Marbury v. Madison

[Libsmasher]

Ask any lib poly sci prof (like there is any other kind ), or any lawyer, what he thinks of this USSC decision, and his eyes will glow, he'll get practically orgasmic. This is the decision by which the USSC usurped an imaginary power of "judicial review", an ability to strike down laws passed by congress. This alleged power appears nowhere in the constitution, and such a sweeping and paramount power certainly would have been explicitly stated by the Founders if any such thing were intended.

Libs love it, because they are growing ever more fascistic and anti-democratic as the years go by, they are authoritarians at heart, and they just LOVE it when they only have to get the approval of lib judges to wipe away the will of the people.

The decision itself is probably the worst USSC decision in history, other than Roe v. Wade. Here are criticisms from wiki

A minority of legal scholars have raised questions about the logic Marshall used in determining the Judiciary Act unconstitutional, and hence the legitimacy of judicial review. They reason that Marshall selectively quoted the Judiciary Act, interpreting it to grant the Supreme Court the power to hear writs of mandamus on original jurisdiction.[22] These scholars argue that there is little connection between the notion of original jurisdiction and the Supreme Court, and note that the Act seems to affirm the Court's power to exercise only appellate jurisdiction.[23] Furthermore, it has been argued that the Supreme Court should have been able to issue the writ on original jurisdiction based on the fact that Article III of the Constitution granted it the right to review on original jurisdiction "all cases affecting . . . public ministers and consuls," and that James Madison, Secretary of State at the time and defendant of the suit, should have fallen into that category of a "public minister [or] consul."[24]

Questions have also frequently been raised about the logic of Marshall's argument for judicial review, for example by Alexander Bickel in his book The Least Dangerous Branch. Bickel argues that Marshall's argument implies an unrealistically mechanical view of jurisprudence, one which suggests that the Court has an absolute duty to strike down every law it finds violative of the Constitution. Under Marshall's conception of the judicial process in Marbury, judges themselves have no independent agency and can never take into account the consequences of their actions when deciding cases—a notion that has been attacked by Richard Posner. More generally, Marshall's argument for the notion of a judicial obligation to strike down laws "repugnant to the constitution" presupposes some sort of underlying meaning to the text of the U.S. Constitution which judges can divine, a notion contested by scholars Paul Brest and Duncan Kennedy, among others, as well as Posner

Marbury can also be criticized on grounds that it was improper for the Court to consider any issues beyond jurisdiction. After concluding that the Court lacked jurisdiction in the case, the further review regarding the substantive issues presented was arguably improper.[25] Also, it has been argued that Justice Marshall should have recused himself on the grounds that he was still acting Secretary of State at the time the commissions were to be delivered and it was his brother, James Marshall, who was charged with delivering a number of the commissions.[26]

Because the Constitution lacks a clear statement authorizing the Federal courts to nullify the acts of coequal branches, critics contend that the argument for judicial review must rely on a significant gloss on the Constitution's terms.

 

[dahermit]

This is the decision by which the USSC usurped an imaginary power of "judicial review", an ability to strike down laws passed by congress. This alleged power appears nowhere in the constitution, and such a sweeping and paramount power certainly would have been explicitly stated by the Founders if any such thing were intended.

Libs love it, because they are growing ever more fascistic and anti-democratic as the years go by, they are authoritarians at heart, and they just LOVE it when they only have to get the approval of lib judges to wipe away the will of the people.

Not only do the Libs love it, but people like me love it when they rule in favor of a personal right when it comes to the Second Amendment. So it seems that most people have no quarrel with the Supreme Court as long as they support the views of those same people. I doubt if you would be so unhappy with the court if they had ruled the other way in Row v. Wade.

 

[Libsmasher]

Not only do the Libs love it, but people like me love it when they rule in favor of a personal right when it comes to the Second Amendment. So it seems that most people have no quarrel with the Supreme Court as long as they support the views of those same people. I doubt if you would be so unhappy with the court if they had ruled the other way in Row v. Wade.

Uh, you're wrong. Almost by definition, rulings conservatives like will adhere to the plain meaning of the constitution - the Washington DC gun law ruling recently was a simple upholding of a crystal clear right. Roe v. Wade on the other hand, was one of the most convuluted unconvincing intellectual exercizes that has ever occurred. First, they imagined an unprecedented right to privacy, and then they said that implies a right to abortion, and with an entirely arbitrary cutoff for the right, that wasn't grounded in any fact, law, ethics or even reason. If you've never read the whole decision, you should do it - it's amazing.

But in any case, i will take my chances with a democratically elected legislature, instead of an unelected court-for-life - geez that'spretty close to the definition of king.

