One of the most significant assaults on the Institution of Justice over the last century has come from and against the highest Institution of that supposed Justice, which is none other than the US Supreme Court. This assault was insidious, draped in the veil of honor and vigil within a marble encapsulation; The removal of those Justices from the halls of Congress and into a marble façade far enough removed and reframed as to be without, instead of within.
To divest those Justices from the process of administration and observation towards the goals of reactionary proceedings, which may only proceed when Standing was granted to plaintiffs on the whims or alms of Justice, has become our highest Institution of Law. To force the Highest apolitical Court into the Political Theater was not by accident but always by architectural marbleized design.
As the old saying goes, the 10 Commandments aren’t posted in Court Houses across the nation because telling Lawyers not to Lie, not to Cheat, and not to Steal would invoke a toxic work environment. So were the Justices of the Highest Court removed from the Halls of Congress to both figuratively and causally remove their influence from the Legislative Process to further the aims of subversion, even if only temporarily, as the underlying legal theories gained their prominence to subvert all remaining pillars of Supreme Lawful Authority.
Table of Contents
Disclaimer
Brief History
Constitutional Article
The Federalist Papers
Marbury v. Madison (1803)
Chain of Logic
Conclusion
Disclaimer
Before we begin, I want to make a quick note about this particular article.
While I have struggled to ensure the information presented here is, to the best of my ability and time constraints, most accurate - I make no guarantees of it. As I look back upon this article, and as you gaze upon it now, I’m sure there will be some minor inconsistencies and oversights. Though a lot of information and added context had to be removed or avoided, given the shear depth of the topic and the already extensive length of this article, I’m hopeful that I’ve provided you, dearest reader, with enough to maintain the context and assist not only in contextualizing my final points and conclusion but also with the mind that this Document will become another foundational article for reference later as I continue to build related articles upon it over time.
I’d also like to relay to you a pointed perspective of mine, where, at times, even though I am highly critical, if not borderline disrespectful, at some of humanities most valued and historical institutions and persons relating to this and other topics - this is purely out of heated passions and intellectual vigor. I greatly admire The Founding Fathers, many of the American Institutions and Customs, and most especially, that glorious United States Constitution for which it stands.
Regardless of who or where or what you are and believe:
The United States Constitution is one of the most significant political documents that mankind has ever produced across our entire collective history. A state of affairs that was doomed from the start met with every kind of opposition one could imagine, and even up to this day, its foundational words and meaning are still challenged and stretched beyond conceivable limits. Throughout its drafting, ratification, and deployment, there were moments when the Constitution could or should have failed or portions of its texts destroyed or reduced in weight. Yet, as that dust settled, just like the Flag of the Union itself, that Document was still standing. A testament not just to the framework of the Constitution, but more so, to the very men and women of that New Union and all thereafter who gave everything so that you and I could have the privilege of living in a world better enriched by that Great Experiment, it’s valuable lessons, and it’s continuation.
Brief History
The Supreme Court of the United States was established through the passage of the United States Constitution and its ratification by those few States within the Union. Under this, Article III lays explicitly out the founding of a Federal Court but was otherwise very scant on any details, which left this particular issue to Congress for drafting and construction. On June 21st, 1788, the 9th State (of 13) within the newly forming Union passed the Constitution as the Federal Founding Document (pending future Amendments commonly referred to as the Bill of Rights, Amendments 1-10).
During the interim and the proposal and passage of the first few amendments, the issue of a Federal Court became primary. On September 24th, the Federal Judiciary Act of 1789 was passed and signed by then-President George Washington.
And be it further enacted, That the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices, shall take the following oath or affirmation, to wit: "I do solemnly swear or affirm, 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 and perform 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. So help me God."
What followed over the next 30 years was quite tumultuous for the Supreme Court, where, at one point, the court was almost reduced to a toothless and otherwise ceremonial state of existence. Congress embattled between the outgoing Federalist Party and the incoming Democratic-Republican Party fought each other legislatively through the passage and later repeal of the Judiciary Act of 1801 and passage of the Judiciary Act of 1802. The primary focus of these pieces of legislation related to the concept of ‘circuit riding’ by Supreme Justices, which saw these justices traversing across the land to attend court at the various Federal Circuits - which was a time-intensive and costly process and was later claimed to have caused the death of a Justice before its inevitable repeal as a practice. These predominant parties also disagreed on the established Federal Judiciary Act of 1789, with the Republican Party claiming this law itself (and the powers within) were unconstitutional, having favored a far more republican-based nation of laws in opposition to a strong national government to the alignment of the Federalists.
