Posted on 09/07/2015 2:44:16 AM PDT by markomalley
(snip)
Will said, “There’s no question that the president’s selective interpretation of the Constitutional provision that the executive shall see that the laws are faithfully execute his selective approach to that perhaps has encouraged a kind of lawlessness. People saying well, I can do whatever I wish. But surely it is a wholesome rule that executives should obey legitimate court orders. That’s true whether your name is Orval Faubus, the Democratic governor of Arkansas in the 1950s or George Wallace, the democratic governor of Alabama in the ’60s. Kim Davis, the Democratic county clerk in Kentucky.
(Excerpt) Read more at breitbart.com ...
George Will is no “conservative.” It is impossible for an atheist to be a “conservative.” Once you throw out God, there’s nothing left to “conserve.”
The problem with the 10th Amendment is there was no mechanism written into it to rectify federal overreach.
The USSC, specifically Anthony Kennedy, who incidentally had a mentor who was homosexual, based his ruling on the 14th Amendment to which he proceeded to read in his bias and twist to his fashion.
There is no check on Supreme Court Justices in reading what they will into the Constitution. And this lack of check traces all the way back to Marbury v. Madison to which subsequent rulings should have been challenged but were never of such significance in relation to other matters that energy was never expended. But nothing stands in the way of revisiting Marbury v. Madison today.
Counter arguments describing what is needed are to elect conservative presidents who will appoint conservative justices. No!
It was President Reagan that appointed Anthony Kennedy. It is said that Kennedy lied during his vetting process with Reagan's people one of whom was Mark Levin.
Therefore, electing a conservative president is no panacea.
What is needed is a series of amendments that restore and strengthen the States, and that restore the balance between the States and the Federal government.
Catching a liar should be easy with proper vvetting. A better question is why was Kennedy even considered at all, his having been a Ford man in 1976. Best hint yet of where he stood
“There is currently no marriage law in KY.”
So you can’t be legally married in Ky?
That’s quite a leap you’ve made!
What I’m saying (and all I’m saying) is if she (for whatever reason) can’t fulfill the duties of her office she should’ve resigned.
” Compromise between Davis and the judge could and should have been worked out before this got to the point it did.’
Wonder if she wanted to work out a solution?
(Off topic)
As for Will being Anti-Trump...I’m with George.
All I am saying is that your viewpoint implicitly supports a religious test.
So let's revisit it!
Marbury v. Madison (decided 24 February 1803 by a vote of 5 to 0, Chief Justice John Marshall writing for the Court) was the first Supreme Court case to apply the emergent doctrine of judicial review to a congressional statute.
In the process, it had to deal with a poisonous political landscape: The Federalist President John Adams lost his reelection to the Republican President Thomas Jefferson. To say there was bad blood between these political parties — and the two men personally at the time — would be a gross understatement.
One William Marbury had been appointed a justice of the peace for the District of Columbia under the Adams Administration, but his commission had not been delivered to him at the time of Jefferson's accession to presidential office. The Republican party, evidently in a frenzy of "retaliation" in their dispute with the Federalists over past offenses real or imagined, wanted to see that the commission was never delivered, without which Marbury could not be seated as a federal judge. The incoming Republican Secretary of State, James Madison, refused to deliver it.
So Marbury went straight to the Supreme Court, invoking the "original jurisdiction" language of Article III, Section 2:
In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction.Marbury petitioned the Court to issue a writ of mandamus, compelling Madison to deliver his already signed-and-sealed commission.
Herbert A. Johnson, author of the article on Marbury v. Madison in The Oxford Companion to the Supreme Court of the United States (1992 edition), explains what happened next:
In his opinion for the Court, Marshall held that Marbury was entitled to his commission and that Madison had withheld it from him wrongfully. Mandamus was the appropriate remedy at common law, but the question presented was whether it was available under Article III's grant of original jurisdiction to the Supreme Court. To decide the question, Marshall was required to compare the text of Article III with section 13 of the Judiciary Act of 1789, by which Congress authorized the mandamus writ. Finding that the statute conflicted with the Federal Constitution, Marshall considered it "the essence of judicial duty" ... to follow the Constitution. He concluded that "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.... [boldface added for emphasis]Chief Justice Marshall was thus the first to articulate and validate the principle of judicial review at the federal level. At the same time, his opinion
...conceded that the federal government has only the limited authority conferred upon it by the terms of the Constitution; all other political power and sovereignty is reserved either to the states or to the people by the Tenth Amendment. Thus concepts of limited government most vigorously circumscribed the powers of the federal government at least before the Civil War.... [more bolds added][Since the Civil War, maybe not so much....]
