.
Before the Republicans could take office, the lame-duck Federalists, fearing that they would be shut out of power, passed legislation vastly increasing the number of federal judges, including increasing the size of the Supreme Court, and Adams quickly appointed a slew of judges who were quickly confirmed by the lame-duck Federalist Congress. One of these judges was Adams' Secretary of State, John Marshall, who was appointed Chief Justice of the Supreme Court.
Jefferson, fearing that the Federalist judges would frustrate his policies, began spreading the story that judicial review was an illegitimate power not contemplated by the Constitution.
Thanks. Interesting details.
Yes, several of you have it here.
Hamilton and others realized that ultimately SOMEONE had to decide what the words in the Constitution meant. Seems like common sense, but as we see in these early cases, it isn’t.
Interestingly, “judicial activism” and the USSC as seeing itself as the final arbiter very seldom happened in the 1800s until after the Civil War. Of course, there are big notable exceptions such as Dred Scott.
One of the biggest cases never came before the court, the co-called “mill acts” that held that one man’s private property rights can be superior to another’s if the first man is engaged in doing something for the common good. These were settled in multiple state courts ruling in favor of “developmental rights” vs. pristine property rights when mill owners would dam up rivers for water power to run their mills . . . that provided bread to all. People complaining their land was altered had their claims rejected.
What is the rationale you would prefer the court to have taken?
I did post it all.
Marshall actually goes one step further. Not only is the court powerless to hear because of COTUS, but how the 1789 act is written, congress violated the separation of powers and encroached into the judiciary.
Constitutionally speaking, Marshall didn't have much choice but to strike the judiciary act down.
This is where the dishonesty of progressivism becomes so glaring. Progressives tell us that the Marshall court usurped, when it seems that the court merely prevented congressional usurpation without leaving its own proper sphere. The whole point of separate powers is for each branch to fight back if the other steps out of line, and seek a return to balance.(or at least one of the major points)
Marshall never once claims that he is greater than the constitution; likewise Marshall never claims that the supreme court is greater than the constitution or congress. Even including those 17 words that the progressives are so fond of taking out of context. But he does explicitly state at least once if not several times: You people in the congress are not greater than the constitution, so sit back down. He also explicitly states that the constitution is above both congress and the court.
The court was wrong to presume upon itself the power to declare an act of Congress to be “unconstitutional.
If I get your drift, the court should have found congressional act superior to the constitution.
No matter which way we go, there is a possibility of mischief.
There is something to be said for driving that tipping point back to the people before it gets too big.
The thing is, the Congressional Act could have been repealed by the people’s representatives in Congress. Congressmen are answering to the voters
Once a court has interceded however, the resulting harm is very difficult to undo. SCOTUS believes they are answerable to no one.
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