Posted on 04/09/2002 10:21:11 PM PDT by KrisKrinkle
I think President Washington had in mind the type of opposition you are receiving on this thread when he wrote:
"The unity of government which constitutes you one people is also now dear to you. It is justly so, for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee that, from different causes and from different quarters, much pains will be taken, many artifices employed to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts."
--George Washington, farewell address.
So hang in there.
Walt
There are two quotes from Fed 28 that you have not addressed:
- They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.
- The State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.
Makes a good case for states rights and sovereign rule - especially in extreme abuses of security and liberty.
OK, which is it going to be? On the one hand you're telling me that the supremes have no legitimate power, and that Marbury vs. Madison is a usurpation. Now you're suggesting that the supreme court does have legitimate power that, in the hands of honest judges, can curb the federal excesses you decry. (I can say this because your example requires the presence of corrupt justices who are unwilling to properly exercise the duties of the Supreme Court.) Which is it going to be -- or do you change sides depending on expedience?
Following your previous comments, I'm led to believe that you'll either 1)be turning the spigots or 2)hiding in your home doing nothing.
I'm led to believe that you are prone to making stupid and unwarranted accusations.
Unfortunately, you reveal the fact that you never visited the site as it supports the Supreme Court's decision to annex those additional powers.
Sorry, but I did visit the site, and was unimpressed.
The article is a partisan document which takes a one-sided stand on Marbury vs. Madison. It does not address the merits of that case, and it requires some pretty significant leaps to get from the decision itself, to the excesses of the Warren Court.
Rather than depending on this tendetious source, I suggest that you read the decision itself.
The part you're upset about makes its way into the decision beginning with this statement: This brings us to the second enquiry; which is, 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy?
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
Chief Justice Marshall then goes on address many of the issues that have been brought up in this and other threads.
The basic question Marshall addresses is whether an act, repugnant to the constitution, can become the law of the land, and if so, is there any means available other than brute force to rescind it.
His answer is, essentially, yes: The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained....
Thus, 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.
Which is to say, judges must of necessity have the power to decide whether a particular law which has been appealed to them, is consistent with the Constitituion; and if not, to declare that law void.
If that were not so, then Congress could pass any law, and we would be constitutionally bound to follow it. If you want tyranny, that's the very best way to get it.
It's a good read, in which Marshall addresses a number of the issues that have been raised on this and other threads. The basic principle is sound, and Marshall's logic is impeccable.
The problem is, he's arguing both sides of the issue here. If Marbury vs. Madison is invalid (as he claims on side 1), then the judges have no power to address unconstitutional laws. There's no reason to drag judges into the fray.
On side 2, however, he turns around and posits judges that are in the president's pocket -- their mere presence in the equation represents a tacit assumption that they have (if only in their unwillingness to use it) the power which he denies they have back on side 1.
Meanwhile, the scenario has only two players: a president and a supreme court. There is no mention of the Congress, nor any consideration of how this nation could end up with a Congress that would be willing to pass the legislation in question.
Beyond that, there is no point in addressing his hypothetical (and deeply flawed) scenario, as he has already decided that I'm a nazi.
See reply # 10.
A good question. I like to think that I would resist a truly tyrannical government. However, there are a lot of factors that would govern how I responded to it.
For example, my willingness to take up arms depends in part on how many of my neighbors were willing to take up arms with me, and how likely my action is to result in the deaths of my wife and kids.
The threshold for taking less extreme action is quite a bit lower.
At least you want to try to do it within the framework of the present organization and not go straight to secession without passing go or collecting $200 or anything.
Let the socialists go their way and the producers go the other.
I understand. But I'm not sure I want to give in that easily. On one level, I've got an investment of time, money and personnel interest in my present circumstances that I am loath to give up. On another level, I am not sure we do not have an obligation of duty and honor to our forefathers to persevere.
Doesn't the lack of empowermrnt to decide what is constitutional impair the ability to uphold the Constitution?
If they can't decide what is constitutional, doesn't that make them likely to do things that are not constitutional and require their citizens to wait for the courts to straighten it out? (Which does happen fairly often I guess.)
I don't understand your...
The first step on the road to knowledge and wisdom. :)
No offense meant, just a light attempt at philosophical observation.
Based on the Supreme Court ruling, the state's nullification action is unconstitutional: According to Article VI, the state's officials and judges are explicitly bound to uphold the Constitution, including this particular issue.
