Posted on 09/07/2015 2:44:16 AM PDT by markomalley
SPIN LAW... like is done with several amendments to make them cover what they do not cover.. as a mask like is done with the 14th amendment.. all the time..
To make it cover bogus issues.. and force meaning that is not there.. to make legal what is not legal or even prudent.. to stand the Constitution on it’s head..
Like abortion or gay rights.. and many other things..
I wondered if Spiro Agnew came up with that line himself or if someone else (like Pat Buchanan) did.
Again, as before, no argument from this quarter.
It is to this that Jefferson objects, the issue not being laid before The Court, therefore not qualifying for their judicial notice.
I find it difficult to understand Jefferson’s rationale here. But then, maybe I’m just slow on the uptake. Can you explain to me what motive he might have had for making such a claim?
Apparently, Jefferson was objecting to the entire concept of judicial review. But without it, how can the Supreme Court discharge its Article III duties?
The situation in Marbury boils down to a petition to the Supreme Court to issue a writ of mandamus, compelling the Executive Branch to deliver Marbury’s commission on the grounds that it had original jurisdiction to do so, on the basis of section 13 of the Federal Judiciary Act of 1789, a legislative statute. The situation entailed a reading of the Constitution to ascertain whether the Court did, in fact, have such a power under the Constitution. And a unanimous Court found that it did not.
Might I suggest in passing here that “judicial review” is not the same thing as “judicial activism?” Indeed, it seems clear to me that Chief Justice Marshall was not a “judicial activist.” He fully disclosed his judicial philosophy at the Virginia Ratifying Convention of 1788 (Marshall was pro-ratification):
If Congress were to make a law not warranted by any of the powers enumerated [in the federal Constitution], it would be considered by the judges as an infringement of the Constitution which they are to guard…. [The Court] would declare it void.Evidently Marshall relied on Hamilton’s analysis of the Article III powers as set forth in The Federalist No. 78. It is clear from Hamilton that Article III was designed from the outset to be the only non-political branch of constitutional government. The other two branches — the legislative and the executive — were clearly envisioned as political branches, which is why their members are subject to periodic election. As Hamilton put it, the Article III Supreme Court had no “WILL” of its own, but only “JUDGMENT.” Thus Hamilton argued that limited government required that courts be empowered to “declare all acts contrary to the manifest tenor of the Constitution void”: Such laws are not “law,” but nullities from the get-go.
But the only way to get to that end is by the route of judicial review of any legislative statute as to its conformity with the relevant constitutional texts.
In Marbury, Chief Justice Marshall found that the grant of mandamus to the Supreme Court effected by the Judiciary Act was unconstitutional. Congress can, by statute, detract from Article III powers; but it cannot add to them. Article III already fully specifies Supreme Court jurisdictional issues, whether they be original or appellate. Article I gives no constitutional warrant to Congress to expand the powers of Article III judges. So the Marbury Court struck down section 13, on which Marbury’s petition to the Court was premised.
It seems nearly certain that Chief Justice Marshall was aware, on practical and prudential grounds, that to empower Article I — a political body — to expand the powers of Article III — a non-political body — could not fail to result in the politicization of Article III.
Article III envisions the (non-political) Supreme Court as the good-faith mediator between the (political) branches detailed in Articles I and II — which deal with the making and execution of federal law respectively — using the federal Constitution as its touchstone and guide. The Court DOES NOT MAKE LAW itself.
This is all “judicial review” amounts to.
I gather Jefferson might have objected to it on the grounds of his political philosophy — which is way to the LEFT of my own (FWIW). Seemingly he cognized the basic plan of the Constitution as involving three equal, separate, co-ordinate branches. But the operative word for him, here, is “separate”: One branch doesn’t have the right to interfere with the workings of the other branches, let alone one branch being able to tell another what to do within the sphere of its own competence. If a branch told another branch what to do, and the other branch acceded to the command, then obviously, the two branches are no longer “equal.” (Or even “separate.”) For one branch would then clearly be superior to the other.
Which is why Jefferson would almost certainly have ignored a writ of mandamus from the Supreme Court, had they decided to issue one in Marbury.
But if Jefferson’s understanding is correct, then why do we need Article III at all? Jefferson probably was not well-informed about the discussions at the Philadelphia Convention on precisely this subject matter. He was in Paris at the time. But Hamilton was there….
I wonder which of the two men — Jefferson or Marshall — was the more disposed to “regal” tendencies of character….
So far, I’ve been trying to outline the original meaning of judicial review, thinking it a good contrast with the main judicial problem that plagues our time, judicial activism.
