Do the People really establish their government or ...

[Rurudyne]

Do We the People really establish our government or is the government 'self-establishing'?

Let me explain the basis for the question.

The 10th Amendment is an interesting article because of more than just the fact that it advances the idea of delegated powers. Certainly it reserves any powers not so delegated to the several States — excepting those few expressly forbidden to the States in the federal Constitution. Most of the time when people talk about the 10th Amendment this is as far as it goes where their presented logics are concerned and they essentially fail to address the full aspect of the article: that powers are reserved to the people too.

I have neglected this aspect of the article in the past; however, there comes a time when you get tired of presenting the same old 'States Rights' arguments ad infinitum. At such a time I finally looked to this often neglected aspect of the text and found something ... important.

Something that raises the question of how governments are established among men.

Consider for a moment what it means to say that powers are reserved to the people in a document that delegates powers to a Government.

Clearly, in light of Article 5, these powers would be those that the people have not yet incorporated — or delegated — to the federal government. The idea of unincorporated powers strikes at the very heart of the origin of governing authority in the United States.

Simply, an unincorporated power is that which the people have not lawfully delegated to a government according to proper procedures as set forth in Law.

This is why the 10th Amendment, though generally the logical grammar for the whole of the Constitution to which it was amended, would have likely appeared in Article 5 had it been there at the beginning (i.e. it speaks to the source of any powers that future amendments may delegate to the federal).

Yet the 10th and its reservation of powers to the people also has relevance to the several States for it also speaks to the Framer's expectations concerning how the States too came by their powers. So the formula should be seen as a general principal in American governance: that the people retain all powers they do not lawfully delegate to some government.

Also, that the act of delegating a power to one government, say the federal for national defense or else to a State for local law enforcement, says nothing about if such grants of power are general to all applicable governments — under the 10th Amendment they expressly are not. Powers not delegated to the federal are retained by others besides it.

So when it is said that people establish their government it means exactly this: they delegate Powers to it through some set procedure that is deemed lawful and otherwise retain all unincorporated powers to themselves and the future.

Here I will turn to the words of Chief Justice John Marshall from Marbury v Madison for further clarification of this principal:
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.The clarification I sought was this: the anticipation that the establishment of a Government was in and of itself a permanent gesture that affects not merely the current generation but also all future generations.

Also, as an aside, I'm somewhat convinced that this view of the permanence of governments lay behind some of the hostility between Jefferson and Marshall over the matter. Jefferson clearly expected that frequent turmoils would reshape the government as it had done (rather than wait on amendments) while Marshall was explicit in holding the federal's feet to the fire when it came to respecting the authority that established it ... and incidentally helping to avoid the tyrannies that would enjoin future domestic unrest so long as it did. You could hardy have two more different views on the matter than these.

This is why it is important that we have an amendment process for it is by this means that we may further delegate powers to the federal (or even potentially remove them, returning them to the body of unincorporated powers retained by the people). In essence, those who amend the Constitution themselves become Framers of same with respect to what they have authored, debated and accepted. In turn their adjustments are "designed to be permanent" too.

So we arrive at the Framer's sense of how our government was established: that the people have delegated Power to a Government for the benefit of themselves and their posterity and they have retained all powers not so delegated to themselves — unincorporated.

This is the proper sense that We the People have established our Government with a view of those ends as set forth in the Preamble to the Constitution.

Now comes the rub, and please bear with me as I again turn to Marbury:
To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.Consider the highlighted text in light of this essay.

What is happening when the legislature enacts some law for which it has no delegated authority?

It is assuming to incorporate a power that remains, as per the 10th Amendment reserved to the people.

Can the Congress lawfully do this anyway? Is it not an elected body representing the people?

If a legislature, or an administrator or a jurist for that matter, can claim by right of representation ability to further delegate powers on account of statutes but not according to the proscribed method (i.e. an amendment process) then the people have not even had the opportunity to vote on the matter.

Remember, a representative is there to represent the people and not to assume powers expressly left in their hands. When there is an amendment process, when there are the great debates across the nation on what kind of a Republic we will be, THEN the people have their vote on fundamental Law. They do not vote for alteration of fundamental Law when they merely vote for a representative tasked with carrying out delegated powers actually possessed by the federal at the time.

Or even possessed by a State when dealing with electing a State representative.

