Posted on 09/25/2010 5:55:09 PM PDT by Jacquerie
You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.
Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is "boni judicis est ampliare jurisdictionem, '' and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.
The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co-sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in congress, the judges cannot issue their mandamus to them; if the President fails to supply the place of a judge, to appoint other civil or military officers, to issue requisite commissions, the judges cannot force him. They can issue their mandamus or distringas to no executive or legislative officer to enforce the fulfilment of their official duties, any more than the President or legislature may issue orders to the judges or their officers.
Betrayed by English example, and unaware, as it should seem, of the control of our Constitution in this particular, they have at times overstepped their limit by undertaking to command executive officers in the discharge of their executive duties; but the Constitution, in keeping three departments distinct and independent, restrains the authority of the judges to judiciary organs, as it does the executive and legislative to executive and legislative organs. The judges certainly have more frequent occasion to act on constitutional questions, because the laws of meum and tuum and of criminal action, forming the great mass of the system of law, constitute their particular department.
When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves ; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power. Pardon me, Sir, for this difference of opinion. My personal interest in such questions is entirely extinct, but not my wishes for the longest possible continuance of our government on its pure principles; if the three powers maintain their mutual independence on each other it may last long, but not so if either can assume the authorities of the other. I ask your candid re-consideration of this subject, and am sufficiently sure you will form a candid conclusion.
Accept the assurance of my great respect.
(Ltr to William Charles Jarvis, 28 Sep 1820)
Well, if you wish to believe that other branches of government are constitutionally permitted to ignore the opinions of the Supreme Court on the Constitution, that is all well and good.
But, that is not what Marshall had in mind. And, that is why Jefferson disagreed with Marshall.
That is not my quote.
Did you read Jefferson’s letter?
I'm still learning how to use this system. Very sorry.
Eventually, a rogue Supreme Court must and will be held accountable by the people. A rouge court can find no refuge in a constitution it has destroyed, whose powers it has usurped.
>Eventually, a rogue Supreme Court must and will be held accountable by the people. A rouge court can find no refuge in a constitution it has destroyed, whose powers it has usurped.
Could that be the reason for the narrow-rulings on gun bans/restrictions?
I mean imagine what a worked-up and fully armed Citizenry could do to the [federal] government... including the Supreme Court.
The cynical part of me says that the USSC will, just like Congress or the Executive, take as much power as it can get away with while feeding the People only the bare minimum in ‘scraps’ to keep them from outright revolt.
He outlines the concept of separation of powers.
Do you recall a federal Judge's ruling in 1985 regarding the Kansas City MO school system? He ordered the county government to raise taxes in order to build a state of the school system designed to lure white families back to Kansas City.
Do you think the judge possessed the legitimate power to issue such an order?
“...fully informed jury ...”
Agree with that.
but also grand juries ?
“Impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.” Justice James Wilson
Impeachment of judges was for “attempts to subvert the Constitution.” George Mason
“The provision in the Constitution of the United States (concerning impeachment) . . . holds out a deep and immediate responsibility as a check upon arbitrary power.” Justice Joseph Story
For Repeal, the courts have no jurisdiction over what the House of Representatives determine to be an impeachable offense.
Do you think the judge possessed the legitimate power to issue such an order?
That one doesn't sound good to me. I don't know anything about the case, but part of being a good judge is to avoid getting backed into a corner that leads to an order that is either not self-executing or very difficult to enforce. An order that requires elected officials to make affirmative votes on tax issues would qualify as very difficult to enforce.
Judges can clearly make mistakes. Marshall would have agreed with Jefferson on that score.
Chief Justice Marshall was a powerful personality and he was a forceful advocate for the judicial branch. Prior to him, Supreme Court decisions took the form of separate opinions by each justice. Marshall thought it would enhance the power of the court and its opinions if the Court spoke with one voice - an opinion of the Court. He even encouraged the justices to live and eat together while in Washington to encourage unity.
When Marshall wrote the Court's opinion in Marbury, he had in mind something more than "we're just deciding this little case regarding constitutionality of a law and we don't mean for anyone else to pay any attention to it cuz it's just for this one little case."
Marshall meant what he said - "It is emphatically the province and duty of the judicial department to say what the law is."
