Marbury v. Madison: Was the 1789 Judiciary act actually unconstitutional?

In part 1 of this series, I asked one very simple question: Are progressives telling the truth about Marbury?

In part 2, I examined the gap between the activist cases of the early-mid 1900s and the 1803 ruling.

In part 3, the negative and positive aspects of how the Marbury ruling functioned were examined.

Since we know that progressives don't tell the truth about anything, then we have to start from square one. Why this is important, is progressives have long linked judicial activism to Marbury as the home of every scheme they've devised, but the more I look into it, the less I can see this is true. I'm quite certain you won't conclude that the progressives are being honest either. Why would anybody ever conclude that?

There are three major pieces here. First, here is section 13 of the judiciary act:

Finally, William Marbury filed his claim straight to the Supreme Court under section 13.

It does appear to me that the 1789 act grants extra-constitutional powers in regard to mandamus. That puts congress in the wrong here. It does not benefit the liberty of the people to have any branch of government stepping outside of its constitutional bounds, be it the courts, congress, or the president.

Understanding the constitution as well as the judiciary act itself does not vindicate judge Marshall. Maybe to you it does, but that's not why I'm doing this. Progressives use the courts to create new legislation in a positive way, wheras Marshall did no such thing. The constitution does not, in fact, give the legislature the right to say that the courts can originate mandamus.

That would require an amendment. Congress does not have the ability to amend the constitution on its own by simple legislation and neither do the courts. Looking at the text of what Marshall actually wrote, that was not his intent nor his result. The progressives have indeed pulled a fast one here.

Just an aside for further consideration:

I would point out that after having justified the obligation to review in order to decide for the Constitution only on the basis of the oath of office, saying that to require a justice to take such an oath and yet close his eyes to the Constitution and see only the statutory laws would be worse than a solemn mockery, that Marshall actually, expressly notes that officials in other departments take the same oath.

Other departments: Congress or the President

So what is it to require those to close their eyes to the Constitution and see only the opinions of the Court?

I would also point out two more things.

Firstly that an obligation that only arises because of a requirement for fidelity, faithfulness is not a power to engage in unfaithfulness, to make shit up as they go along as the modern Court has done.

Secondly, the Original Right to make Law is necessary to determine meaning because it can actually be easier to demonstrate what those who ratified the Constitution agreed to, or were led to believe they were agreeing to, than to play the game of writer’s intent that the so-called “progressives” have learned to abuse so well.

For example, the issue with the so-called general welfare clause. It should be an observation too obvious to have to make that when Hamilton wrote of this as an excuse to spend on objects besides those actually delegated for it was AFTER ratification, when he was serving as an official in a government enacted by the Constitution. When he opined is of vital importance because his opinion given after ratification cannot be said to have formed any basis for what those who ratified may be said to have agreed to.

Before ratification of the Constitution, Hamilton made no such claim. Indeed he made a stirring defense of the absolute nature of the doctrine of delegated powers to argue against the subsequent ratification of the Bill of Rights. He certainly did not disagree with Madison when he (Madison) wrote in response to charges by antifederalist concerning this language before ratification.

Moreover, examine what the antifederalist were saying: in characterizing the very use of the language that Hamilton would later adopt as abuses of same language they showed that they too understood what those advising those with the power to ratify were saying ... that the purpose of the language is only to qualify the power to tax, not to grant plenary powers to spend for the “general welfare”.

It is clear then that those who agreed to ratify agreed to this understanding, not the abuse. If Hamilton privately held a contrary views is meaningless for Hamilton was not Sovereign to make Law from the Constitution. That power belonged to the States assembled.

As an official in the government speaking up later, after ratification, contradicting what he and others had said before ratification, Hamilton spoke out of turn, he opined spuriously.

Ratification is like that moment in a wedding when the minister invites folks to speak now or forever hold their peace ... Hamilton waited till after the vows had been taken and should have kept his views to himself rather than engage in / advocate lawlessness.

Ah, but arrogation and abrogation are two entirely separate things.

Arrogation, or acting apart from lawful Authority, is what the modern progressives have wrought.

They do, therefore they can, is essentially all they know about governance by constitutional means. They are creatures of Arbitrary government, everything we became a nation to avoid in the first place.

The federal government was not to be a Sovereign able to decide for itself by the ordinary means at its disposal what its powers are. It is a creature of the Law that authorizes it and nothing more. Or at least it should be nothing more.

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