Tublecane, you bring up some valid points and I believe that something of an answer to these can be found in the nature of the Classical Liberalism known and approved of by the Founders and Framers.
It may help to understand me better if you know what I deem to be four important hallmarks of Classical American Liberalism — or what might be called true 'political liberalism'.
1) support for limited government
2) support for decentralized administration
3) support for constitutional authority for governance
4) support for a proper basis for laws founded, in the case of the American Republic, in our rightful common laws
These, I reason, are genuinely "liberal" in relation to vast swaths of human governance and the 'traditions' (if one could call them that) by which they have operated throughout much of history.
What I would call a 'political conservative', or one who is in harmony with the long march of human tyranny, would tend to enjoin these:
1) support for potent government
2) support for centralized administration
3) support for arbitrary authority for governance
4) support for arbitrary basis for laws
You may see how what we call "liberal" and "conservative" in 21st century America is somewhat out of whack by these definitions.
Those we call "liberals" are in fact "political conservatives".
I've even gone so far in the past to opine that the only thing that really separates them from the monarchist of old is that they are patrons of the centralized government itself as an ongoing concern rather than some dynasty.
Modern 'liberals' are in fact either apparatchiks or wanna-be apparatchiks — for that is the best term I've ever come across to describe them.
The centralized government: its power; its prestige; its ability to look out for people and protect them even from themselves ... THAT is their thing. C.S.Lewis wrote that the most persistent tyrants are those who, deeming their motives to be good, are never disturbed by their consciences and who sleep well never haunted by what they have done.
Let's look at some of what you brought up and how that is addressed by the liberalism of the Framers.
First off, the inescapable fact that people who establish governments do so as the federal head of their families too, for they represent those as yet unborn (thus "to ourselves and our Posterity"). This is what you cited when you wrote: "
What about people born after the ratification process, like me, who no one bothered asking? My sovereignty is forfeit upon my birth because I was born in a nation that got the support of some slice of “the people” some time in the distant past? I might as well never have had it."
It is true in the past — when dealing with statutory law as opposed to constitutional law — that I have opined that just because my great granddaddy was around when a tax was first imposed and he got representation (no taxation without representation thing) that does not mean that I have received representation. I have expressly stated that the tax code should periodically come up for reauthorization or else it should sunset and have suggested that they could break it up into 1/20th chunks and proceed to debate and reauthorize or modify or eliminate some portion of the tax code every year ... at least until the inexorable forces of human laziness finally resulted in a shorter tax code because no one wants to debate even a 20th of such a vast ... thing year after year with no end in sight (and also they could never resist tampering or grandstanding along the way).
But as I alluded to there is a distinction between representation and the amendment process: the former relates to carrying into execution previously delegated powers and the latter is more akin to a referendum process that may delegate new powers or even remove old ones.
So there is no possible basis under a written constitution (of any kind) for the generation who authored and accepted it to not be the federal head of the nation (this would also include, incidentally, those who amend a constitution too with respect to what they have authored and adopted). They were actually our representatives in that case, who spoke for us and on our behalf because we were and are, legally if not factually, their children.
This is in fact what the decision for
Marbury v Madison hinged on. As I wrote: this decision has been misrepresented and this has been done for a cause.
Most people believe that
Marbury hinged on the question of if judicial review was proper or not and a popular belief is that this opinion established the principal of judicial review; however, Marshall himself proves this contention wrong when he cites the
earlier Cases that actually demonstrated the theoretical properness of judicial review, writing:
"This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to place on the pension list such disabled officers and soldiers as should be reported to him by the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pension list was a legal question, properly determinable in the Courts, although the act of placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in February, 1793, making it the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of War, commanding him to place on the pension list a person stating himself to be on the report of the judges.
There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest law officer of the United States, the most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was not that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case — the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right.
"The judgment in that case is understood to have decided the merits of all claims of that description, and the persons, on the report of the commissioners, found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional in order to place themselves on the pension list.
"The doctrine, therefore, now advanced is by no means a novel one."
In fact, the infamous and relatively well know quote from
Marbury: "
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each." is actually lifted out of context and is presented as if IT were the actual foundation on which the opinion rest.
But this is a misrepresentation of the opinion. As I've already proved the question of "if" judicial review was proper or not had already been settled and was not in contention.
To understand this opinion, why it is the way it is, one need to remember an important fact: John Marshall was HIMSELF the Secretary of State who didn't put commissions for some of the Midnight Justices into the post.
He was essentially involved in the dispute as a party.
Rather than recuse himself for that basis he structured his opinion to take it into account: so he clearly lays out in both common law and the Laws of the United States Mr.William Marbury's clear right to obtain a Writ of Mandamus from a court with proper jurisdiction.