At this point, I find myself at an intellectual impasse. On the one hand, I fully support, and through this article, I will lay out the groundwork and argument for a stronger Federal Judiciary. Simultaneously, I also agree with those Jeffersonians and their arguments against judicial expansion. Wherein if I were alive during that period, I too would be writing articles lambasting the efforts by Federalist Party Chief Justice John Marshal (4th Chief Justice, 1801-1835) and his tempered expansion of Supreme Court powers and purview, most enshrined within the Marbury v. Madison (1803) and Stuart v. Laird (1803) decisions. Whereas, given the benefit of hindsight of over 200 years of history since, I almost unequivocally find myself in agreement with those decisions and their basis within some common law doctrine when viewing the unfolding of this now Federal Republic into its modern form. This impasse within, if we were to define it, might fall along the lines of Principles vs Reality - my principles agree with those opponents, but the reality of an expanding Central Government and, in part, some of the arguments of Federalists across two centuries has inevitably lead us to now and the issues we currently face.
Moving forward, the idea of Constitutional Supremacy and State’s Rights over Legislative Doctrine, as enshrined by Chief Justice John Marshal, was later morally tested in the most detestable manner. The disgraced Chief Justice Roger Taney (5th Chief Justice 1836-1864), whose majority opinion in the Dred Scott v. Sanford (1857) trial saw him, who was personally opposed to the institution of Slavery, defending the American Territories on the issue. Congress refused to act to end Slavery, and therefore, the public hoped the Supreme Court would finally interject. The Supreme Court did not have the authority in 1857, rightly so, under the Constitution to invalidate State Rights regarding Slavery. That power wasn’t granted until the 13th Amendment, Ratified in 1865, and the 14th Amendment, Ratified in 1868, four years after Justice Taney’s death.
Of note, Taney’s decision was the single most disgusting and racist Supreme Court decision ever penned in American History, which, though Taney penned it hoping to avoid an American Civil War, was one of the notable sparks leading to the American Civil War (1861-1865).
Also of note - Taney, after inheriting enslaved people from his father, had them freed and even paid pensions to the elderly among them directly out of his pocket when they were unable to work thereafter. Taney believed that the Institution of Slavery would naturally come to an end, given its repugnant nature, and that any attempts at Federal Intervention would naturally lead to war - which it did.
Though many at the time found Taney’s majority opinion to be detestable, and it was, his fundamental rejection was correct. The Supreme Court did not have the authority to supersede the Constitution, even on the highest moral grounds. The act of doing so would have untimely led to the succession of those Southern States before the Northern States were prepared to intercede, most especially with Congress so divided across party lines, with Democrats defending State Rights on the issue. President Lincoln’s later Emancipation Proclamation was shaky on Constitutional grounds. It required an Amendment and ratification to ensure the staying power of its intended goals* - later known as the Three Reconstruction Amendments.
*Emancipation Proclamation did not make slavery illegal, as is commonly believed, but more fittingly freed those unfree people within the Rebellion States and directed them into the ranks of the US Military for cessation of the declared rebellion. The Presidency does not have the authority to supersede State Rights on the issue, regardless of the moral depravity of it.
As a Federal Judge, Justice Taney would later go on to invalidate President Abraham Lincoln’s attempts at suspending Habeas Corpus against secessionists during the Civil War. Justice Taney wrote that the power of suspension, under Article I, Section 9 of the Constitution, was only plausible by an Act of Congress - a power later granted by Congress to the President through the passage of the Suspension of Habeas Corpus Act of 1863. The suspension was debatable under the circumstances with a now existing very heavy precedent set by that former President and Congress.