 

[vyo476]

The Supreme Court have made some pretty crappy decisions. No one who's heard of Dred Scott would dispute that.

Still, people not only tolerate it's existence, but attempts to "subvert" it in the past have been met with violent resistance. Recall the Judiciary Reorganization Bill of 1937 - the piece of legislation that even the people of the day referred to as FDR "going too far." The Supreme Court of the earlier 30s had been pretty hostile towards Roosevelt, striking down a number of New Deal programs (those New Deal programs were, by the way, enacted by a democratically-elected legislature - one that you would have been proud of, Libsmasher?). Roosevelt attempted to pass legislation that would have given him the ability to appoint new Supreme Court justices as he saw fit - in essence, allowing him to pack the court. The people and the legislature were overwhelmingly opposed to it - they didn't want to see anyone subverting the Court, even if the Court was striking down the legislation that they voted people into office for.

My question is: What would you like to do about the Supreme Court?

 

[Libsmasher]

The Supreme Court have made some pretty crappy decisions. No one who's heard of Dred Scott would dispute that.

Nor Plessy v. Ferguson, nor Bush v. Gore, nor Kelo v. City of New London, nor many more.

Still, people not only tolerate it's existence,

They need to have their consciousnesses raised.

but attempts to "subvert" it in the past have been met with violent resistance. Recall the Judiciary Reorganization Bill of 1937 - the piece of legislation that even the people of the day referred to as FDR "going too far."

Sure - FDR's attempt at packing the court was a brazen power grab, but that doesn't mean people won't understand the unacceptability of the USSC's 200 year old power grab when/if it is explained to them.

The Supreme Court of the earlier 30s had been pretty hostile towards Roosevelt, striking down a number of New Deal programs (those New Deal programs were, by the way, enacted by a democratically-elected legislature - one that you would have been proud of, Libsmasher?).

Those USSC decisions were justified, and I'm MUCH happier with the decisions of an elected body that sometimes makes bad decisions, even occasionally very bad ones, since new members come all the time and mistakes aren't written in stone. Compare that with the justices whose decisions are worshipped as the manifest "law of the land", like tablets handed down to Moses.

My question is: What would you like to do about the Supreme Court?

Simple. they go back to their constitutional mandate of deciding cases with two parties that rise to their level. The review power is removed. All previous striking down of laws remains in effect, until and unless they are reinstated.

Also, terms are established for justices not exceeding ten years. Maybe 15.

 

[vyo476]

Sure - FDR's attempt at packing the court was a brazen power grab, but that doesn't mean people won't understand the unacceptability of the USSC's 200 year old power grab when/if it is explained to them.

Timing is a key factor. Marbury vs. Madison was decided in 1803, when the Constitution was almost sixteen years old. Most of the founding fathers, Washington of course excluded, were still around in 1803. I can't help but think that if Marshall's judicial review had violated what had been intended by the Constitution, the founders would have raised holy hell. I've never read anything by any of them commenting on judicial review. Have you?

Those USSC decisions were justified, and I'm MUCH happier with the decisions of an elected body that sometimes makes bad decisions, even occasionally very bad ones, since new members come all the time and mistakes aren't written in stone. Compare that with the justices whose decisions are worshipped as the manifest "law of the land", like tablets handed down to Moses.

No Supreme Court decision is "written in stone." Furthermore, which branch of the government is hero-worshipped by the people is subjective, relative to the popularity of their decisions. During the early half of the nineteenth century, Henry Clay, John C. Calhoun, and Daniel Webster were all members of Congress, beloved by the public for their ability to keep the country out of war. In retrospect we see that their abilities only delayed the war, but that's immaterial; the people of the day tended to like the three of them a lot. There was outrage when Clay's Missouri Compromise was struck down by the introduction of popular sovereignty in the Kansas-Nebraska Act. (I do hope I have all those right - I'm quoting from memory, only a couple minutes before class starts).

Basically, if you dislike which branch of government is approved of by the public, just wait a little while for the wind to shift. It always does.

Simple. they go back to their constitutional mandate of deciding cases with two parties that rise to their level. The review power is removed. All previous striking down of laws remains in effect, until and unless they are reinstated.

Who, then, would you say deserves the power to review laws? Congress? Congress already does things at the relative speed of a disabled, undermotivated snail.

Or would you simply do away with the concept of review altogether?

 

[Libsmasher]

Quote:
Sure - FDR's attempt at packing the court was a brazen power grab, but that doesn't mean people won't understand the unacceptability of the USSC's 200 year old power grab when/if it is explained to them.