So when a government takes upon itself to alter its powers it is in fact a self-establishing entity.

Thus we see the truth behind what Chief Justice Marshall wrote: "if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable."

The illimitable power is precisely the power of any government that is self-establishing and which has no need of some extraordinary procedure such as an amendment process.

Under such a government it is impossible that any powers at all are ever reserved to the people, they do not establish their governments, for whatever powers may seem to be theirs are merely those that their government has yet to assume on their behalf.

So you may see by now why I'm starting to believe that this often neglected aspect of the 10th Amendment may be, in fact, the most important aspect of all.

Even if, as it may hopefully someday happen, true and lawful federalism is again restored to this land, this very principal should also be applied for how We the People have also established these State governments too — so that we will not merely trade one master, one great tyrant, for many.

Thoughts or comments?

[PhantomPholly]

Too long. Have to make it in little sound-bytes for the masses to absorb...

:)

[Wilhelm Scream]

Admittedly, this is some pretty hefty material.
I would have to agree that Congress is the elected representative entity of the people, and as such it is granted the unique position of being able to wield the people's unincorporated power and may delegate those powers as it deems necessary - so long as it is in the best interest of the people that Congress represents.
I'm not so sure that I would call that self-establishing, as the members of Congress are elected officials and are supposed to represent the people. I guess intent plays a large role in whether or not the government is extending its grasp into the people's reserved freedoms.
Again, this is some pretty heavy stuff and I may be way off. It reminds me of the few political science classes I took in college.

[Rurudyne]

WS ... because this is the first time I've encountered you, welcome to the forum btw, I'm unable to decide if you're serious or going for deep sarcasm.

At any rate, a point of the people delegating a power to a government is that they DO NOT do this through a representative. The amendment process is much closer to a referendum than writing statute. Representatives have the task of applying delegated powers, not delegating themselves new powers.

[Rurudyne]

Too long. Have to make it in little sound-bytes for the masses to absorb...

:)
Well, at least this one has potential to be put into sound bites. The idea that people retain powers that they have not entrusted to a government and that they establish their government rather than their governments establishing themselves (by assuming new powers from out of the blue) could easily gain traction.

However, I don't do "blurbs" well.

Which you probably already knew. :)

[Wilhelm Scream]

WS ... because this is the first time I've encountered you, welcome to the forum btw, I'm unable to decide if you're serious or going for deep sarcasm.

At any rate, a point of the people delegating a power to a government is that they DO NOT do this through a representative. The amendment process is much closer to a referendum than writing statute. Representatives have the task of applying delegated powers, not delegating themselves new powers.

Hi there. I wasn't being sarcastic. I was just trying to make heads and tails out of the material. I guess I just ended up showing off my incredible lack of expertise in the matter!

[Rurudyne]

Hi there. I wasn't being sarcastic. I was just trying to make heads and tails out of the material. I guess I just ended up showing off my incredible lack of expertise in the matter!
No, not at all. Actually you seemed to have picked up on the gist but had gotten just one thing turned around. That's why I was confused about your answer.

If there's anyone to blame it's the guy trying to communicate his ideas. As I said, this is an early effort on my part to relate this aspect of the 10th Amendment and how it reserves powers to the people so there's no way I would presume to have written THE essay on the matter (I don't think I'm in that rarified group that can write "THE essay" essays anyway).

That's why I love forums like this: every interaction, every criticism or comment received, is an opportunity to learn and/or to improve.

I sometimes put it this way: I used to be able to say in twice as much what I strongly suspect could be said by some folks in half as much yet again.

[PhantomPholly]

Well, at least this one has potential to be put into sound bites. The idea that people retain powers that they have not entrusted to a government and that they establish their government rather than their governments establishing themselves (by assuming new powers from out of the blue) could easily gain traction.

However, I don't do "blurbs" well.

Which you probably already knew. :)

I knew that. I was also too tired when I wrote that to write a serious answer...

;)

[Rurudyne]

I knew that. I was also too tired when I wrote that to write a serious answer...

;)
Now ... if "blurbs" were 10K character post? Sure, I could do blurbs.

Here's something else to consider, a sort of related topic to answer the question of if there is ever a pressing need, or an emergency which justifies lawlessness. It focuses on actual events in history where the tyrannies being authored by State governments were just about as bad as you can get under our Constitution.