For reference, Habeas Corpus is the right to have one's detention determined as lawful. Thus, the prevention of unlawful imprisonment originates from the English Assize of Clarendon of 1166AD and, therefore, is one of the oldest and most fundamental human rights ever established in law.
The suspension must only ever be performed under the most grave of circumstances for the least amount of time possible, as the abuse of it is far too easy and without the possibility of legal redress while the suspension is enforced. Federal Courts have also used Habeas to intercede in State Court cases, which is another issue.
It was, without a doubt, the precedent set by fellow Justices that gave the Supreme Court its teeth, based on common law doctrine, and helped establish its equal footing with the co-equal branches of the Federal Government; Where the original framers had otherwise left to the wayside the legal framing of the court, those old Justices filled in the blanks to the best of their ability while attempting to avoid the pitfalls of Politics. A political Supreme Court is bad for everyone, as tenured Judges are not directly held to account to the American Public and the power of precedent expands far beyond any one case, as the Marbury and Dred Scott decisions highlight so effectively - truly the impact of the highest court upon diplomatic relations, public faith, and the legislative process adds only weight to the shoulders of those men and women, and by extension, upon the shoulders of all of us who look upon the court for redress, reassurance, and remuneration.
Constitutional Article
What is perhaps most critical here, when viewing the Court, is the Founders and their penning of the Court into the Constitution via Article III, as constructed within only two main sections, specifically:
“The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not
be diminished during their continuance in office.”
-US Constitution, Article III, Section 1
and
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”
“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”
-US Constitution, Article III, Section 2
A portion of Article III, Section 2 was later altered through the 11th Amendment ratified in 1795, which reads:
“The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
-11th Amendment
This particular amendment has sparked a lot of controversy among scholars and the Supreme Court since its inception, with the exact meaning of the text being interpreted and reinterpreted by that court to varying results. Some of these can be studied here, a slightly different issue from this article. However, it is essential to note that even the most straightforward Constitutional alterations can fail to be correctly interpreted and otherwise have long-reaching issues.
To see further regarding Legal Interpretations and dangers, check out the previous article
titled “The Evolution of Language and Law” within this publication.
At this point, it beseeches us to investigate further the intention and powers of this court beyond its otherwise vague construction. For this, we have two primary sources, the Federalist Papers and the Common Law Doctrine, as set forth by Chief Justice Marshal.
The Federalist Papers
The famous Federalist Papers are a collection of essays written by a few founders and published in New York to sway the voting public toward the ratification of the new American Constitution. For this article, I will focus on the essays relating to the Judicial Branch of the New Constitution.
As essay #78 begins with appointing judges, their tenure, and the reason for impeachment, we shall skip for brevity. The following quotes are excerpted from “The Federalist Papers,” compiled by Charles R. Kesler and published by Signet Classics in 1961. The full text is available online here.
Joining the essay where the separation of the three branches of Government (Presidential, Congressional, Judicial) are concerned, Hamilton writes:
“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, 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.”
-Essay 78, Paragraph 7
Where Hamilton is technically correct, over these centuries, we have seen various examples and political formations of Judicial Activism and reinterpretation of both laws and the Constitution itself, which is not beyond Hamilton’s awareness. In this account of the separation of powers, he continues:
“The executive (President & Cabinet) not only dispenses the honors but holds the sword of the community. The legislature (House of Representatives and Senate) not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary (Supreme Court and Circuits), on the contrary, has no influence over either the sword or the wealth of the society, and can take no active resolution whatever.”
-Essay 78, Paragraph 7
I would argue that Hamilton’s failure of foresight begins here, as it relates to the continuity of America and its grounding within Constitutional Provisions and Principles when contrasted against the apolitical declarations of the highest Court and its most apparent political members, practitioners, and teachers.
“It may truly be said to have neither the FORCE nor WILL but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.”
-Essay 78, Paragraph 7
While the court, through the power of judgment, is theoretically incapable of passing legislation or commanding armies, it is and has proven itself quite capable and willing to weaponize the power of judgment through selective interpretation, dependence on injury or standing, exotic legal theory and arguments, and the wild expansion of requirements of and duties towards Legislative and Executive Power under the guise of ‘reimagined purpose and meaning.’
The power of interpretation is the power of Will manipulated.
