Posted on 04/07/2018 10:49:08 AM PDT by ProgressingAmerica
Founding Father Patrick Henry famously proclaimed "I smell a rat!"
What did it smell like? What was that rat's name? What was the rat's color: brown or grey? What was the rat's purpose? The rat's purpose really is the only important question here. I asked the other questions mainly in jest.
Welcome to the 6th and final posting in this series examining the claims that progressives make in regard to Marbury vs Madison. In parts 1 through 5, I mainly examined some of the inconsistencies relating to the progressives' claims. Here in part 6 I highlight where the problem actually exists. To put it simply: It's not Marbury that's the problem, it's the Incorporation Doctrine.
So, let's start here: what was the rat's purpose? In 1789, not everybody was so willing to trust the newly formed Constitution that had just been forged in Philadelphia. The rat, Henry believed, was a move toward tyrannical government. This post directly relates to the last posting in this series, in that the purpose of a bill of rights is central, and its purpose is as a limitation.
Why did Patrick Henry and others demand a bill of rights? In Patrick Henry's view, the Bill of Rights was necessary because it's function, it's only function, was to limit the power of the general government about to be established. Henry believed the Bill of Rights to be rat poison.
But wait a second. The courts tell us that because of the Incorporation Doctrine, the Bill of Rights UNLIMITS the government's power to command the states? What would Patrick Henry think of that?
What would Patrick Henry say about the courts invention, this Incorporation Doctrine, which they claim is related to the 14th amendment,(but in reality is not, read the debate notes when they created the 14th amendment) and now the Bill of Rights is being used as a weapon against the very states he wanted to protect, with the very same Bill of Rights!
Think of that. Patrick Henry must be rolling over in his grave in the context of the notion of this Incorporation Doctrine. So for those who may not know, what is this Incorporation Doctrine anyways? Here is how the lawyers at the American Bar Association describe Incorporation:
“Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government,” wrote the Court.
Emanations and penumbras, my friend, emanations and penumbras. Notice the slimy language of this quote? It says "enforceable against them" ("them" being the states) and also "against the Federal Government". Now I may have been born last week, but I'm not a fool. Which court wrote this anyways? Oh yeah, the Supreme court. That's from the case Mapp v. Ohio. But there's just one problem with this. This is a Federal court saying this. So no, the Bill of Rights in the Federal Constitution is not being used both ways, it's expressly being used as a weapon against the states and only the states. Don't think I'm stating my case properly?
What's the most notorious incorporation case in U.S. history? If you said Roe v. Wade, you are correct. A cursory examination of the effects of Roe lead to an undeniable truth: Roe has placed no limitations upon the federal government. The feds have found nearly unlimited powers at the expense of the states and localities. There's nothing limiting the feds here, they are unlimited!
The point is this. The progressives are fantastic liars. They have many people hating on a case, Marbury v. Madison, that is (if you read the text of Marbury) not in any way related to the judicial problems we currently have. Judge Marshall specifically states just the opposite: We judges do not have the power to make law as we choose. What that means is that America would be a great place if we lived in a Marbury world, but we don't. We live in an Incorporation world.
The Bill of Rights exists expressly and solely to limit the power of the federal government and allow the states to flourish. But since the creation of the Incorporation Doctrine, the Bill of Rights exists expressly and solely to steamroll the state governments. Take a look at another Incorporation case, Everson v. Board of Education with its misquoted "Wall of Separation". How would Patrick Henry, a deeply Christian citizen, how would he respond to not only the perversion of the Bill of Rights into a weapon against his state and other states, but used expressly as a weapon against the faithful? When the Bill of Rights was first submitted to the states, there were 12 recommendations. But it wasn't just a randomized list of 12. It also had a preamble. That preamble states:
The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best ensure the beneficent ends of its institution; (source)
Did you notice that the only capitalized word is "Constitution"? Read the source, that's not my work.
The problem we have is not Marbury. It's incorporation. The Incorporation Doctrine takes the 14th amendment out of context, it takes the Bill of Rights out of context, it completely ignores the original stated purpose of the Bill of Rights per this preamble, and it takes most of our other Founders' writings out of context as well. Consider this: When the Supreme Court cited Jefferson's Danbury letter in the 1878 Reynolds case, how many words did they quote? One hundred and thirty five. How many words of Jefferson's Danbury letter were used in the Everson case? Eight. That's all, just eight. They will take whatever out of context that they have to if it justifies their social justice cause.