Timing is a key factor. Marbury vs. Madison was decided in 1803, when the Constitution was almost sixteen years old. Most of the founding fathers, Washington of course excluded, were still around in 1803. I can't help but think that if Marshall's judicial review had violated what had been intended by the Constitution, the founders would have raised holy hell. I've never read anything by any of them commenting on judicial review. Have you?

Sure. In 1804 John Adams (in France) wrote to Abigail Adams: "[T]he opinion which gives to the judges the right to decide what laws are Constitutional and what not, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch."

More generally, Hamilton wrote about the judiciary branch of the federal government in Federalist 78 "[the judiciary] will always be the least dangerous to the political rights of the constitution, because it will be least in a capacity to annoy or injure them." and "[the judiciary] is beyond comparison the weakest of the three departments of government; that it can never attack with success either of the other two"

Boy, would HE be surprised if he saw how things turned out.

Quote:
Those USSC decisions were justified, and I'm MUCH happier with the decisions of an elected body that sometimes makes bad decisions, even occasionally very bad ones, since new members come all the time and mistakes aren't written in stone. Compare that with the justices whose decisions are worshipped as the manifest "law of the land", like tablets handed down to Moses.

No Supreme Court decision is "written in stone."

Yeah, it can overturn itself (very rare). And it can be overturned with a constitutional amendment - extremely difficult and how often does it happen? Plessy v. Ferguson lasted 58 years.

Furthermore, which branch of the government is hero-worshipped by the people is subjective, relative to the popularity of their decisions. During the early half of the nineteenth century, Henry Clay, John C. Calhoun, and Daniel Webster were all members of Congress, beloved by the public for their ability to keep the country out of war. In retrospect we see that their abilities only delayed the war, but that's immaterial; the people of the day tended to like the three of them a lot. There was outrage when Clay's Missouri Compromise was struck down by the introduction of popular sovereignty in the Kansas-Nebraska Act. (I do hope I have all those right - I'm quoting from memory, only a couple minutes before class starts).

I should change my comment to mean worshipped by the establishment, not ordinary people. How often has one heard or read some liberal pompously reminding everyone that pro-choice abortion is the "law of the land", in a tone that suggests it's the equivalent of the Magna Carta?

Basically, if you dislike which branch of government is approved of by the public, just wait a little while for the wind to shift. It always does.

Waiting for the USSC to "shift" is not "waiting a little" - eg it's been predominately liberal for almost 70 years.

Quote:
Simple. they go back to their constitutional mandate of deciding cases with two parties that rise to their level. The review power is removed. All previous striking down of laws remains in effect, until and unless they are reinstated.

Who, then, would you say deserves the power to review laws? Congress? Congress already does things at the relative speed of a disabled, undermotivated snail.

Or would you simply do away with the concept of review altogether?

Do away with it completely - review isn't appropriate to legislation in a democracy - only disputes between parties, resolveable with the existing law, not overturning the law. Do we live in a democracy, or don't we? The USSC is a handful of people who, experience has shown, can twist the constitution to get whatever result they want. They aren't elected and can stay there for decades.

Side note: Their periphenalia is offensive to me. They're called "justices", not judges, as if they physically incorporate justice, as if they were gods. The USSC building is also made to loke like a temple. They wear robes like priests, and sit on a high dais, a throwback to monarchical practices. The federal government ought to move them to space in an office building, and turn their building into a museum.

 

[Mr. Carpenter]

Timing is a key factor. Marbury vs. Madison was decided in 1803, when the Constitution was almost sixteen years old. Most of the founding fathers, Washington of course excluded, were still around in 1803. I can't help but think that if Marshall's judicial review had violated what had been intended by the Constitution, the founders would have raised holy hell. I've never read anything by any of them commenting on judicial review. Have you?

I seemed to recall having read of some rather interesting objections while I was in college, by none other than Jefferson himself.

"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches. "

—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."

—Thomas Jefferson to William Johnson, 1823. ME 15:451

"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best. "

—Thomas Jefferson to John Cartwright, 1824. ME 16:47

"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. "

—Thomas Jefferson to Abigail Adams, 1804. ME 11:51

"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277

"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. "

—Thomas Jefferson to Spencer Roane, 1819. ME 15:212

"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."

—Thomas Jefferson to Edward Livingston, 1825. ME 16:114

"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."

—Thomas Jefferson to Spencer Roane, 1819. ME 15:214

Who, then, would you say deserves the power to review laws? Congress? Congress already does things at the relative speed of a disabled, undermotivated snail.

Or would you simply do away with the concept of review altogether?

Jefferson already answered that question.

Article 3 of the Constitution describes the powers granted to the judiciary, and as Justice Marshall himself noted, the court lacked the original jurisdiction to even hear the case, which renders any ruling in the case moot.