The original question I was asked was: "Which begs the question: Do the people and/or the States have a retained right and/or reserved power to require the Federal Government to do something not otherwise specifically delegated to it but also not otherwise specifically forbidden to it?"

My answer was...

By means of ordinary statute: no.

But the route of amendment is available and it is by that route that the balance of federal Powers are addressed (both to grant new abilities or even take away old ones).

To clearly highlight this fact I will turn to the writings of Justice Field in his dissent in Slaughterhouse.

Of course, you will properly say: "Wait, you're pointing to a dissent rather than the majority opinion!" but please bear with me.

I turn to Field's dissent because in it he was FORCED to make what can only be a statement against interest and that is what I'm highlighting.

By this I mean that even though he wanted to find for the butchers of New Orleans, and even though he was in fact laboring to misconstruct the 14th Amendment as well as confound the fundamental difference in Laws between "Privileges and Immunities" (as per A4:S2:C1) and "privileges or immunities" (as per the 14th Amendment) as to how these are founded: he had to make THIS admission:
"That act, it is true, was passed before the fourteenth amendment, but the amendment was adopted, as I have already said, to obviate objections to the act, or, speaking more accurately, I should say, to obviate objections to legislation of a similar character, extending the protection of the National government over the common rights of all citizens of the United States. Accordingly, after its ratification, Congress reenacted the act under the belief that whatever doubts may have previously existed of its validity, they were removed by the amendment."
This is actually the clearest statement made of the intent and function of the language in the "privileges or immunities" clause of the 14th Amendment.

This clause exist to grant to Congress delegated Power to respect in statutory law civil rights that the several States could not disparage and this is what the majority upheld in Justice Miller's opinion for the majority.

The reason this was a statement against interest is found in the preceding text where Justice Field writes:
The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation. If this inhibition has no reference to privileges and immunities of this character, but only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage. With privileges and immunities thus designated or implied no State could ever have interfered by its laws, and no new constitutional provision was required to inhibit such interference. The supremacy of the Constitution and the laws of the United States always controlled any State legislation of that character. But if the amendment refers to the natural and inalienable rights which belong to all citizens, the inhibition has a profound significance and consequence.

What, then, are the privileges and immunities which are secured against abridgment by State legislation?

In the first section of the Civil Rights Act, Congress has given its interpretation to these terms, or at least has stated some of the rights which, in its judgment, these terms include; it has there declared that they include the right
"to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property."
This is where Field was intentionally confusing the distinction between "Privileges and Immunities" and "privileges or immunities". As I said, it's all a matter in how these are founded.

The former, "Privileges and Immunities", are sourced in our rightful common laws and are the very same unalienable rights mentioned by Justice Washington in Corfield v Coryell which both the majority opinion and dissents mention explicitly in Slaughterhouse. Under the federal Constitution the several States are responsible to respect these "P&I" under A4:S2:C1 while the federal are responsible to respect them under the 9th Amendment (for there is indeed no other body of rights — common law or statutory — retained by the people at the time the amendment was authored).

The latter, "privileges or immunities", are only sourced in statutory laws passed by a legislature — in this case Congress. As such they can be extended or even later revoked.

It is important to realize exactly what was happening in the process that led up to the language of the 14th including a delegation of Power to Congress just as Justice Field wrote.
Several of the several States were laboring to make the lot of freedmen as much a Hell on Earth as they could get away with.

In the process of doing so they were factually disparaging A4:S2:C1 "Privileges and Immunities" that they had no right or lawful power to disparage — being forbidden to by the Constitution.

The only legal recourse at the time was to be found in the courts. That meant that freedmen would have to wait on the whims of Case law and jurisprudence to see justice done.

Meanwhile, the Congress was unwilling to wait on the courts and so they passed the very first federal Civil Rights Act which did not enumerate any new rights but merely reiterated common law "P&I" that free men should possess anyway — every right which Field highlighted in the above quote is also a "P&I".

The problem was that this was not a remedy legally available to Congress. So rather than wait for the courts they acted to properly delegate a Power to give them the very power to make their civil rights act legal.

It was, if you will, ANOTHER enforcement method to hold the State's feet to the fire to respect the fundamental and unalienable "P&I" they should have been respecting all along.