With the Incorporation Doctrine, the Bill of Rights gives the federal government unlimited powers to lord over the states and ultimately, to lord over you. That's not what the Founders intended. That's not what the preamble indicates. That is more than anything else, was what Patrick Henry feared. Henry's proclamation may be the most visible personal example of the fears our Founders truely felt, but not a single one of the Founders had it in mind for the Bill of Rights to be used to squelch the states. The Bill of Rights was invented was to squelch the general government.
As I stated toward the beginning, Henry found a rat, and he believed the Bill of Rights to be rat poison. But because of the Incorporation Doctrine, the Bill of Rights is now poison for the states and food for the rat.
Part 2: When did the courts stop looking at Marbury v. Madison as "that mandamus case"
Part 3: Is "Judicial Review" a negative power or a positive power?
Part 4: Marbury v. Madison: Was the 1789 Judiciary act actually unconstitutional?
Part 5: What is the purpose of a bill of rights anyways? To expand government? Or to limit it?
Any doctor will tell you: If you want to cure a disease, then you have to accurately diagnose it.
As long as Marbury is pointed to as the problem, progressives will keep winning. We have to fix this. The doctrine of Incorporation is the problem, not Marbury.
Patrick Henry was the leading opponent of the Constitution at the Virginia Ratifying Convention, and voted against it. His side lost 89-79.
He later turned down offers to become Secretary of State, and a Justice of the Supreme Court, on the grounds that he still didn’t approve of having a Federal government.
No, the progressives aren’t telling the truth about Marbury.
Marshall outlined that the obligation to review various acts of government arose because of the oath of office, saying that to require such an oath and subsequently require Justices to close their eyes to the Constitution and see only statute would be worse than a solemn mockery.
He also wrote that the ratification of the Constitution, to act upon the original right to make Law, established permanent principals, which means more than just the appearance of words on paper divorced from any hint of what those who Ratified it can be said to have agreed to.
So right off the bat the whole modern method for judicial review is based on a lie, for an obligation that arises as a matter of faithfulness, of fidelity to a particular sense of the thing being faithful to, is not a Power to make shit up as they go along, by whatever fashions of legal theory may be currently popular or to build upon past opinions as if the Justices were empowered to ADD margin notes to the writ of the Constitution and forever thereafter redirect anyone seeking after the Law to their traditions even when those expressly contradict the Law.
The Court acts as if their opinions may be used in place of Amendments, that they may be used constructively to make Law as if they possessed the original right that Marshall wrote of. Oh, they are craftier than just saying that outright which is why FDR’s mouthpiece described the Law that forbade a Social Security program as a tradition rather than a Law, for if it was Law the court was bound to the Law but if they accepted it merely as tradition then they could substitute a different new tradition of their own, one agreeable to the Administration.
Or, put another way, the obligation to review is only destructive of acts of government and not a power to constructively add to the scope of government’s powers.
There is more though to the deceptions which the modern Court operated in.
First, though it may seem merely a point of order, Marbury was NOT the decision which found review of statute by the Court lawful. That distinction belongs to an earlier case cited at length by Marshall in Marbury. As previously stated Marbury in part hinged on this obligation BUT it was concerned with justifying at length acting on the obligation to be faithful and not propounding the idea that review was even to be considered.
BUT MORE DAMNABLY, the modern Court operates as if Marbury only justifies review FOR THE COURT, of “judicial review” only as if it were the sole property and prerogative of the Court. It is in fact an obligation to fidelity to examine the acts of government for all branches of government, with similar prerogatives, and this truth should be seen as part and parcel of Marbury.
You see, having justified the previously accepted obligation of review on the backs of the oath of office we in fact find Marshall expressly noting that officials in other departments take the same oath.
So let me ask you: if it is worse than a solemn mockery to require both such an oath and also that the Court to close its eyes to the Constitution and see only statutes then WHAT is it to require Congress and the President to also take that oath and also close their eyes to the Constitution and see only the opinions of the Court?
It is not “judicial review” but just “review” that is proper. And still it is only one destructive to acts of government and not one constructive to permit novelties.
Which brings up the last leg of the stool that lets it stand up: when the federal steals a power reserved to the States or the people by the 10th Amendment these MUST have standing to challenge the abuses or misconstructions! Frothinghan v Mellon is as great a piece of tyranny as has ever come from the Court for in it the Justices told the people to shut up and keep to their place. The right to pursue a private prosecution of a public right should be inviolable, a necessary individual liberty.