The most egregious instances of judicial activism in recent times have been the Roe v. Wade and Obergefell v. Hodges decisions. Arguably, no Court bound by the doctrine of judicial review could have issued these decisions. Indeed, the judicial activism involved in these decisions entirely depended on the complete rejection of judicial review in the first place: Evidently, the Constitution itself was not consulted. Thus the majority justices plainly decided to place their own “discretionary jurisprudential judgment” as superior to the plain language of the Constitution. Thus five people decided to impose a whole new, and quite unconstitutional order, on some 320 billion people. And somehow, magically, we 320 billion are supposed to credit this as “constitutional law.”
These results could not possibly have been achieved had the Supreme Court remained “non-political.” Indeed, the imposition of the Rule of Five Justices over 320 billion Americans can only be understood as a political act. For these justices are making law from the bench — and they not only have no Article III warrant to do that, but they are forbidden to do that under any sensible, rational reading of Article III or of the Constitution taken in its entirety.
The Court has made itself the “king” of the States and the People; and the Constitution be damned.
Anyhoot, must close, having run on so long already. But not before leaving you with the widely accepted definition of “judicial activism”:
Judicial Activism [is] the charge that judges are going beyond their appropriate powers and engaging in making law and not merely interpreting it. Against this position is placed the ideal of judicial restraint, which counsels judges to resist the temptation to influence public policy through their decisions and decrees. — Gary McDowell, Bradley Visiting Scholar, Harvard Law School, ibid., p. 454I note with some irony that my dear correspondent Hostage — who first opened the can of worms which is Marbury v. Madison as entirely worthy of “revisiting” at this time here at FR — evidently finds Jefferson “clairvoyant” on the subject of the future polititicization of the courts, a tendency to which “judicial review” ineluctably leads over time.
Good grief, I would argue that Jefferson is the documented original source of this political problem that dates precisely to the Marbury controversy…. And I daresay I find Jefferson on the wrong side of this argument. For to Jefferson, everything is within the scope of “politics.” Thus everything is popularly “negotiable,” without constitutional limit….
Which is why I say Jefferson’s political theory is way to the LEFT of my own. I’m a political conservative; and what I try to “conserve” is the Framers’ understanding of the Constitution as they wrought it, and which the several States ratified on behalf of their respective Peoples.
Thank you, dear Hostage, and dear YHAOS, for sharing your insights!
Argh, my kingdom for a decent copy writer!
The constitution is silent on whether or not a Supreme Court decision overturning an act of congress can be achieved with anything less than a unanimous opinion. Marbury was unanimous. That set the standard. If we want to ensure that the courts are not politicized, then we need to make sure that any SC decision overturning a duly enacted law must be by unanimous concurrence of all of the Justices.
Congress has the power to do this.
Indeed, they do have the power, under Article III. But they don't ever exercise it.
Or at least, never have so far.
How do we the People, in whom all sovereignty rests, hold their feet to the fire??? Through elections???
Jeepers, Hell would have to freeze first, before we see any energy from Congress along these lines.
If that is the case, THEN WHAT???
You've got some great ideas, dear P-Marlowe. How are we sovereign citizens to realize them???
Thank you ever so much for writing!!!
Even if by some rare circumstance they managed to pass a law or resolution amounting to an edict that the USSC must be unanimous in overturning duly enacted laws, the weasel wording skills of lawyers can twist the details of statutes in such a way that judicial clerks and their accomplices in Congress can deem a law still stands yet twist its policy making or subvert its enforcement.
We must recognize that the Beltway Class is a world unto itself funded by the Federal Reserve channeling digitized money creation through bond markets leaving Congress detached from taxpayers. Although there still exist firebrands of principle, they are not yet capable of taking control of Congress for the American people. Congressional corruption always finds a way to subvert the will of the governed.
I witnessed this first hand when I was in Washington DC in 2005-2006. Although I grew up in DC I had left it for 25 years.
When I returned an associate of mine who was my contact to the inside ops of joint committees summed up the change in attitudes and behaviors during my absence. In effect as a young person I witnessed the Beltway Class to be inhabited by a majority that saw their responsibility to do the right thing for the American people. Whereas today the ethos pervades in the selfish expression "What's in it for me?".
Today it's all about "me, myself and I" and I say that in a statistical sense in that ***most*** hold that as their inner mantra.
The Beltway Class knows where the levers of power are and they know how to shift and change them so that they always have the upper hand. There really is a Uniparty atmosphere. Staffs of officials and members, government workers, lobbyists and their networks, all these people know each other, their kids play together, they socialize with each other. It's not at all surprising to see a so-called 'conservative' member of Congress laugh it up with the worst of the progressives. They are united in their shared power. They protect each other first before all others. It's important that we understand that and that we don't forget it.