However, as Johnson points out, "Chief Justice Marshall had always been careful to defer to the political branches — Congress and the president — when important matters of domestic and foreign policy were involved."
Indeed, the Constitution itself appears NOT to regard the Article III judiciary as a branch with a political role at all. How else to explain the fact that SCOTUS justices, and federal judges generally, enjoy lifetime appointment to office, subject only to "good behavior?"
But tell that to Justice Kennedy!!!
Dear Hostage, you wrote: "There is no check on Supreme Court Justices in reading what they will into the Constitution." So it seems. We despair at the lack of "push-back" against a runaway Court.
Actually, Congress itself has the powers to push back — but doesn't seem to have the appetite to use them. The first is the power of Impeachment. (Politically very messy and difficult). The second is its Article III, Section 2 power:
...the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.Needless to say, I haven't seen any Congressional "exceptionalizing" or "regulating" of SCOTUS in recent times. It would be difficult to repeal their past mischief; but it seems to me Congress can stop their future mischief — by limiting SCOTUS' appellate jurisdiction.
Must stop there for now. You raise another extremely important issue in your last, dear Hostage: the Article V Convention of the States, for the proposal of amendments to the Constitution that can structurally restore the original balance of powers, as envisioned by the Framers, as between the federal government and the sovereign states and the people thereof.
I'm all in with you on that. Hopefully, we will speak of this another time, soon.
Thank you ever so much, dear Hostage, for your outstanding essay/post!
In regard to revisiting Marbury v. Madison, I shocked some Freeper last week when he asked me whether or not I thought we should revisit that case and I responded, YES.
Marbury v. Madison was a UNANIMOUS decision by the Supreme Court. Had it not been UNANIMOUS, I suspect that Congress would have pushed back immediately and we would have had a constitutional crisis on our hands.
Congress has power to control the courts including the Supreme Court. Congress can determine how many members should be on the court and cases in which they have original and even appellate jurisdiction. So there is no need for a Constitutional Amendment to reign in the abuse of Power by the Supreme Court. All we need is a bunch of Congressmen and a President who are willing to go to battle with the court when it clearly exceeds its authority such as we have seen in Roe v. Wade and Obergefell.
I would propose first of all that when there is a challenge to the constitutionality of a State Law, that no lower court can have any jurisdiction to hear the case or the appeal. That ONLY the Supreme Court can hear it.
Secondly I would limit the jurisdiction of the court in accordance with the Standard Set by Marbury v. Madison. All criminal trials in this country require a unanimous verdict from the trial court. Anything less than a unanimous verdict results in a mistrial and the defendant is either tried again or released.
I would propose that Congress use its powers to limit the jurisdiction of the Supreme Court in regard to allowing it to make case law overturning any State or Federal law by declaring it unconstitutional. They could make that a much harder burden by requiring that in order for the Supreme Court to issue a valid rescission of any State or Federal Law, that the Supreme Court’s opinion must be Unanimous. That would eliminate all these 5-4 decisions that change the entire future of our civilization.
Further they could limit the scope of any Supreme Court decision on the Constitutionality of a State Law by limiting the effect of the Court’s holding only to the State which was part of the proceeding before it.
Congress could also pass a law that in the event that there is not a unanimous decision on the constitutionality of a law, that Congress would have the power to ratify any decision of the Supreme Court which resulted in a majority other than unanimous. This would eliminate entirely the idea that the Supreme Court has the final say. The PEOPLE should have the final say and in a republic, the people are represented by their elected officials, not some appointed oligarchs.
The Supreme Court might attempt to rule such a law unconstitutional, but then in order to do that, they would have to reach a unanimous verdict.
But there are ways to revisit Marbury and there are certainly legal ways for congress to reign in the court. Making their job EXTREMELY difficult will obviously reign them in quite a bit.
These are powers that Congress has but the question is can we find enough congressmen with the courage to do the right thing.
Right now I don’t see that we could get more than a handful who are willing to challenge the current legal zeitgeist.