This is why we find Justice Field echoing the words of those who debated the clause and the 14th Amendment. The CRA 1866 literally DOES NOT respect any new "Privileges and Immunities" but it does create a separate and similar set of "privileges or immunities" established in statutory laws and not under common law.
This is how Justice Field set about to confuse the distinction between "Privileges and Immunities" and "privileges or immunities". In the process he clearly STATES that if all the amendment accomplished was just what its authors meant it to accomplish (and remember that he is forced to admit that this was the actual intent) then it: "was a vain and idle enactment, which accomplished nothing and most unnecessarily excited Congress and the people on its passage."

I'll not be so cynical to opine here that the whole reason that Justice Field took this course of action was because this was a new Power for the Congress that offered nothing similar to the Court (as indeed Field's dissent would do): that sort of charge of misbehavior I'll leave to lay at latter day courts whose willful lawlessness is often astonishing.

Rather, I'll simply lay at Field's feet the charge that he had ceased to be a jurist but had instead unethically become an advocate for the butchers of New Orleans. It is obvious that the lawyers representing these butchers had misconstrued the 14th Amendment when they essentially demanded that it guaranteed what we would in these days call a "right to work". No such statutory "poi" was enumerated by Congress at the time (nor has one been so enumerated at this time).

There is, without a doubt, a reasonable claim for the right of Free Labor (our "right to work") under our rightful common laws. Given that both the majority opinion and dissents made reference to our A4:S2:C1 "P&I" there can be little doubt that had the butchers' lawyers simply argued on the basis of A4:S2:C1 they would have won their case — possibly in a unanimous decision.

But the buthers' lawyers were inept twits so Justice Field, rather than base his judgment on the arguments actually offered, attempted to argue their case for them. If in the process he had to misconstruct the article he was sworn to uphold it would seem to have not been such a big deal (to him).

I would also point out that the modern courts essentially take their cue from Justice Field. Acting as if privileges or immunities established by judicial fiat are in fact somehow the unalienable rights of the people even though there may be nothing resembling such 'poi' under our rightful common laws (as is the case, for example, with abortion). Conversely, they will also occasionally disparage a genuine "P&I" in favor of one of their inventions of judicial fiat.





Continued next post ...

[Rurudyne]

Continued from above ...






I hope I've been able to adequately describe the situation surrounding the 14th Amendment's "privileges or immunities" clause and also provide adequate cause to trust my interpretation.

What this means for your question (this whole thing was originally just an answer to the question in the first post) I hope should be plain too (I really DO try to work on matters of presentation so I'm not indecipherable, but as you wisely pointed out sometimes I'm in need of clarification); however, just to be complete....

Among any powers not delegated to Congress could there have been a more needful ability at the time in question than requiring the several States to respect unalienable rights that they should have honored anyway?

(Which would be the unalienable rights of freedmen that they were trampling)
If such a clear and pressing need is not sufficient to justify the Congress exercising a power not delegated then what is?

This tyranny of the States was not some mere emergency derived from external powers threatening our nation but it was like a 5th column within the nation striking a blow at our fundamental Laws and at our unalienable rights. So if this situation is not worthy of 'a little lawlessness by comparison' (Congress enacting the CRA 1866) then nothing is or truly ever will be.

Or such are my thoughts on the matter.






Of course, with that 'essay' too I had failed to be as clear as I had hoped. The format I'd chosen — to demonstrate the answer "no" by discussing a kind of worst case scenario whose interpretation I could demonstrate to be trustworthy — was missed. Some folks thought that the answer was unrelated to the question. Like I said, this stuff is always a learning process.

I added some comments and corrected a few typos and it could probably still be clearer.

[PhantomPholly]

To put it in terms the Sheriff in Eureka could understand, I think you are saying:

Prior to the 14th Amendment the Congress had no direct recourse to stop the States from enacting legislation in violation of our Rights. They could only sit back and wait for the Courts to address the situation which, given that those aggrieved were most likely poor and thus could generally not afford drawn-out court cases, meant that the people were S.O.L.
The justice you mentioned did not like that the Congress had in fact given itself a new power (through the Constitutionally approved process), so rendered an opinion which was little more than spin that "it was meaningless."
Additionally, although that particular justice was both wrong and in the minority on that decision, our modern-day justices are attempting to build on that opinion to usurp power they do not have in order to undermine the powers of the Constitution; Congress; and The People.


