Marbury v. Madison: The one place progressives are telling the truth?

I think ProgressingAmerica has it just right.

-- the Congressional Act could have been repealed by the people's representatives in Congress. Congressmen are answering to the voters --

Or Congress could have dug in and been the subversive force in perpetuity. There is no perfect system. Any branch can be the problem, as they are today working in cahoots against the people. Do you honestly think the government is answering to the voters?

-- Once a court has interceded however, the resulting harm is very difficult to undo. --

Your hypothetical responsive Congress can impeach and remove the judges.

-- "Judicial activism" has no real fixed definition-- it means judicial review that results in a decision you don't agree with. --

That's the case only in the margins. Finding a constitutional rihght to abortion and homosexual marriage is not in the margins. The Commerce clause is twisted to enable judicial edict supporting many forms of federal government encroachment.

If the Constitution truly were “above both congress and the court”, then neither the Congress nor the court can be the arbiter of what is or is not Constitutional.

It is significant to remember, I think, that the Constitution was not written by a court. The Constitution was written by a Congress, and questions of “Constitutionality” are well within the ken of Congress.

The legislators in Congress have a duty to understand the limitations placed upon the Federal government and to pass only those laws which are consistent with same. The President has, through the exercise of veto, the ability to hinder, and even thwart, legislative enactments which are not consistent with his or her understanding of the Constitution. And the courts have the power of enforcing against Federal officials the common law protections and writs, as well as applying the longstanding principals of equity. (As expressly limited by the language in Article III)

But should all these fall short of protecting the nation from an overreaching central government.....”[t]he entire remedy is with the people.”

-- If the Constitution truly were "above both congress and the court", then neither the Congress nor the court can be the arbiter of what is or is not Constitutional. --

This is a circle jerk in the abstract. I take your position as that the courts should just turn away cases that argue constitutionality. The system is the people vs. the Congress, directly.

And Marbury should have been summarily turned away without even hearing the substance of his argument.

"It was not, actually, the first time SCOTUS exercised the power of judicial review-- in Hylton v. United States (1796),"

I'm glad that you mentioned Hylton v. United States (Hylton).

After doing some scratching about that case, I now have evidence that none of the three branches of the early federal government were interpreting the fed's constitutional Article I, Section 8-limited powers as the delegates to the Constitutional Convention had intended for those tax-limiting powers to be understood imo.

To begin a brief analysis of the history of the fed's abuse of the General Welfare Clause (GWC), Clause 1 of Congress's Section 8-limited powers, the Court's rookie (imo) interpretation of the GWC in Hylton in this example, let's consider the excerpt below.

The excerpt is from Thomas Jefferson's official report to Pres. George Washington about the constitutionality of a national bank since that report references the GWC as it pertains to a national bank. Jefferson's expert insight to the GWC is among the best explanations of that clause imo.

"1. To lay taxes to provide for the general welfare of the United States, that is to say, "to lay taxes for the purpose of providing for the general welfare." For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.
It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please."
—Jefferson's Opinion on the Constitutionality of a National Bank : 1791

More specifically, since there are no clauses in Congress's constitutional Article I, Section 8-limited powers that address privately owned carriages of concern in Hylton case, the case opinion arguably indicates the following.

Supreme Court justices wrongly (imo) based their decision about Congress's power to tax solely on the GWC, Clause 1 of Section 8, the justices evidently either clueless, or politically inclined to ignore that the remaining clauses of Section 8 were intended to limit Congress's power to tax.

"The act of Congress of 6 June 1794, laying "a tax on carriages for the conveyance of persons, kept for the use of the owner," is a constitutional law, and is within the authority granted to Congress by the eighth section of the first article of the Constitution [??? emphasis added]." — Hylton v. United States, 1796 .

Federal government confusion about the GWC is also evidenced by President James Madison vetoing Congress's public works bill of 1817, Madison generally regarded as the father of the Constitution.

After vetoing the bill, Madison went on to explain that, although GWC gave Congress the power to tax, it remains that such power is limited by the clauses that follow it, no clauses justifying the roads and canals that Congress wanted to tax and spend for in the public works bill.

"To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper." —Madison Veto Message.

Again, given Madison's expert opinion on GWC, both the Supreme Court and Congress had interpreted Congress's GWC powers too widely imo, failing to accept that the clauses that followed it in Section 8 are intended to limit those powers.

"In every event, I would rather construe so narrowly as to oblige the nation to amend, and thus declare what powers they would agree to yield, than too broadly, and indeed, so broadly as to enable the executive and the Senate to do things which the Constitution forbids." —Thomas Jefferson: The Anas, 1793.

Hypothetically speaking, if Congress had first successfully petitioned the states to ratify a roads and canals amendment to the Constitution, effectively adding a new item to Congress's Section 8-limited powers, then Madison probably would have signed the bill.

On the other hand, maybe the rookie Congress hadn't studied the Constitution down to Article V by that time. /semi-sarc

(Also, if a president can claim using specific constitutional clauses that a bill is unconstitutional as a reason to veto a bill, then why can't SCOTUS do the same with a law?)

Additionally, the following excerpt from the Helvering v. Davis opinion that gave the green light to Social Security (SS) shows that the low-information Congress during the FDR Administration had likewise based the establishment of SS solely on the incomplete GWC delegation of power to tax.

"Congress may spend money in aid of the "general welfare." Constitution, Art. I, section 8; United States v. Butler, 297 U. S. 1, 297 U. S. 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground, or certainly a penumbra, in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law." —Helvering v. Davis, 1937.

Noting that there was nothing stopping the post-17th Amendment ratification Congress from first petitioning the states for the specific new constitutional power to establish SS, the sophistry of the above excerpt used to help unconstitutionally expand the fed's powers imo ignores the following major constitutional problem.

Unlike Madison properly vetoing the public works bill, FDR wrongly let Congress get away with establishing SS without first securing the required consent of the Constitution's Article V state supermajority which the states probably would have approved.

Again, since there's never been anything stopping the states from expressly amending the Constitution to give the feds the specific powers to tax and spend for things like Social Security and Medicare, FDR and Congress wrongly established such social spending programs with stolen state powers and stolen state revenues uniquely associated with those powers, state revenues stolen by means of unconstitutional federal taxes.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States."Justice John Marshall, Gibbons v. Ogden, 1824.
From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.

Corrections, insights welcome.

After doing some scratching about that case, I now have evidence that none of the three branches of the early federal government were interpreting the fed's constitutional Article I, Section 8-limited powers as the delegates to the Constitutional Convention had intended for those tax-limiting powers to be understood imo.

Look at the names of the Justices who decided the Hylton case. Then look at a list of the signers of the Constitution. Notice anything?

Hint: of the four justices who decided Hylton (the Court had several vacancies at the time), two were delegates to the Constitutional Convention. They both agreed with the other two justices that a federal tax on carriages ($16 per carriage, a huge sum in the 1790s) was constitutional under Article I, section 8.

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