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 ...
Excellent post, betty boop.
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?
YES... look what Donald Trump has done all by hissef with little help..
What about a million TRUMP’s..
DAMN the torpedos full speed ahead..
NUTZ to the “German” generals at Bastogne..
” A good plan violently executed now is better than a perfect plan executed next week. “-George S. Patton
“With the monstrous weapons man already has, humanity is in danger of being trapped in this world by its moral adolescents.” -Omar N. Bradley
Are YOU willing to give your blood(and the blood of your loved ones) to save this REPUBLIC?.. (if need be)
If NO... then it WILL NOT BE SAVED.. the BAD guys WILL DEMAND IT.. i.e. blood
Better they loose THEIR BLOOD.. in obscene amounts to make moving against you and yours... UNWISE..
FREEDOM costs blood ALWAYS.. to get it, retain it, and HOLD IT..
Freedom is very expensive.. the real WAR now today is DOMESTIC..
The ENEMY is in the CAMP.. and has taken the Castle..
And the Court delivered of itself the additional opinion that it had the sole discretion in all cases respecting the constitutionality of all laws: an issue not laid before the Court in this instance, therefore “extrajudicial” and not, in Jefferson’s opinion, an opinion to be properly decided at that time.
George Will POS I hope Trump rips up that GOP pledge on national TV and buries the GOP in the swamp it now is.
And the Court delivered of itself the additional opinion that it had the sole discretion in all cases respecting the constitutionality of all laws: an issue not laid before the Court in this instance, therefore “extrajudicial” and not, in Jefferson’s opinion, an opinion to be properly decided at that time.
The Constitution has Firstly ONE Function and one function ONLY..
TO LIMIT THE FEDERAL GOVERNMENT..
SECOND function it served THIS purpose:
The was written down to be the Charter or Basis of all Law and Prudence.. the MARK that every law submitted to.. And NOT overlooking the FIRST FUNCTION..
THIRD: the Supreme Court was CREATED to insure THOSE two functions were met and carried out..
** Not to make law or to SPIN Law.. but to over see that all law duly reached the BAR of Divided Federal Government and prudence according to the CHARTER..
A simple task that any NON Lawyer but prudent person could do..
The American political system has had to deal with baked in evil before.
The problem here is that something that is evil is claiming that resistance to it is, in fact, another instance of baked-in evil.
With no spiritual compass (which undergirds moral compasses) America is groping around desperately. It is classic spiritual battle. We were unable to escape from the bible after all. Would not embrace the Lord and with Him, His virtues, so we embraced the other guy and his vices. Both warned about.
I don’t see where Trump has said it is time to endorse the whole GOP. His manner clearly states otherwise.
I don’t see where Trump has said it is time to endorse the whole GOP. His manner clearly states otherwise.
MANY republicans are not republicans.. i.e. for the Republic..
HAVE no intention of being for THIS REPUBLIC....
They are for DEMOCRACY.. which brands them with an ideology tattoo of being a DEMOCRAT..
THIS REPUBLIC is NOT a Democracy cannot be as long as the Constitution is in effect.. The US Constitution does not have the WORD DEMOCRATIC in it anywhere.. ON PURPOSE..
Democracy is Mob Rule by mobsters in every iteration every place at all times completely every where it is tried..
Democracy is a Political Disease with the symptoms of SOCIALISM, Communism, and Fascism.. Everywhere.. and leads to Dictatorship..
The Dictatorship of the Proletariat..
The UK, Canada, all of Europe, Eastern URP, Russia, China, most of Africa, all of Central and South AMerica ARE DEMOCRACYS..
Even Sharia Law is Democratic.. i.e. Mob Rule by mobsters..
what is the point of this jag?
what is the point of this jag?
That TRUMP is / was / remains a democrat..
The idea of sticking labels on people based on what they did at some time and declaring that a permanent state of affairs isn’t God’s. It’s man’s.
Or let’s put it another way. If to play ball in our modern political system is what it means to be a democrat, then even Ted Cruz is a democrat. We have reductio ad absurdam’ed ourselves.
Depends on you mean by democrat.. democrats are democracy..
What is Jefferson objecting to here? The doctrine of judicial review? The fear that a powerful supreme court would be in the position of overruling state courts? Or horning in on the powers and prerogatives of the other two separated federal branches? And what does "extrajudicial" mean to him in this context — something not clearly spelled out as an Article III warrant?
We have his answer directly, in a letter he wrote to Abigail Adams in 1804:
The efforts of Federalism to exalt the Judiciary over the Executive and Legislative and to give that favored department a political character and influence ... will probably terminate in the degradation and disgrace of the judiciary.It seems clear that Jefferson saw Marbury as an opportunity for a political contest, an early test of the recently fledged Constitution.
As John Brigham, professor of political science at the University of Massachusetts, Amherst, points out: "The Republican party of Thomas Jefferson challenged Federalist dominance of the judiciary." They wanted all of John Adams' "midnight judges" impeached (one of whom, oddly enough, was John Marshall himself, who moreover was formerly secretary of state in the Federalist Adams Administration).
Jefferson's concern WRT Marbury v. Madison seems to be mainly political; at the same time, Chief Justice Marshall seems mainly to be concerned that Article III — specifying the only non-political branch of the three co-ordinate, separate, and equal branches — would be drawn into political controversies.