I have given up on Washington DC for now. I work with people in the Article V efforts which is very very active under the press' radar. Here's an example from an email I received today (and I receive average 5 such emails per day):
Hello Bill & Lyle:
....Has Brent Bishop verified that Representative Manweller is going ahead with a resolution calling for a Washington State application for a Convention of States? Has Gordon Claxton received any confirmation that Senator Angel attended the ALEC/Convention of States Caucus Conference in San Diego on July 23, 2015. I would like to get that information out to our volunteers because both events offer maximum leverage for our effort. We stand a good chance of pushing ahead with the Resolution, if we had that leverage. Politicians seem to be very secretive and will not distribute information until they are sure that they have a PC advantage. I just checked the Legislative Roster and Republicans have 25 of the 49 Senate Seats, Democrats 24. Republicans have 47 of the 98 House Seats and the Democrats have 51. We stand a chance.
There are three Legislative Districts in Clark County, 17, 18 and 49. I sent you both copies of an e-mail that I sent to the 37 e-mail addresses that you forwarded to me. So far I have received replies from 3 in LD 18 and 1 in LD 17. I have printed three good maps of the Districts and I offered assistance to one person who didn't know her Legislative District. I will continue to march. Festina Lente.
Tom Dent
District Captain
WA Legislative Districts 17, 18, & 49
Morning Tom.. I appreciate what you do.. I will be sending a list of volunteers your way and I am not aware of any communication on the status of your questions..I will go fishing for answer at more haste, less speed...also
Morning Brent.. What can we do to help with
Representative Manweller and assist in your efforts?
Morning Gordon ..Can you please confirmation that Senator Angel attended the ALEC/Convention of States Caucus Conference in San Diego on July 23, 2015
Morning Lyle.. Do you have any input?
Morning Michael.. Do you have any input?
WA. District 26 Captain Gordon Claxton (Gig Harbor, WA)· gmclaxton2008@comcast.net (253) 222-3131
And this is just one small daily thread excerpt of thousands and thousands that are happening daily across the nation.
There are 7,398 state legislators and we need just enough of the them from enough state legislative bodies to carry JUST ONE amendment across the finish line AND REALIZE that it is the same state legislators who BOTH PROPOSE AND RATIFY so that the entire effort happens outside the Beltway Class much to their fear and trepidation.
Because ultimately this is about POWER. And sweet cogent legal arguments and niceties, nice and principled thoughts, presentations, analyses and arguments to the Beltway and inside the Beltway simply don't yield the power leverage because the people with their hands on the power are bought and paid for by those who are smart enough to know that power is so much more efficient when controlling share is owned among 50,000+ lobbyists and members, officials versus trying to persuade and coax 175 million taxpayers! The Oligarchs own the media to try and keep the millions of nobodies in line while they dictate to the members which direction to go. This is the reality.
Think about it. Which is easier? Controlling enough of the 100 members of the US Senate or trying to convince a hundred million or so 'crazies', 'Whacko Tea Partiers', etc.? The US Senate is low lying fruit easy for picking whereas the population is a pain in the ass to be handled by the likes of talking heads and Beltway gossip mongers.
The Article V was ironically used in pushing the 17th Amendment by a consortium of states who had gathered so much momentum that it was a done deal just waiting for two states to pass resolutions and they had signaled they would be doing just that in a matter of weeks. And what did Congress do? THEY PANICKED! They trembled knowing their world of power would forever be changed if the states were to exercise their Article V power.
So Congress jumped in and utilized a provision in certain state resolutions allowing for 'discharge' of the resolution, So they did just that and denied the states the 2/3's necessary to propose amendments.
And Congress will do the same again but there won't be any discharge clauses in the unified and conforming resolutions that are forthcoming.
The entire evolution of power is a 100 years in the making with the knocking the state legislatures out of representation in Congress by passing the 17th Amendment. The result is even more power has concentrated around Washington DC so much so that it runs its own world and reacts in horror when anyone such as Ted Cruz or Donald Trump have the audacity to disrupt that world.
So forget Washington DC! You are not going to change it! Look around you and get educated about the power you have right in your own hands in your own backyard! We have the power! We can change what the Beltway Class and the Uniparty have been dishing out to us for decades by using the power that is right in front of our faces!
Worthy of remembering..
The WALL was passed and funded TWICE..
But Congress used the money for something else..
More important to them.. or it was like Obama’s website.
FREE money for the Unions and other democrats..
TRUMP does know what he’s getting into..
And knows he can blame COngress when his plans DO NOT HAPPEN..
BUT by then is the new Emperor.. i.e. Caesar redux..
You make some interesting and excellent points in this post, Hostage.
Amen, Brother.
Hi George,
This is Sanjay Ramatinya. He’s a conservative colunmnist from India. He’s going to be replacing you there at ABC, so if you’d be so kind as to hand him your laptop, key card, phone, and company credit card, he’s going to be taking your place tonight.
Oh, and can you show him what the lights on top of the cameras are for? If you don’t, we are going to screw you on your package, mmmmkay?