“This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the
weakest of the three departments of power;”
-Essay 78, Paragraph 7
That is a falsity by nature of its purpose and scope, and more greatly so when considering the impacts of language and the art of interpretation as it governs the other divisions of power.
“… that it can never attack with success either of the other two;”
-Essay 78, Paragraph 8
Not every attack needs to be one of directed means. The Court has within its power the ability to attack without attacking, if one merely waits for the right circumstances and pulls the rug from underneath those who depend most upon it.
“… and that all possible care is requisite to enable it to defend itself against their attacks.”
-Essay 78, Paragraph 8
Well, thank you, Mr. Hamilton, for this recognition. If only you were uniquely capable of drafting such a defense and framework for that court, under its requisite need, to better defend against the legislative and interpretative wolves whose ambitions can never be satisfied. Perhaps if you had spent more time carefully crafting the Judicial Framework and less time selling the notion of the idea you failed to draft to the public, we wouldn’t need to discuss such requisites centuries later.
“It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter;”
-Essay 78, Paragraph 8
Except, of course, in the cases where that quarter fails in its Constitutional guardianship, devises its scope, and then fails to deliver on its mandate during any period of crisis, or in the worst case, devises its interpretive language to subvert the nature and meaning long held for the purposes and reasoning of Legislative Intent and Political expediency.
“I mean so long as the judiciary remains truly distinct
from both the legislature and the executive.”
-Essay 78, Paragraph 8
Spoiler alert, everyone.
“For I agree that ‘there is no liberty if the power of judging be not separated from the legislature and executive powers.’ And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone…”
-Essay 78, Paragraph 8
Excuse me? Do you mean the very institution that holds the power to imprison anyone who so much as criticizes its authority or application of justice presents no threat to liberty itself? The institution that sets upon freemen the rules by which those men may speak, argue, present evidence, and have their defense be honorably recognized or swiftly discarded? The institution which sets about itself a complication of compendiums so vast and unmanageable as to require armies of dedicated professionals who set upon the singular purpose of interpreting the compendium and thereby translating evidentiary fact and circumstance into legally quantifiable understanding? The institution whose authors draft the legislation to be interpreted and read, and who simultaneously demands your knowledge of texts you can’t understand under threat of losing everything man holds most dear, being the self and their possessions and accumulations?
That institution, Mr. Hamilton?
“… but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, nothwithstanding a nominal and apparent separation;”
-Essay 78, Paragraph 8
Nominal indeed, when all legislation is framed, drafted, and passed by professional agents of that institution that claims the highest degree of apparent separation.
“… that as, from the natural feebleness of the judiciary…”
-Essay 78, Paragraph 8
I beg your pardon, sir!
“… it is in continual jeopardy of being overpowered, awed,
or influenced by its ordinate branches;”
-Essay 78, Paragraph 8
And equally the same threats, arguably infinitely more subversive and effective, applied to the coequals of government within the Legislative and Executive, a power that is not merely a threat of jeopardy but the living embodiment of its influence, which is outwardly pervasive upon all aspects of all manners of all departments and levels of government across the entire Republic and indeed all of the civilized world which employs these institutions and its agents. Was it not a White House Lawyer who empowered the Bush Administration towards the Legalization of Torture in the famous ‘Napkin Memo’ controversy circa 2002 and after?
When the language governing a free people, constructed towards their Regulation and based upon their Consent and the power of their Will, is no longer understood by those people, who can we say the language is set to be from and for?
With such a “feeble” institution and threat, what need is there for nuclear weapons?
“… and that as nothing can contribute so much to its firmness and
independence as permanency in office…”
-Essay 78, Paragraph 8
Not exactly, but I understand your rationale. As viewed through the lens of a tenured Professor, the idea is that through lifetime tenure, a certain freedom from the threat of termination or re-election can inspire the greatest academic freedoms to explore and espouse to the most significant benefit of society and its pupils among its subject(s). Yet, while this sword cuts the veil of interpersonal fear, it also invokes the confidence unbefitting of a professional whose duty towards pupil and subject can be distorted under the guise of too much freedom without the necessary accountability to maintain the highest standards of the principles of the office occupied. One needs to look no further than a Monarchy to see the impacts of this distortion upon individuals and their outsized results upon greater society, or the ideological Professor whose authority and position demands adherence under graded or gradual punishment when questioned or countered, or to the Justice who claims the ultimate power of judgment without consequence and the authority to frame and censor to achieve strict rationale of outcomes which might as well be predetermined.