Does that sum it up?

[Rurudyne]

Yeppers!

Though use of large fonts is Elder-friendly. :)

[PhantomPholly]

It actually saddens me to have understood that - because now I know the Congress gave itself an additional power to fix violations of the Constitution but has steadfastly refused to use it, while simultaneously allowing the Courts to usurp the power or Congress and violate the Constitution through judicial decree.

Hit Ctrl|+ to increase the default font size on screen. I've had to start doing that a bit myself...

:)

[Rurudyne]

Indeed. The power delegated in the 14th has not generally been used because it gives the federal absolutely no power over the people or privately owned entities: it only affects State actors. So it essentially remains neglected and unused at this time.

They much prefer to misconstruct the commerce clause — not just for this cause alone but in order to generally lord it over We the People in all ways imaginable.

[PhantomPholly]

Well, the whole situation is distressing. A lot of people are getting angrier every day, and from a historical perspective almost all of the possible outcomes are bad. The most likely outcomes (historically) are:

1. Totalitarian government. We are seeing many of the signs of this now, with Dems calling for things like "The Fairness Doctrine" and the White House displaying unprecedented (in this country) behavior common to evolving dictatorships, including a web site asking for people to snitch on their neighbors if they note the making "fishy" statements, and announcing a list of "groups spreading inaccurate information about the health bill." This latter is most disturbing, because it is often the first step towards "arrest for subversive behavior" (classifying political opposition as "criminals").
2. Military Junta. In the event that the political group gets so out of hand that it is causing general rioting in the country, sometimes the military steps in and removes the government "in order to protect the Constitution." Not a good situation, and sometimes it becomes permanent. There is a small possibility that they conduct trials and then (after convicting a group of scapegoats) they re-implement elections. Usually, though, the only "candidates" are military.
3. Voter revolt. In the next election the incumbent party loses their hard majority, and nothing changes but things don't get worse - resolution is simply delayed and he country continues to suffer under a struggling economy.
4. Open revolt. Really bad. I'm too old...

Our current situation cannot remain static - it is impossible simply because we are rolling down the hill towards impossible debt. Maybe it is good news that the current regime is accelerating this trend - it is possible that once we live through a REAL depression this generation will finally "get it" and turn their backs on unsustainable promises and corruption.

In the mean time, ordinary folks like me are seeing their dream of retiring some day stolen piece by piece...

[optrader]

Well, the whole situation is distressing. A lot of people are getting angrier every day, and from a historical perspective almost all of the possible outcomes are bad. The most likely outcomes (historically) are:

1. Totalitarian government. We are seeing many of the signs of this now, with Dems calling for things like "The Fairness Doctrine" and the White House displaying unprecedented (in this country) behavior common to evolving dictatorships, including a web site asking for people to snitch on their neighbors if they note the making "fishy" statements, and announcing a list of "groups spreading inaccurate information about the health bill." This latter is most disturbing, because it is often the first step towards "arrest for subversive behavior" (classifying political opposition as "criminals").
2. Military Junta. In the event that the political group gets so out of hand that it is causing general rioting in the country, sometimes the military steps in and removes the government "in order to protect the Constitution." Not a good situation, and sometimes it becomes permanent. There is a small possibility that they conduct trials and then (after convicting a group of scapegoats) they re-implement elections. Usually, though, the only "candidates" are military.
3. Voter revolt. In the next election the incumbent party loses their hard majority, and nothing changes but things don't get worse - resolution is simply delayed and he country continues to suffer under a struggling economy.
4. Open revolt. Really bad. I'm too old...

Our current situation cannot remain static - it is impossible simply because we are rolling down the hill towards impossible debt. Maybe it is good news that the current regime is accelerating this trend - it is possible that once we live through a REAL depression this generation will finally "get it" and turn their backs on unsustainable promises and corruption.

In the mean time, ordinary folks like me are seeing their dream of retiring some day stolen piece by piece...

+1. I believe, however, that this generation will indeed NOT "get it" because they perceive themselves as surviving whatever consequences their actions bring and still being in a position of power. There were many welthy, powerful people who were not affected in the least by the depression. One of the four choices you listed is much more likely.

By "fishy" statements, do you mean like I support Sean Hannity? :eek:

I love big brother....

[Rurudyne]

Necroposter strikes again!