You may find the following of interest:
On the 29th of May, 1787, the [constitutional] convention was organized, and Mr. Randolph, of Virginia, offered sundry resolutions resuming the word national, though it had been rejected by all the states, and proposing "that a national legislature shall have the right to legislate in all cases in which the harmony of the United States may be interrupted by the exercise of individual legislation, and to negative all laws passed by the several states, contravening, in the opinion of the national legislature, the articles of the union, or any treaty under the union." The resolutions also proposed "a national executive and a national judiciary; that the executive and a convenient number of the national judiciary ought to compose a council of revision, with authority to examine every act of the national legislature, before it shall operate, and every act of a particular legislature, before a negative thereon shall be final; and that the dissent of the said council shall amount to a rejection, unless the act of the national legislature be again passed, or that of a particular legislature be again negatived by ____ of the members of each branch."
It is worthy of particular observation, that in this project, the constructive supremacy [i.e., the power to define the meaning of the Constitution and the limits of its own powers] now claimed for the federal government "over the articles of the union," was proposed to be given to a national government; because the actual consideration of this identical power, and its absence from the constitution as it was finally adopted, seems to be irresistible evidence that it does not exist.
John Taylor, New Views of the Constitution of the United States, 1823 (emphasis in the original)
Mr. Taylor goes on at some length, but his analysis is irrefutable. You may also wish to refer to Thomas Jefferson's Kentucky Resolutions of 1798, and James Madison’s Report on the Virginia Resolutions of 1800. In the latter, the primary ‘author of the Constitution’ states that the federal courts were not given the final say regarding the meaning of the Constitution, no matter what Mr. Justice Marshall may have believed. An antiquated point of view? Consider Mr. Justice Scalia’s comments at The Catholic University of America in 1996:
“The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means. Or that the Supreme Court shall have the authority to disregard statutes enacted by the congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn't say that anywhere. We made it up.”
Your point of view appears to be revisionist in nature...
It's certainly possible, though not intentional.
As opposed to your comment, though, I offer you a link to the Marbury vs. Madison decision, which not only predates Mr. Taylor (and thus somewhat absolves me from charges of revisionism), but which offers some very good reasons for saying that the Supreme Court (or some body) must have power to decide on the Constitutionality of laws.
We can argue (and probably agree) about whether the present scope of USSC constitutionalizing is excessive. Consider, however, the negative implications of removing that power entirely.
There have been a lot of learned comments about the Constitution, the law, the courts, precedent, history and so forth. But those comments assume that the matters at hand are conclusively settled well within the bounds of a complex, ordered, more unified than not state of Society. However, these matters are conclusively settled closer to the boundary of the state of Society, where things are less complex, less ordered, less (if at all) unified.
These matters are conclusively settled when one side or the other reaches for a can of "WhipYerButt" and vows to open it and vigorously apply the contents. If the other side does the same, things can get nasty. By this point, one or both sides may feel betrayed (possibly correctly) and therefore justified (possibly correctly) in going outside the constraints of the state of Society to settle the issue.
Or not. One or both sides may decide that the benefits are not worth the costs. One or both may give in, or both may seek a way around the impasse. After all, balance of power is inherent to our system and this implies the occasional confrontation that doesn't lead to full fledge conflict. (And the can of "WhipYerButt" is always on the shelf. in reserve.)
It's not just a balance of power between the Executive, Legislative and Judicial Branches of the Federal Government. It's a balance between States and State Factions; between the national government and the state governments, and between the citizens and all the rest of it if the citizens care to exercise their power.
That begs the question of whether or not the citizens care to exercise their powers. Every time a jury nullifies, citizens are exercising their power. Citizens exercised their power (by showing utter disregard for the laws in question among other things) and the Constitution was changed and Prohibition ended. They exercised their power again during the Civil Rights movement, and legal interpretations and laws were changed. (Isn't this all a form of informal nullification?) And much if not all of this has happened closer to the boundary of the State of Society, not deeper in the interior.
The answer to the question of whether or not the citizens care to exercise their powers is "sometimes, if they see importance in the issue." The American people have been underestimated before. They underestimated each other at the beginning of the War Between the States, when each side thought it would be over shortly. Many, not all of the Japanese underestimated them prior to WWII. Bin Ladin and company underestimated them.
The country did not start out perfectly. However, we were given a foundation from which we could strive for improvement and not stagnate in the status quo. And some of us are always engaged in that striving. And when those who are engaged can convince enough of the others to join them, the bottom line is: "It. Don't. Matter."
What say you Mr. Williams?
Ms Coulter?
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