Marbury v Madison does not hinge on that demonstration though, for by means of it we could rightly say that Marshall was demonstrating his impartiality and thoroughness as a jurist and thus his right to sit and hear the petition for that specific Writ of Mandamus.
Likewise, Marshall demonstrated that judicial review was not an issue either, so he at least anticipated and tried to answer claims that he might be something of a tyrant or a bully.
The real meat of the opinion is found only after these preliminaries are out of the way, and it is here that if it is proper or not for one generation to represent another not yet born can be inspected. This section starts:
"This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired:
"Whether it can issue from this Court."
It is in how Marshall answers this question that we find what should be the true significance of
Marbury v Madison.
You can find the full opinion here: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html
Just scroll down a bit to reach the portion I'm dealing with.
To make a long story short (too late, I know) this essay is not answered by the infamous quote which I presented above.
It is answered by an essay of which that line is but, well, one line (and not even an especially important part of it too).
This essay deals with the
proper methodology for judicial review and it is one that expressly honors both original right of those who adopted the Constitution and the theory of written constitutions by which the Framer's labored. We would call these strict originalism and strict constructionism respectively.
Without apology:
Marbury v Madison is precisely the ruling that in strong language disallows notions like a "living constitution". Not only that, but it would cause even Justice Scalia problems, for while he strongly supports originalism he does NOT support constructionism (having essentially said that to be a constructionist would repudiate the modern theory of jurisprudence). Rather than being the great strength on the modern courts on account of being misrepresented it is, properly construed, the modern court's greatest weakness — the Achilles Heel.
What this means is possibly best summed up in two lines from the opinion that taken together are better suited to represent its true meat than the infamous quote ever will be. These are:
"Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law."
... and ...
"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."
On account of the latter the former can in fact be fairly paraphrased as:
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only past opinions and decisions of the Court.
This is a fair paraphrase precisely because the courts are to be governed by the Constitution as the legislature is. So if mere statues, acts of Congress, are insufficient to practically alter the delegation of powers for the federal then how much less should mere opinions of the Court be likewise? Or else the courts are not governed by the Constitution but they instead are governors of IT.
From the above, and the actual text out of
Marbury, both which I've cited and which remains (possibly thankfully) still to be found at the above link (there are those who would claim I wouldn't know "brief" if it bit me on the butt ... and they might be right), it should be clear that those who act as a federal head, or better a representative head, for their posterity expect that they are doing something proper to begin with.
They would say that we have already received representation in these matters and if anything critical to be done yet remains we could likewise represent ourselves (and our Posterity) in some future amendment process.
While a "written constitution" can apportion general power to a government to do anything it feels like doing, much as Marshall himself notes, this aspect of federal constitutions seems inescapable if they are indeed of the sort that our is.
Essentially, Marshall would have it that even the Framers, when they made all their arguments and the States finally signed the dotted line, had also been their own representatives in the process and that having helped to establish the Constitution what was left for them henceforth would be to represent the people and carry out the powers delegated to the federal RATHER than still be free to tweak the Constitution as if they had never laid down their pens in the first place.
I would guess this was at least some point of contention, some source of irritation, that his peers may have had with him.
Beyond this, many of your concerns can be answered in the first two of my highlights of Classical American Liberalism: support for limited government and support for decentralized administration.
You wrote: "
I’m wondering if there’s any way at all for powers to be legitimately delegated. This article sets the statndard that powers cannot be incorporated unless there was some sort of process that was seen as being legal. Accept no process is ever seen as legal and perfectly legitimate by everyone. And that’s important because if “the people” are sovereign, we take it to mean all the people are sovereign every last one of them."
I would suggest that governance cast as close to home as possible and prudent answers your concerns. It is indeed difficult to be content with the actions of a distant and powerful central government that you may frankly have a snowball's chance in Hell of influencing. The same is not true of local governance.
Several things are true, or at least likely true, under our federal Constitution that favor retaining as much of government's varied functions at the State and local levels.
First, as the scale of government decreases the ability to engage it increases. One person who gets totally peeved can in fact successfully run for school board or the park commission (or at least give those who do get elected a righteous earful) while in practice most people couldn't get elected to Congress or else stand up in front of Congress and read them the proverbial riot act.
Second, and this is especially true of local governments, these are easier to legally modify than is the federal Constitution to allow or prevent them powers. This is exactly why I closed off that essay wit: "Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many."
So I don't think legality is a shortcut or that civilization need be a colossal swindle. I do, however, reason that lawlessness in high places is a shortcut (if not THE shortcut) and that our civilization is in fact a colossal swindle at this time on account of that.
We've gone from: "Buddy, can you spare a dime?" to "Buddy, you WILL spare a living wage and free health care." in only 70 years.
ForGod'sSake, I guess mileage does indeed vary. –.^
I hope you are feeling better.