“… this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the
public justice and the public security.”
-Essay 78, Paragraph 8
Theoretically, Mr. Hamilton. Yet, if you truly believe that statement, why not skip the middlemen of the judiciary and raise a King to the Supreme Court? How concerned can you truly be about the citadel of justice and security when you failed to construct the court outside of its existence? Were you so afraid that to map such a thing within the Constitution would cause a natural nauseation among the public towards the conceptualization you had ventured to deploy? So feeble is the ultimate power of Judgment you prescribe to those tenured mortal men that you felt the need to leave them the frame of their limits, the scope of their purpose, and language of their discussion and debate and engagement with that public which rests its justice and security upon their charitable alms.
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specific exceptions to the legislative authority;”
-Essay 78, Paragraph 9
Exceptions which must be observed by that legislative authority against itself. Exceptions that, through oath and honor, must be adhered to the determinant of the Will to which the Legislature claims the highest authority and Right to enact against the people and the Constitution those powers derive from!
“… such, for instance, as that it shall pass no bills of attainder (Legislation imposing punishment on individuals or groups without a trial),
no ex post facto laws (Retroactive Laws), and the like.”
-Essay 78, Paragraph 9
To whose ear may those individuals speak when their tongues are silenced behind walls and barbwire? Is terrorism laws, empowering Military Tribunal against American Citizens in times of War not a primary example of instances of attainder against those declared guilty but not found of any guilt or presented any evidence or supplied with any civilian redress? You know of terrorism and its implications, Mr. Hamilton, you were declared one by the King of England! How can you be so damn blind to the plight of such a straightforward declaration which lifts from the individual all protections under the law while placing upon his shoulders all the requirements and duties befitting a guilty man before guilt has ever been proven?
Whereas in the case of the retroactive, your failure to assume a Body Politic (Independent Government Agency) in its ability to pass such and effectively argue for that passage was and is upheld by the Supreme Court, most especially in the cases of Taxation and Financial Regulation, where that court grants the authorities within these sectors the most egregious of sympathies to the detriment of all claimants or defendants not bestowed with Government title or mandate.
I quote the syllabus of the below case in saying:
“That an ad hoc decision of the (SEC) Commission might have a retroactive effect does not necessarily render it invalid.”
(SEC v. Chenery Corp., 332 U.S. 194 (1947))
Is a Body Politic not the extension of the Will of Congress in its design to distance that Congress from the enforcement and regulation of a sector or commission it paid mind to regulate? If a Body Politic is anything else but the Will of Congress, how can it claim lawful order of itself and its activities?
“Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or priviledges would amount to nothing.”
-Essay 78, Paragraph 9
Except where that court is found in the act of Will of its Judgment towards the highest benefit of that Legislative Organ which declares itself the voice of the Constitution without Constitutional Authority. Your Article III construction within the Constitution has damned the nature of the document itself and its enshrined protections by the failure of your lack of construction to the whole amount of nothing.
“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.”
-Essay 78, Paragraph 10
A superiority that can only be expressed when the power of Judgment is displaced by the Legislative power of Will by those courts, whether in sympathies of its interpretation or its emboldened acts of passing Will upon Judgment for itself or the sake of Government.
“There is no position which depends on the clearer principles than that every act of a delegated authority, contrary to the tenor of the commission
under which it is exercised, is void.”
-Essay 78, Paragraph 11
Agreed! And yet, how do we make such a declaration or impose upon that court to declare the very nature of what you suggest if the court itself is to interpret the Will of both the Legislature and the People in its official duty of Judgment regarding acts and commissions which are contrary to the Constitution?