Challenging the federal is not just for the States.
And that only gets to the tip of the iceberg for how profound the lies and deceptions of the Left really are.
Yes, incorporation is a crap piece of legal theory. It is provable that the purpose of the “privileges or immunities” clause of the 14th Amendment was to enumerate a Power to Congress to enact specific privileges or immunities that the several States could not disparage.
The “Privilieges and Immunities” that were common among all the several States when the Constitution was Ratified were to have been secured by A4:S2:C1 but, and here’s the rub, if a State did not fulfill the obligation to honor these the Congress could do nothing about it directly but had to wait patiently on the uncertainties of the Court, not just that suits would be brought but that the lawyers wouldn’t be nitwits and argue the wrong parts of the Law (as had in fact happened) and this lose their suit.
With the Ratification of the 14th and the “privileges or immunities” clause Congress no longer needed to wait on the Courts but had a recourse to act directly.
Moreover, the “privileges or immunities” that exist only because of federal statute may but need not bear resemblance to the Priviliges and Immunities that A4 addresses. Which is just to say that these aren’t a specific body of rights possessed among all the several States when the Constitution was ratified. They can be, and in fact all those in the first CRA were, but they need not be.
Still, and this is important, mere acts of Congress, statutes, can be removed by other acts of Congress, statutes. This would be distinct from needling an Amendment to remove some P&I.
As proof I would point you to the Slaughterhouse opinions and to the dissent of Justice Field. Why to a dissent?
Because in that dissent Field was laboring to argue why the butchers of NOLA should receive relief sought BUT he had to admit to the actual intended function of the “privileges or immunities” clause ... admit because it was then common knowledge and the water’s had not yet been muddied by writer’s speaking out of turn after Ratification, contradicting what those who had Ratified can be said to have agreed to (Hamilton did much the same when he spoke out of turn, contradicting after Ratification what he and others had told those with the Power to Ratify before they ratified). This I would qualify as a statement against interest, for it destroys the very point that Field had been trying to make.
The problem was that the nitwit lawyers for the butchers of NOLA had argued the wrong part of the Law, for they should have argued based on A4:S2:C1 and at least then they would have had a decent chance, one even Marshall would have possibly been open to had he still been around.
” If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw ; government that has abandoned all its powers ; the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights ; without check, limitation, or control. And still you have checks and guards; still you keep barriers ; pointed where? Pointed against your weakened, prostrated, enervated state government!
You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!
You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful!”
http://teachingamericanhistory.org/ratification/elliot/vol3/june16/
"So right off the bat the whole modern method for judicial review is based on a lie"
Is it? Or is it that judicial review gets scapegoated?
The more I look into things, it doesn't appear to me that judicial review is judicial review. The Incorporation Doctrine is judicial review.
I realize that that sentence is somewhat nonsensical in its construct, but I am writing it that way on purpose to drive the point home. There's a 100 year gap here.
"The Court acts as if their opinions may be used in place of Amendments"
They do, but they didn't start acting this way as a ramification of Marbury. The timeline doesn't support that contention. They started acting this way as a ramification of Incorporation. That's why I made the point that the Incorporation is judicial review, not judicial review. We're looking in the wrong place.
The timeline is very hard to ignore. There's too many big gaps.
To all: I just want to be clear, I'm not really all that favorable to Marbury,(though the text of the ruling is actually quite good) as much as I am favorable to challenging the lies that progressives tell. The progressives all point to Marbury. Why should we trust the progressives? There's no grounds for this tale. I truely believe the progressives DO NOT want, under any circumstances, a deep and thorough examination of the Incorporation Doctrine. That would blow up too many of their myths.
See here: http://www.freerepublic.com/focus/chat/3528726/posts
https://archive.org/details/DebatesThatLedToTheCreationOfTheFourteenthAmendment
In the first paragraph, it sounds like he is talking about the need of a bill of rights for the newly formed Constitution/general government.
In the second paragraph, it sounds like he is referring to the state Bill of Rights - in this instance the Virginia Bill of Rights.
He is juxtaposing how Virginians are protected by the VaBOR, but nobody would be protected from the general government unless a similar BOR were enacted.
Do I have that about right?
Bump
Indeed. The 14th Amendment represents a Law that is very similar to the intent of the commerce clause: that by means of it Congress could use its own delegated power destructively to prevent the States from using their rule making and police powers to the harm of (notably) the Citizens of the several States.