Here's an excellent backgrounder from Professor Brigham:
Marbury's case threatened to plunge the justices into a political thicket. They readily calculated the furor that a writ of mandamus issued against Jefferson's administration would stir at a time when more radical Republicans were bent on stripping the Court of its power. At best, the president might have simply ordered Madison to disregard the Court; at worst, he might have lent even more of his prestige to efforts already under way by the radical wing of his party in Congress to limit sharply the Court's power.Note the distinction between "judicial review" and "judicial discretion."
Marshall appreciated these exigencies. The first part of his opinion sustained Marbury's claim on the basis of the vested-rights doctrine, an outgrowth of the natural-rights philosophy of the Revolution, that held certain rights were so fundamental that they were beyond government control. The Court, with its responsibility to preserve fundamental law, was obligated to protect such rights. Distinguishing between political and other rights, Marshall disallowed judicial concern with the former on the grounds that the protection of political rights belonged instead to the popularly accountable political branches [i.e., the Article I and II branches]. The Court, Marshall said, drew its authority from the well of popular sovereignty, but it could exercise that power only in settling controversies involving fundamental law rather than politics.
What Marshall gave to Marbury in the first half of the opinion he took away in the second. Although a writ of mandamus was in order, the Court could not issue it. The chief justice arrived at this conclusion through a close textual reading of section 13 of the 1789 [Judiciary] act and also Article III of the Constitution. Congress might subtract from the Court's original jurisdiction, but Congress could not add to it — as section 13 did — because Article III had already established the Court's jurisdiction fully.... Marshall worried that an expansion of the Court's jurisdiction [by a legislative act] would thrust the justices into political disputes that the political branches themselves could not settle. Such involvement, he concluded, would prevent the Court from acting primarily as the legal institution he believed the departmental theory required.
Because of judicial review the justices would not enforce an unconstitutional act. Through his opinion in Marbury, Marshall simultaneously limited and expanded the Court's power; less power became more. The chief justice accepted the inherent limitation placed on the scope of judicial power, but he boldly asserted that the Court had the responsibility to say what the Constitution meant.
Marbury was a problematic constitutional case in a difficult political setting. Marshall's opinion was defensive; it sought to keep the Court free of political pressures by limiting its role to clearly legal as opposed to political issues. Marshall did not exercise judicial discretion in the modern sense of the word. Interpreting law was not synonymous with making it. Marbury did not receive his commission, but Marshall used the occasion to pronounce the essential elements of judicial review. — The Oxford Companion to the Supreme Court of the United States, 1992 ed., p. 465–466 [emphasis added]
We certainly have a whole heck of a lot of the latter nowadays. In the "judicial discretion" process, the Supreme Court has converted itself into the Supreme Legislature, using the Supremacy Clause as a club with which to beat the States and the People (not to mention the other two branches of the federal government) into senseless conformity and submission to the whimsical dicta of an illegitimate oligarchy, the members of which enjoy lifetime appointments to office, notwithstanding the provably bad behavior of some now sitting on the Court....
Thank you ever so much for sharing your thoughts on such a fascinating topic, dear brother in Christ!
Thank you betty boop for your refined research and summaries. We are all enriched by your exposition.
I will read your post again to the level of its granularity but reading it over in cursory fashion leads me again to the same conclusion.
That conclusion is that while this is a wonderful philosophical debate and while it is amazing to marvel at Jefferson’s clairvoyance, the direction the Marbury v. Madison discussion takes us is that it provides a meaty entree for legal philosophers to make a hobby of.
Marbury v. Madison has been around in law schools seemingly since the early years of the republic especially Harvard Law.
In order to ‘see the light’ using a resolution on Marbury v. Madison would necessitate a plenary agreement among the legal community at large and their network of political connections. There is no impetus to effect such a movement to the extent that change would be ensured to our liking.
But I am not defeated. I continue to see that Article V is the sure way to effect change to our liking. And I am boosted by facts that people today have access to resources, comments and opinions by way of the internet that allows for them to carefully craft a lasting legacy of change, and by the fact that the results can be had in weeks; yes weeks.
A state-led Article V movement is BOTH proposed and ratified by the same aggregated bodies of state legislatures. That means that 38 states can propose and ratify an amendment to the US Constitution in days. Only a little more time is needed for the National Archives to record the counts and to send out to all branches of the federal government of the new amendment(s). As soon as the National Archives receives by certified copy and mail the ratification proceedings signed by leaders of 38 state legislative bodies, the new amendment becomes a part of the US Constitution.
And if the amendments are crafted properly, the states will have full power of administering and enforcing the new amendments so that nothing will be left to the whims and desires of personnel and officials inside the federal government.
We’ve discussed before examples of the latter and how it can be done.
George Will certainly is an effete and impudent snob, and he's also a nattering nabob of negativism.
To limit the powers of the Federal Government? No Argument from this quarter. The balance of your remarks seem a little garbled, so I am unable to understand your meaning. My fault, surely.
“Not to make law or to SPIN law”
It was never thought by The Founders that the Supreme Court would be permitted to make law. As for your use of the word “SPIN,” the meaning is obscure. Again, surely my failing, as before.
It is to this that Jefferson objects, the issue not being laid before The Court, therefore not qualifying for their judicial notice.
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