We elect men into high office who don’t have a functional moral compass. Its hard to find a structural answer to that.
The only thing that works, is for people who do have a functional moral compass to push back.
AND......... the Presidency..
Congress is BOSS unless they are someone's .... " BITCH " Congress needs to go ROGUE..
DEFUNDING every thing from Congressional AIDES to K-Street and Supreme Courts PERKS..
AND.... most of the Executive Branch Agencys..
----------------------------------------------------
**Uncle Sam is a pervert and an ADDICT..
Needs... Halfway House.. a time out..
an intervention..
by Ted Cruz
“. . . I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law. 1. Because the judges, in the outset, disclaimed all cognizance of the case, although they then went on to say what would have been their opinion, had they had cognizance of it. This, then, was confessedly an extrajudicial opinion, and, as such, of no authority. 2. Because, had it been judicially pronounced, it would have been against law; for to a commission, a deed, a bond, delivery is essential to give validity. Until, therefore, the commission is delivered out of the hands of the executive and his agents, it is not his deed. He may withhold or cancel it at pleasure, as he might his private deed in the same situation. The Constitution intended that the three great branches of the government should be co-ordinate, and independent of each other, As to acts, therefore, which are to be done by either, it has given no control to another branch. A judge, I presume, cannot sit on a bench without a commission, or a record of a commission; and the Constitution having given to the judiciary branch no means of compelling the executive either to deliver a commission, or to make a record of it, shows it did not intend to give the judiciary that control over the executive, but that it should remain in the power of the latter to do it or not.
“Where different branches have to act in their respective lines, finally and without appeal, under any law, they may give to it different and opposite constructions. Thus, in the case of William Smith, the House of Representatives determined he was a citizen; and in the case of William Duane, (precisely the same in every material circumstance,) the judges determined he was no citizen. In the cases of Callendar and others, the judges determined the sedition act was valid under the Constitution, and exercised their regular powers of sentencing them to fine and imprisonment. But the executive determined that the sedition act was a nullity under the Constitution, and exercised his regular power of prohibiting the execution of the sentence, or rather of executing the real law, which protected the acts of the defendants. From these different constructions of the same act by different branches, less mischief arises than from giving to any one of them a control over the others. The executive and Senate act on the construction, that until delivery from the executive department, a commission is in their possession, and within their rightful power; and in cases of commissions not revocable at will, where, after the Senate's approbation and the President's signing and sealing, new information of the unfitness of the person has come to hand before the delivery of the commission, new nominations have been made and approved, and new commissions have issued.
“On this construction I have hitherto acted; on this I shall ever act, and maintain it with the powers of the government, against any control which may be attempted by the judges, in subversion of the independence of the executive and Senate within their peculiar department. I presume, therefore, that in a case where our decision is by the Constitution the supreme one, and that which can be carried into effect, it is the constitutionally authoritative one, and that that by the judges was coram non judice, and unauthoritative, because it cannot be carried into effect.
“I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, and denounced as not law; and I think the present a fortunate one, because it occupies such a place in the public attention. I should be glad, therefore, if, in noticing that case, you could take occasion to express the determination of the executive, that the doctrines of that case were given extrajudicially and against law, and that their reverse will be the rule of action with the executive. If this opinion should not be your own, I would wish it to be expressed merely as that of the executive. If it is your own also, you would of course give to the arguments such a development as a case, incidental only, might render proper . . .
. . . . . Jefferson, letter to George Hay, The Writings of Thomas Jefferson, June 2, 1807 ME 11-213
Thanks, betty, for calling me to this important conversation.
No it isn’t. I’m not saying she can’t run for and be elected because of her faith, what I’m saying is if she is elected she should do the job, the voters hired her to do. If for any reason she can’t, then she should resign.
You need to seriously consider the ramifications of what you espouse. If you cannot see that the end result is a religious test against christianity, you need a solid course in logic and probability.
You are taking the sound-bite approach to politics, which only works if your are stupid. I have not assumed you are stupid. I assumed you are uninformed, based on your post.
I hope you don’t prove me wrong.
Evidently, Thomas Jefferson had no use for the doctrine of judicial review, which Marbury v. Madison asserted for the first time on behalf of the Supreme Court. But Marbury v. Madison was not concerned with executive power at all — though this is what Jefferson seems to be objecting to here. I dunno, but this looks like a straw-man argument to me. It all seems a little disingenuous on his part, especially in light of the fact that he had reasons to be glad that the Court did not issue the writ of mandamus to Madison, compelling him to deliver Marbury's commission.