Anyhoo, I've been reading a lot of threads since this was first posted, reposting the basic thesis here too, and it seems remarkable to me that this very simple idea that people establish their own government and how that relates to the fact that we too have powers reserved to us which may only be relinquished by means of a specific legal process — essentially the very idea upon which our nation was founded no less — hasn't received the response I'd imagined (usual culprits aside).

Have we, as a nation, truly moved on from the quaint notion that governments are endowed by THEIR creators with only the powers and attributes delegated to them?

Is Arbitrary government and absolute rule now so widely accepted by the powers that be that it seems so much ****ing into the wind to seek restoration?

[PhantomPholly]

Necroposter strikes again!

Anyhoo, I've been reading a lot of threads since this was first posted, reposting the basic thesis here too, and it seems remarkable to me that this very simple idea that people establish their own government and how that relates to the fact that we too have powers reserved to us which may only be relinquished by means of a specific legal process — essentially the very idea upon which our nation was founded no less — hasn't received the response I'd imagined (usual culprits aside).

Have we, as a nation, truly moved on from the quaint notion that governments are endowed by THEIR creators with only the powers and attributes delegated to them?

Is Arbitrary government and absolute rule now so widely accepted by the powers that be that it seems so much ****ing into the wind to seek restoration?

Those who seek power are not generally the sort to abide by any rule they feel they can get away from breaking.

The Founding Fathers truly did NOT wish power, and sought to PREVENT future usurpers from TAKING power. In this they failed, for they did not provide balancing powers with strong incentive to reverse such power grabs and forever jail those who seek through obfuscation to steal our rights by stealth and incremental attacks.

Congressman John Linder spoke at a FairTax gathering over the weekend, and when asked what could be done about people like Charlie Rangle essentially replied that he was one of the more reasonable of his bunch. Doesn't give us much hope for our "representative government."

[Rurudyne]

bump

[GuitarCrazyo]

sadly i never took most of the technical skills classes scott teaches. i was 7th term by the time he began teaching again. the perspective stuff is great to know and to have a real process. i really admire people that can contruct their hard surfaces the way he teaches.

[Zanger]

Prior to the 14th Amendment the Congress had no direct recourse to stop the States from enacting legislation in violation of our Rights. They could only sit back and wait for the Courts to address the situation which, given that those aggrieved were most likely poor and thus could generally not afford drawn-out court cases, meant that the people were S.O.L.
A good idea, no?

The justice you mentioned did not like that the Congress had in fact given itself a new power (through the Constitutionally approved process), so rendered an opinion which was little more than spin that "it was meaningless."

Additionally, although that particular justice was both wrong and in the minority on that decision, our modern-day justices are attempting to build on that opinion to usurp power they do not have in order to undermine the powers of the Constitution; Congress; and The People.
The opinion that Madison v Marbury oversteps the powers of the court is suspect to attack on a number of fronts.

First, it was common law tradition at the time in America when the Constitution was written that a state's (colony's, really, because such things happened prior to the Revolution) highest court to strike laws passed by the legislation down. In states, separately, it was readily recognized on the basis of this common law tradition that a state court could invalidate legislation passed by the state's legislature. The founding fathers, many of whom were lawyers, must have contemplated this tradition when they undertook to write the Constitution, and in failing to specifically deny the Supreme Court this power, would have, at the least, tacitly approved it.

Second, prior to Madison, what recourse would the people have in response to unconstitutional legislation enacted by Congress? If courts could not strike down such laws, the people would really be screwed (and have to wait for re-election of representatives, wait for the representatives to re-consider the statute, then vote on it again, etc) They'd REALLY be SoL on the basis of time spent waiting for the law to remedy itself. Therefore, Madison provides a reasonable alternative recourse of action for the people to protect their Constitutionally protected rights.

Third, when presented with a statute that is possibly unconstitutional, courts will often defer to interpret it in a way that does not violate any constitutional rights (operating on the assumption that a legislature cannot presume to pass a law that violates any aspect of the constitution). If it is impossible for a court to interpret a statute in a way that is not unconstitutional, how would you propose the court deal with it?

[Rurudyne]

Zanger, I've not presented the notion that Marbury overstepped the powers of the Courts but that the decision has been misrepresented by the legal profession to be something other than what it actually is.