But neither were intended to federalize all commerce laws and all rights and place them under the jurisdiction of the federal, the Court in particular, in all circumstances whatsoever.
Nothing about the Commerce clause was intended to let Congress tell We the People what we could or could not do when engaging in commerce (either within a State or among the States) and no aspect of the 14th or federal civil rights lawfully has any application to non-State Actors.
These we not to given them power over the people but to be used to restrain excesses of another level of government, to reduce the powers or abuses of these.
Incorporation instead has lawlessly transferred all matters of rights to the federal, and to the Court in particular. And it has done so through a process consisting of a long train of abuses so that the federal now writes rules governing non-State Actors.
Just as the misconsuction of the commerce clause has been used to let the federal even go so far as to say it has prerogative to regulate things which, though they may facrually not even BE commerce — never mind not being commerce among the states — in all circumstances whatsoever.
Thanks for the ping.
In case anyone hasn’t seen it, here’s not the conjecture, but the actual opinion, of Judge Bork, Constitutional Scholar, concluding that, “The rather sweeping mandate [of the so-called Incorporation Doctrine] must be judged counterfeit.” To that I say “Amen”.
From Bork’s “The Tempting of America”:
“The fourteenth amendment was adopted shortly after the Civil War, and all commentators are agreed that its primary purpose was the protection of the recently freed slaves. As we have seen, of the amendment’s three clauses, two have been pressed into service of judicial imperialism - the due process and equal protection clauses - while the third, the privileges and immunities clause, has remained a cadaver that it was left by the Slaughter-House Cases. [ ]
“The fifth amendment’s due process clause, which applied only against the federal government, was later copied in the fourteenth amendment, which applied to the states. ‘There is general agreement that the earlier clause had been understood at the time of its inclusion to refer to lawful procedures. What recorded comment there was at the time of replication in the fourteenth amendment is devoid of any reference that gives the provision more than a procedural connotation’ (J. Ely, “Democracy and Distrust” (1980) at 105-16). That is true, and it is more than enough to condemn the hundreds of cases, stretching from Dred Scott to today, in which the courts have given the due process clause substantive content in order to read their own notions of policy into the Constitution.
“Ely’s attempt to make the privileges and immunities clause do the work that has been improperly assigned to the due process clause is, however, unsuccessful. He points out that ‘there is not a bit of legislative history that supports the view that the Privileges or Immunities Clause was intended to be meaningless’ (Id. at 103). That is hardly surprising. One would not expect ratifying conventions to enact a constitutional provision they intended to mean nothing. But that hardly solves the problem, and the problem is that we do not know what the clause is intended to mean.
“Bingham and Howard meant these additional rights [taken from Corfield v. Coryell]. That the ratifiers did is far less clear. Certainly there is no evidence that the ratifying convention intended such power in judges, and it is their intent, not the drafters’, that counts. Nor is it easy to imagine the northern states, victorious in a Civil War that lead to the fourteenth amendment, should have decided to turn over to the federal courts not only the protection of the rights of freed slaves but an unlimited power to frustrate the will of the Northern states themselves. The only significant exercise of judicial review in the past century had been Dred Scott, a decision hated in the North and one hardly likely to encourage the notion that courts should be given carte blanche to set aside legislative acts.
“Had any such radical departure from the American method of governance been intended, had courts been intended to supplant legislatures, there would be more than a shred of evidence to that effect. That proposal would have provoked an enormous debate and public discussion.
“We know there is no evidence that the ratifiers imagined they were handing ultimate governance to the courts. We know that a constitutional revolution of that magnitude would have provoked widespread and heated (to put it mildly) discussion but there is no record of any such discussion. The rather sweeping mandate must be judged counterfeit” (R. Bork, The Tempting of America (1990), excerpted at 180-83).
ou have it exactly right. I love Henry’s oratory but admit that after 200+ years it can be hard to follow.
Ironically, the federal courts have turned Henry’s BOR into a tool against the “weakened, prostrated, enervated state government”.
The Virginia Ratifying Convention is an excellent source for Federalist/Anti-federalist debate as the issues were well formed by then.
7 generations is a frequent measure in religion, myth, and history. The Constitution is at that milestone.
I nust point out that ‘judicial review’ is solely a function of the courts if punishments are to be meted out since they are the only ones who can do so.
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