Marbury was a Federalist; therefore a political enemy of the Republicans, including Thomas Jefferson. Very late in his presidency, President Adams appointed a raft of partisan Federalist judges at the circuit court and lower court levels. The Republicans, among them Jefferson, feared that, The Federalist Party having lost in the polls, these judges would act in concert to frustrate Jefferson's legislative goals. So it seems that Jefferson, if anything, would have been glad that Marbury was denied delivery of his commission, without which he could not sit as justice of the peace for the District of Columbia.
Marbury petitioned the Court on the basis that it had original jurisdiction on mandamus cases. The Court found that it did not; under Article III, it had only appellate jurisdiction. Meaning it could take the case, if it had already been adjudicated in a lower court. The Judiciary Act of 1789, by which Congress authorized the mandamus writ by statute, had been interpreted to mean that the Supreme Court's Article III powers had been enhanced by a congressional act that vested original jurisdiction WRT writs of mandamus in the Supreme Court. Thus judicial review of a statute by the Court came into play. The Court found that, even though Marbury was entitled to his commission, and that it should have been delivered to him, the Court did not have any Article III power to issue the writ. If this had been an appellate case, the outcome would likely have been very different. The Court found, however, that it had no original jurisdiction in the matter.
This was actually a case where the Court pointed to a constitutional limitation on its own power. But in the process, it held the relevant sections of the Judiciary Act unconstitutional — because it did not comply with the plain language of Article III. Any conflict between the Constitution and statutory law must be resolved in favor of the Constitution. To Chief Justice John Marshall, that was precisely what judicial review was all about.
Alexander Hamilton, in Federalist No. 78, proposed that judicial review of congressional statutes is essential, because the federal government has only the limited authority conferred on it by the terms of the Constitution. All other political power and sovereignty is reserved to the states and the people. Thus judicial review was essential to ensuring that the liberties of the people were not infringed by passing congressional majorities. Chief Justice Marshall appears to have followed Hamilton's view.
Of course, a lot has changed since then. Certainly it cannot be said that today's Supreme Court ever limits its own power. Rather, the current Court seems ever intent on expanding them, into areas that can only be called legislative, not judicial. This is the kiss of death to a written constitution and, as we have repeatedly seen in recent times, the liberties of the people it upholds, defends, and protects.
Thank you so much, dear YHAOS, for these writings from the American Sphinx....
Indeed, a constitutional crisis that I would not be surprised President Jefferson would have worked "behind the scenes" to foment. This avowed champion of co-ordinate, separate yet equal branches would, in all likelihood, have ignored any writ of mandamus delivered to him, had the Court decided Marbury the other way — thus to undermine the standing and reputation of the Court. We must not forget that John Marshall had been secretary of state in the Federalist Administration of John Adams. Which, given the political climate of the day, meant that Marshall was Jefferson's enemy. Indeed, apparently the latter detested the former. So it was also personal on TJ's part, not just political jockeying for preeminence.
You wrote:
I would propose that Congress use its powers to limit the jurisdiction of the Supreme Court in regard to allowing it to make case law overturning any State or Federal law by declaring it unconstitutional. They could make that a much harder burden by requiring that in order for the Supreme Court to issue a valid rescission of any State or Federal Law, that the Supreme Court’s opinion must be Unanimous. That would eliminate all these 5-4 decisions that change the entire future of our civilization.What a marvelous idea! This, and your other proposals, would certainly rein in this runaway Court. And of course, you are so right that Congress has the constitutional power to effect such measures. But the problem seems to be: How many defenders of the Constitution are there in Congress, these days? I could name but a few.
So nothing gets done....
If Congress refuses to address SCOTUS's assault against the Constitution, thus the liberties of the States and the People, then maybe there is no other real alternative to an Article V Convention of the States.
That shouldn't be necessary, and wouldn't be necessary, if Congress would only do its job.
But if Congress fails, then it's up to the States and the People to rectify these wrongs. The Article V COS is the constitutional means to do so.
Thank you so much, P-Marlowe, for your truly wonderful ideas!
Hard, but not impossible. Certain structural amendments could leave these amoral, unprincipled politicians with a tad less wiggle room....