Jefferson disagreed. President Jackson later argued that other branches weren't bound by Supreme Court interpretations. More recently, Nixon hinted that he might ignore a Court order to turn over subpenaed tapes, but those hints were made before the Supreme Court issued its order. After the order, Nixon immediately indicated he would comply with it even though he disagreed with it.
Whether he was right or wrong about the Court's power, Marshall is (at least so far) way ahead on points and if the naysayers want to take back some of that power he grabbed, they better get with it. :)
I usually say “welcome to free republic...yada, yada, yada...
(sarcastically with tongue in cheek).
But in your case I will say it sincerely...
“Welcome to Free Republic.”
Well, thank you for the warm welcome. :)
Well, thank you for the warm welcome. :)
My point and this thread regards separation of powers as Jefferson briefly discussed.
The KC federal judge (1985) ordered taxes to be raised. He ordered a more than doubling of the real estate millage rate and threatened fines against the commissioners. Rates of taxation are legislative functions.
It was an impeachable offense that would have outraged our Founders. Since he was not impeached, it was also a golden opportunity lost for Congress to remind courts of their just powers.
A related subject that may be worthy of it’s own thread is that the “number 9”
is arbitrary and is determined by congress.
If the socialists were as smart as they claim to be,
while they had all the momentum. and power, and the media behind them
they could have (I would have if I had been them)
changed it to 20 or 30 and packed the supreme court with a bunch of liberals.
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According to Wiki:
The United States Constitution does not specify the size of the Supreme Court, Article III authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices.
In 1807 the court was expanded to seven members,
in 1837 it was expanded to nine, and in 1863 it was expanded to ten.
In 1866, Congress passed the Judicial Circuits Act which said the next three justices
to retire would not be replaced until there were only 7.
One seat was removed in 1866 and a second in 1867.
In 1869, before the 1866 law could play out to completion, Congress passed the Judiciary Act of 1869 which set the number of justices at nine,
where it has remained ever since.
In 1937, Roosevelt attempted to expand the Court and appoint an additional justice
for each incumbent justice who reached the age of 70 1/2 years;
his proposal would have continued to make appointments
until the Court reached a maximum size of 15.
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Marshall's statement was reasonable--the job is to describe the pre-existing law, not to summon the law into being. If the judge is doing his job, what he says the law is, and what the law actually is, will be one and the same. If the judge is not doing his job, however, they may be different. Unfortunately, many people disregard the latter possibility, and figure that whatever the judge says is the law.
It's appropriate to consult precedent in cases where the existing law and statutes would be compatible with mutually-incompatible decisions--i.e. the law and statutes are ambiguous. If the law and statutes are not ambiguous, then precedent is either going to be redundant, irrelevant, or illegitimate.
There are times when it may be appropriate to cite an illegitimate precedent, but only if one is arguing that the illegitimate earlier actions of the government compel a remedy which is not explicitly provided for in the law or statutes. The fact that illegitimate actions may be difficult to unwind does not render them legitimate.
Thanks for the legal writing seminar. OneWingedShark was right in saying the interpretation of the law by the courts using stare decisis becomes a game of telephone. However, it was not always that way. A habitual reference back to the origins and foundations of the law by judges and officers of the court would minimize the attenuated results we see today.
Without some authority to interpret the Constitution, it seems to me that the interpretation Constitution will only be that which the majority party in power wishes it to be.
Did you know that the Constitutional Convention considered a judicial veto of laws FOUR TIMES and rejected the notion? It is clear that if the Framers wanted to give the legislative veto to the courts, they would have done so. Instead, they gave it to the executive.
No, the system our Framers set up requires a virtuous people to send like minded people to Congress and the Presidency. They all take oaths to support and defend the Constitution and should do so. But if the people are so corrupt to send the likes of Bawney Fwank, Barack Hussein, Kennedy, Dodd, Waters, Feingold . . . there is no piece of paper that will secure our liberties.
>Without some authority to interpret the Constitution, it seems to me that the interpretation Constitution will only be that which the majority party in power wishes it to be.
The problem isn’t interpreting the Constitution, per se, it’s re-interpreting it. There’s a number of ways they do this, the “interstate commerce clause” is a good example thereof,as is the Keelo v. New London case.
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