The properness of Judicial Review itself was not even a consideration before the Court as that had been previously addressed on the basis of Cases arising out of an act involving revolutionary war pensions — much as Marshall himself notes in the opinion.

Instead, the Petition actually hinged on the proper methodology FOR judicial review — a methodology that invalidates modern jurisprudence.

Rightly construed, Marbury recognized the power of the Court but that power came at the expense of its liberty to do as it please.

The modern courts act, instead, as if they had such liberty when Marshall would allow none of it.

[Zanger]

Zanger, I've not presented the notion that Marbury overstepped the powers of the Courts but that the decision has been misrepresented by the legal profession to be something other than what it actually is.

The properness of Judicial Review itself was not even a consideration before the Court as that had been previously addressed on the basis of Cases arising out of an act involving revolutionary war pensions — much as Marshall himself notes in the opinion.
This isn't exactly true. When a judge issues a decision and makes commentary about how he might do things were the facts different from that of the current case, lawyers have been quick to scramble over each other in attaching persuasive (but not binding) authority to those statements. For a judge to talk tangentially about something not all that relevant to the issue at hand is an admission by the judge that the question is important because it might come up in the future, and if it does come up in the future, the judge gives his opinion on how it would to be treated; analogously he would be sketching the lines before the picture is painted (whether he is the one to paint it or someone else finishes the job).

Instead, the Petition actually hinged on the proper methodology FOR judicial review — a methodology that invalidates modern jurisprudence.
I'm not sure I understand what you mean by this. How does it invalidate modern jurisprudence?

Rightly construed, Marbury recognized the power of the Court but that power came at the expense of its liberty to do as it please.
If the decision recognized the power of the court do something which it hadn't been explicitly given, how does that limit its power?

The modern courts act, instead, as if they had such liberty when Marshall would allow none of it.
This statement is overtly generalizing and also isn't true.

[Rurudyne]

I'm not sure I understand what you mean by this. How does it invalidate modern jurisprudence?
What determined the decision was not IF judicial review was proper but what sort of methodology for judicial review was proper. The infamous quote:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.... does not even answer the actual question before the Court. That problem being:
This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it from the record, and it only remains to be inquired:

Whether it can issue from this Court. You must remember that the fundamental question before the Court in Marbury is precisely a matter of the Court's jurisdiction AND IF it could be altered by ordinary means.

Inescapable in this is the parallel problem of if the Court itself has any lawful power to even agree that its Jurisdiction, as enumerated by Article 3:Section 2, may so be altered. That means both by itself as it does by the Congress (or even a President).

This is a 10th Amendment issue: for that Article is inclusive of ALL of the federal, all its aspects, and not just the Congress.

So when Chief Justice Marshall wrote:
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.... it should be seen that there neither is nor should ever be a question more dear and important to any jurist than the matter of proper jurisdiction — the very matter which Marbury strikes at the heart of.

While the principal seen unfolding is indeed true of both the Congress and any Administration it is here specifically focused on the Court itself.

This is it: the delegation of Power (in this Case Jurisdiction) demonstrates not only that such is the delegated Power but also that any other power no so delegated is NOT POSSESSED. Otherwise the act of delegating specific authority becomes a mere surplusage of words — "entirely without meaning".

This is the very principal and proper operation of the 10th Amendment expounded upon and APPLIED to the Court itself.

Thus speaking generally of Congress, Marshall wrote:
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.... what can also be applied to the Court as well. Just as he says:
From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

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.Please make note: you will NOT find in Article 3:Section 2 any mention that the Court, or federal courts in general, shall have jurisdiction arising on account of the Opinions of the Court. So when you ask:



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[Rurudyne]

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If the decision recognized the power of the court do something which it hadn't been explicitly given, how does that limit its power?
... you have missed this point entirely.

The Court cannot alter its own delegated Jurisdiction any more than the Congress can, nor can it lawfully agree to alter its own delegated Jurisdiction in CONCERT with the Congress (or even in unanimity with the Congress and a President).

All of these are ordinary means insufficient to the task — which indeed can only be accomplished by means of an Amendment to the Constitution.

Among these ordinary means are also Opinions of the Court itself. It has no lawful power to claim jurisdiction on account of some prior OPINION or OPINIONS but only on account of Article 3:Section 2.

