Posted on 04/02/2012 3:36:22 PM PDT by MsLady
I've been talking to some people on fb and someone mentioned Marbury v. Madison. I know nothing about it. But, what I'm hearing is this. Marbury v. Madison was a huge fight where the concept of judicial review was established for the first time. Jefferson and Madison were apoplectic at the thought that the Supreme Court could be able to strike down laws as unconstitutional.
So is this what Obama is going to try to use? It doesn't make sense to me. If the Supremes can't strike down an unconstitutional law, what good are they? They can't keep a run away congress, President in check. Doesn't make sense to me.
If someone explains this, please be gentle, I am a lay person. ;)
I suggest you listen to Mark Levin. If he hasn’t covered this yet I’m sure he will before it is over.
Obama will simply use his executive "pen" to dictate.
Obama will simply use his executive "pen" to dictate.
Link to Marbury vs Madison
Yes, the Founders really did not think about the possibility that the S.Ct. might throw out a law as unconstitutional. Marbury v. Madison established that point, and also established the point that it’s the S.Ct. that has the final say on issues of Constitutionality.
I would not say though that it seems clear. The Constitution itself does not say that, and a whole lot of mischief has been done with that principle over the years. Since it’s a well-established part of US law, though, there is no one who can legitimately claim that the S.Ct. does not have the power to declare it unConstitutional. And I don’t think that Obama is challenging it on those grounds.
Yet there is a problem with Marbury v. Madison, and that is that it depends upon the willingness of the President and the Congress to accede to the Court’s ruling. If both of them refused to go along, it would probably cause a Constitutional crisis.
Thanks for the link. Just in case I don’t answer back anymore, my internet access has been slow and spotty the past few days. I hate hughes net :(
Facts of the Case
The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court. (Justices William Cushing and Alfred Moore did not participate.)
Question
Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he requests?
Conclusion
Decision: 6 votes for Madison, 0 vote(s) against Legal provision: Section 13 of the Judiciary Act of 1789 Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.
1. Where the constitution and a statute are in conflict, one or the other has to control the outcome. CJ Marshall said the Constitution had to prevail in such a case.
2. The constitution gives SCOTUS certain original jurisdiction. SCOTUS can only take an original dispute, if it is one of the categories enumerated in the constitution. This issue was not in one of the areas that the constitution provides SCOTUS with jurisdiction. Lacking jurisdiction, the court could not hear or decide the case.
Marbury v. Madison is about the LIMITED power of the Court.
But, as is their wont, subsequent and lower courts have bastardized what the case really stands for, in order to flip it on its head and make it stand for the proposition that the court is all powerful and the final say. Neither those propositions is true, either. SCOTUS is not all powerful, and it does not have the final say.
Well, we all know obama will do whatever it is he wants to do and to heck with the constitution and everyone else, cause it’s just all about him.
I’m an atty (retired) and argued many a Constitutional issue before SCOTUS and other appellate courts. Marbury v. Madison is, perhaps, the must fundamental case in American Jurisprudence. And, yes, MANY, including Jefferson, were apoplectic that the Court decided that it’s job was to determine the Constitutionality of laws passed by Congress. While judicial review had been around for centuries, this was the first time SCOTUS dealt with the concept.
But Marbury is SO well settled that it is without issue. Regardless of who wants to do what, SCOTUS will get the final say or you have a major Constitutional crisis. We almost had one with the Nixon tapes but Nixon relented.
Obama railing against SCOTUS is meaningless. It would have to be he (the Executive Branch) refusing to follow the ruling. That has just never happened and it won’t now.
Well, we all know obama will do whatever it is he wants to do and to heck with the constitution and everyone else, cause it’s just all about him.
I just got Wildblue exede. We went without internet for six months at home while I did a lot of hand wringing about satellite (no dsl or cable here).
We just picked it up in mid march. the new satellite. It absolutely flies. ‘Couse there is a 12 gig a month limit, but so far we’re way under our limit. We don’t stream movies or anything.
It’s a bit more expensive than cable, but so far I’m very pleased. We’ll see how I feel in a year.
I am certain others can explain this better than I . But I have a copy of Marbury v.Madison from constitution.org @www.constitution.org/ussc/005-137a.htm And a copy of the US Constitution-Article III of which describes the general powers of the Judicial branch . The Federalist Papers , Madison, Hamilton,and Jay,Penguin Classic has several articles where the Judiciary was discussed. It was intended to be as Montesquieu described the Judicial branch “the weakest branch—having no power to enforce law-and no power to make law. And there is that excellent letter written by Thomas Jefferson to Justice William Johnson June 12,1823—
Thomas Jefferson Writings Library of America Merrill D.Peterson Editor, p.1469 1477. In short—best as I can tell
the big fight was between the Federalists and the anti-Federalists. Madison was a Federalist. Jefferson and anti-Federalist.John Marshall was appointed Chief Justice by John Adams John Marshall was a Federalist. Now before he left Office —after Jefferson was elected but before he was sworn in.... Adams made an appointment and expected Jefferson honor it. Jefferson believed the Constitution prohibits writs of mandamus.(as it seems do) and Marshall in writing
Marbury v. Madison was very clever. Had Marbury v. Madison been given the consideration it ought to have received Marbury v. Madison ought to have been overturned. But the Federalist had the power/support and the Courts have enjoyed the power of Judicial review since 1803 because nobody with any power wanted it overturned. I hope I didn’t mess it up for anybody.
The Court never laid claim to any legitimate power to overturn laws, or amend constitutions, or make laws.
They simply asserted, rightfully, that they had a sworn obligation to follow the Constitution, just like those who are officers in the other branches, and to make their decisions accordingly. That's it.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: 'I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States.' Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him. If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument."
"From these and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.
Thank you so much for your input. I was starting to get worried. So you don’t think we could end up with a Constitutional crisis over this? I wouldn’t put anything past Obama.
Thank you so much for your input. I was starting to get worried. So you don’t think we could end up with a Constitutional crisis over this? I wouldn’t put anything past Obama.
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