To your second point, the need for popular push-back to the horrors perpetrated by this illegitimate Court. I've been thinking a lot about that lately.
To me, the main point is: Ours is a system of government that rests entirely on the consent of the governed. If a citizen complies with a law that is null on the basis of the Constitution, then it can be presumed that he has given his "consent" to it.
It seems to me citizen "push-back" necessarily entails widespread civil disobedience to such a law. But the citizen must be prepared to bear the "penalties" that would be sure to follow....
Yes.. rise up with pitchforks and torches as they say...
and organize, angry, determined and resolute even more than the progressive socialist are, always are..
APATHY will KILL the United States.. the reverse of APATHY WORKS..
Call it "angry".. even if it seems moderate it MUST look like angry.. be perceived as angry.. totally pissed off angry..
Even IF your not angry; it MUST appear so.. to SPREAD and be accepted by the "weaker" sorts.. whom are not really angry about "things" they don't really know about.. (understand)
LIKE; POLITICS, CIVICS, HISTORY(American and World), and Patriotism.. even morals and dialectic..
SOooo; I call out.. shout from my keyboard.. GET PISSED OFF.. -OR- make it appear so.. even IF you are laughing so hard at Hellary Clinton and Obama and the GOPe.. and slapping your leg..
** THERE I SAID IT.. Mrs;
Sounds like a fine plan, dear 'pipe; except people don't use "pitchforks and torches" anymore. You know what they would be using. Are you advocating armed insurrection? And then telling us to believe a "minority" could successfully carry it out?
Though that model worked during the American Revolution, the seat of "enemy power" then was far, far away. Not so with the present seat of "enemy power," which is very much immediately present and infiltrated into all levels of American society.
I'm already plenty "pissed off." But that doesn't mean I'm irrational.
Once again let me make a plug for an Article V Convention of the States for the Purpose of Proposing Amendments to the U.S. Constitution.
It is the constitutional way for the States and the People to change our fundamental rule of law in the face of congressional inaction, a defaulting Congress that is unwilling to correct manifest defects in the federal system of government, which work disproportionately to undermine the Tenth Amendment powers of the States and the People thereof. Even though Congress manifestly has the constitutional warrant to fix such problems.
Article V clearly says that what the Congress will not do, the States, working in concert, can do.... It seems all the recent, most culturally offensive SCOTUS decisions (e.g., Roe v. Wade, and now Obergefel) have entailed unconstitutional invasions on the sovereign powers of the States, as reserved by the Tenth Amendment.
It doesn't help at all that the Seventeenth Amendment all by itself gutted a main voice for States trying to preserve their Tenth Amendment interests against federal encroachment. Since 1913, senators are directly elected, not appointed by their state legislatures as before.
So what interest does the Senate represent, if not (as originally intended) the interest of their respective states? The interest of the people is already represented in the national legislature. It appears popular election of senators is a redundancy. So, who or what does a senator represent, nowadays?
Given recent history, one would gather that the Senate has become quite independent from its local constituents, and has become little more than an echo chamber of disputes in national politics.
So, one hopes that an Article V COS would entertain repeal of the Seventeenth Amendment, to restore the Senate as a voice for state and local governments, who are increasingly finding themselves under the thumb of the Leviathan in Washington.
Repeal of the Seventeenth would be an example of a "structural" amendment. Compare this with an "aspirational" amendment: an example would be, say, a "marriage amendment." The only aspirational amendment I can think of that actually got ratified was the Eighteenth, Prohibition. We all know how that worked out: rampant organized crime, public corruption at all levels, and eventual repeal.
An aspirational amendment deals with desired outcomes. A structural amendment deals with rules of the road. A rule of law cannot comport with shifting climates of "desire for outcomes." For one thing, one man's desired outcome might be another man's curse. Beyond that, an aspirational amendment presumes a unity of public thought. If there were such a thing, we wouldn't need the First Amendment....
A structural amendment deals with constitutional procedure, not with outcomes. It facilitates, not inhibits, free speech. But it imposes a rule on what mere speech can achieve in public life. It disciplines public speech towards public ends without the need of a governmental censor.
In conclusion, dear, dear 'pipe, I hope we will have an Article V COS, and that soonest.
If that doesn't work out, we can always go to "pitchforks and torches."
But let's give the Article V COS a chance, first.
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