There are no "emanations" or "penumbras" for opinions of the Court. These ARE not the Laws of the United States (which Laws are enacted by Congress in conjunction with a President) nor are they the Constitution.

The best that could be possibly said of them is that they are but margin notes. But margin notes are not an proper basis for Jurisdiction: jurist do not swear to uphold the opinions of other jurist any more than they swear to uphold all laws enacted by Congress.

As Marshall himself notes: "From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature."

If the courts are governed BY the Constitution then they cannot be governors over it. Their views are not equal to the matter at all so when Marshall writes:
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.

In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?His words, equally applicable to the courts (or else they are not governed by the Constitution), prejudice against all claims of jurisdiction arising EXCEPT for the delegated jurisdiction of Article 3:Section 2.

Again, opinions of the courts are not a valid basis to alter the jurisdiction of the courts in any way. If a Case or a Petition DOES NOT fall under the federal bench's delegated Jurisdiction then the federal has no authority AT ALL in any such matters and supreme authority remains still with the States.

It is not, after all, the "Supreme Court Over the Several States" but only the Supreme Court of the United States.

This is but one blow against modern so-called "jurisprudence". But it is the methodolgy enjoined by Marbury that delivers the coup de grace.

This is wrapped around two artifacts that Marshall, and Courts well after his time too, indicate as being of prime interest: the "original right" of the Framers and the theory of written constitutions by which they labored.

I've already addressed that theory in terms of the logical grammar of the whole Constitution, how it is constructed, with what I've said about the 10th Amendment.

But more to the point, there is the inescapable matter associated with the necessary and proper clause that Marshall takes note of: "It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank."

Just as a law made in defiance of the Constitution is not law so too are mere opinions which are not made in pursuance of the Constitution even remotely valid.

The Court DOES NOT have lawful power to alter on account of their "interpretation" the practical application of the Constitution.

To agree that they do is to allow them to steal the power of amendment from Article 5.

There is no "amendment lite" role for the Court.

Thus rulings:Which ignored the FACT that there is no delegated power for the federal to emit funds under Social Security (issued by the Court without explanation, such was their lawlessness);

Or giving any preference to statements made about a "general Welfare clause" by Hamilton as Secretary of State WHICH WERE AND ARE contrary to statements he made to the several States who ALONE had authority to adopt the Constitution (as if Hamilton had somehow retained the power of pen long after he and the rest had surrendered their work to Authorities);

Or which completely altered the function and operation of the Commerce Clause;

As well as others including the Court acting outside of lawful Jurisdiction in such Cases as Roe is ...ALL of these are NOT made in pursuance of the Constitution.

Either they are a mere surplusage of words without meaning or lawful operation OR else the Constitution is itself immaterial to the proper function of government.

Here we finally COME to the matter of "original right", Marshall's term and not mine:
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.... ideas like a "living constitution" or the continuance of federal judge made law are absurdities, for these rely on the subjugation of the original right to the whims of current legal theory ... neither of which is a valid claim for jurisdiction by the courts; likewise neither of which is valid for either legislative authority for the Congress or executive authority for any President.



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[Rurudyne]

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Further, modern so-called jurisprudence — in addition to not being made in pursuance of the Constitution but rather of the margin notes ... or, better, margin scrawls and likewise being defiant of the original right of the Framers and those who adopted the Constitution — finally (at least as far as these posts are concerned) falls afoul of the idea that the Constitution governs the courts "as well as of the Legislature" — which can only be of the same manner.

Thus what Marshall wrote has general application to the Court and federal courts as well and may be fairly rendered thus:Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only such matters as the law, or orders of an Executive, or opinions of a court.While I have expounded on the matter in my own fashion please feel free to examine the entire text (link (http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZO.html)) of the opinion in order and I challenge you that you will see that the infamous quote ("It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.") was not more than a brief concession to an issue since settled by Ex Parte Chandler and other Cases associated with the pension act for invalids (Marshall expressly note THIS in the earlier section of his opinion). It was certainly not an answer as to WHY William Marbury's petition could not be issued by the Court.

It is the answer to THAT problem which rest on proper methodology.

And it is a methodology that invalidates so much of the speculations of the modern court.

They have not been building a tower of jurisprudence but have only be slapping together a ramshackle bridge of supposition and presumption dangled out over the abyss of Arbitrary government and absolute rule.