Sorry about you being white, male, and all. If you had a decent set of cans, you could probably get an interview over at Fox. You could always go the ‘Cait’ route I suppose.
Anyway, if you need a recommendation just holler. Enjoy being number 2 to the guy they are going to hire everywhere else. Anyway, there’s always baseball to write about, presupposing there are still people willing to penetrate that high-brow drivel you write. Maybe you can write about the good old days, when a team could pick up 10 Dominican prospects up for the price they’d pay a white 16 year old with a 92 mph fast ball.
Not any more, right?
Oh well. Sorry the party had to end, but your mask fell off. Be well.
Regards,
The American Middle Class
This is the part I don't get: Why would the states try to use an application for an Article V COS to eliminate their own representation in Congress? I just don't get it.
Of course, as you say, Congress stepped in and obviated the COS by recognizing discharge provisions that certain states had in their applications, thereby assuring that the 2/3 of the states provision could not be met. And then stepped in and passed its own amendment for the direct election of senators. And then mirabile dictu!!! Three-quarters of the states ratified it. Why would the ratifying states want to lose their representation in the Senate? It just makes no sense to me.
Maybe you could explain this all to me, Hostage???
Hopefully, the people working on the Article V COS will have learned not to repeat past mistakes. Congress will fight it tooth and nail, initially by disqualifying as many state applications as possible, I imagine by hook or by crook.... For once 34 states are recognized as having proposed applications on substantially identical subject matter, Congress MUST call the convention for proposing amendments to the Constitution. At which point, Congress has zero role to play other than a purely ministerial one during convention proceedings. Such proceedings are entirely subject to the rules — voting, procedural, commissioner numbers and qualifications, et al. — developed by the convention itself. Congress is side-lined entirely. The only power Congress has at that point is to propose the particular method of ratification to be used. But as you note, whichever they pick — ratification by state conventions or by state legislatures — the ratification power remains entirely in the hands of the several states.
Thank you so very much, Hostage, for sharing your insights into how the Washington ethos has changed so radically in recent times. Truly, the federal government is no longer in the business of representing the people; rather, it is in the business of representing the lobbyists who fund their election campaigns.
Washington simply reeks of corruption these days....
George Will was always a communist democrat that gained favor within the republican party and stayed there. He has never been a pro-American.
Ain't it the truth, entropy12!!!
Thanks so much for stating it so succinctly!!!
My tag line: When you vote for a candidate, you are actually voting for his rich donors!
Learn the reality or live in a pipe dream!
Surely you are NOT that Simplistic.... are you?..
That would be true of literally EVERYBODY seeking Office..
Especially Donald Trump...
Trump does not NEED donors to HAMSTRING Cruz..
He needs prospective VOTERS.. and credibility to naive conservatives..
TO MASK his real agenda.. to ENABLE the crony capitalists HONEY POT.. the federal treasury..
Being himself a Global capitalist with global NEEDS... Wants and desires..
LIKE:...... ALL his siblings all his children.. ALL his current friends and associates.. AND employees..
TOTALLY OVER LOOKED by Trumpbots..
Trump IS AGAINST Ted Cruz.. NOT for Him..
Trump IGNORES Ted Cruz.. like the other BAD GUYS..
Trump IS FOR BIG GOVERNMENT... has no problem with it at all..
BIG MASSIVE rogue federal government that is at LEAST 80% larger than it SHOULD BE..
WHich by the way is EXACTLY what the Democrat Party IS FOR... And ALL Rinos.. and CIVICS dumbasses..
Hi betty boop, keep up the good work. Old age has finally infused my brain with some wisdom hahaha
I reached that conclusion after watching candidates after candidates who say one thing before election, then vote what their rich donors order. I have watched politicians since JFK-Nixon.
I reached that conclusion after watching candidates after candidates who say one thing before election, then vote what their rich donors order. I have watched politicians since JFK-Nixon.
SO.. you’ve been around for awhile.. a LONG while.. LOL.. Me Too..
Compared to the other candidates NIXON was better..
JFK was a dunce as were his bothers AND sisters..
Nixon was a BAD GUY among many other BADDER Guys..
True American politics has been SCREWED for the longest time..
It’s NOT NEW at all.. the corruption.. from Uncle Sam’s combover to hes Florsheims..
Uncle Sam is a pervert..
Even Reagan and Eisenhower had to Swim in the latrine with a full toilet.. and couldn’t flush it..
Eisenhower didn’t know how.. and Reagan was snorkeling..
Cruz offers a real chance to FLUSH Washington D.C.
Wish Trump could and would BUT alas he is running to ENSURE IT CONTINUES... i.e. the latrine..
He just wants to Clean it up SOMEWHAT.. it is pretty RIPE..
Trump could care less what is constitutional OR NOT..
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