“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above the master; that the representatives of the people are superior to the people themselves;”
-Essay 78, Paragraph 11
The validity of the thing does not suppose the thing to be without acting authority or continuing existence, especially when that thing has the power of force and the weight of the Will of the Legislature. The People themselves cannot declare the validity of any act against the Constitution without the protection of the courts - which you have failed to supply us with the framework to implement or empower.
“If it be said that the legislative body are themselves the
constitutional judges of their own powers…”
-Essay 78, Paragraph 12
They most certainly act that way and will continue to do so, as you describe their ambition to be without limit while simultaneously stripping the coequal judicial of its ability to balance the imbalance of that ambition.
“… and that the construction they put upon them is conclusive upon the other departments it may be answered that this cannot be the natural presumption where it is not to be collected from any particular provisions in the Constitution.”
-Essay 78, Paragraph 12
And who, praytell, are the people to have to speak on their behalf regarding such a complicated and intricate matter, Mr. Hamilton? Who among us is so capable in both expense, time, and power to exercise that investigation and act upon its logical conclusions, regardless of the final outcome of them?
“It is not otherwise to be supposed that the Constitution could intend to enable the representatives of the people to substitute their Will to that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority.”
-Essay 78, Paragraph 12
Most precisely, Mr. Hamilton! Yet please proclaim how you expect a “feeble” court, which has no teeth within the constitution to supply the authority to maintain the limits assigned to the Legislature and Executive.
“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”
-Essay 78, Paragraph 12
Again, your logic begins to break, Mr. Hamilton. Are the courts and its judges expected to read the tea leaves of public Will and its changing notions and ideas across decades and centuries and simply alter that Will, which is written and understood as a Constitution, merely to satisfy those who are vocal to the detriment of all those who are not? Where a man is born today, his understanding of that great Constitution is set in one manner. Yet, throughout his life, how many manners may that Constitution be set about, and to what degree does it alter from that man's original understanding and operation underneath? Are we to expect the whole of society to wake every morning and brief the digitally printed press in order to determine the court's interpretation of that public's Will co-decided by a Legislature, which shifts as often as the wind itself? Is the Constitution suddenly and without notification the matter of Democratic Notion and popular theory?
“If there should happen to be an irreconcilable variance between the two, that which has the superior obligations and validity ought, of course, to be preferred to the statute, the intention of the people to the intention of their agents.”
-Essay 78, Paragraph 12
Most certainly. The Constitution is always to be given the greatest preference to the detriment and dissolution of all other legislation, acts, boards, bodies, notions, institutions, ideas, or otherwise as a man may devise - without Constitutional amendment and proper debate amongst the Union.
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the Will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.”
-Essay 78, Paragraph 13
Here again, lies a massive issue and oversight, which I shall summarize for you, Mr. Hamilton:
Where the Constitution of this Great Republic rests upon the Consent and Will of that Public, to the degree that they don’t seek to alter or abolish it, it is most firm in its principles and provisions. Whereas, you have charged the Judiciary with the power to interpret the Will of those People who consent to that Constitution as an extension of their Will and the Legislature of Representatives who seek to alter or expand upon that Will through Bill or Act by the power of the Sword of the Executive. Therein, it is upon the Judiciary which you charge the ability to Alter or Abolish the very Will of that Public through argument and interpretation, or outright ignorance of it, in notable connection and collusion with that Legislature and Executive as the language of both the latter derives and rests with the former. A process which is to occur not from a poll taken from that Public, as a Constitutional Amendment would require through consent of a majority of the State Legislatures, but rather from immediate and determined fact-finding within particular and circumstantial cases brought before that Judiciary which within and solely rests the power of interpretation of the Public’s Will, understanding, and acceptance of that Constitution and its “Living” meaning, which is ought to change as radically and passionately as the arguments presented and the language involved. Correct?
“The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first. (Meaning which law was last passed)
But this is mere rule of construction, not derived from any positive law but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law.”
-Essay 78, Paragraph 14
A rule within itself is solid and foundational as long as the language and meaning of the words used do not alter from its original construction or the understanding of the public from which its Will is derived.
“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the Constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
-Essay 78, Paragraph 16
Upon what logic may they rule such interpretations? Is their ability to freely interpret not itself the action of one's Will in Judgment? Here, you carefully draw between the two while entirely avoiding the obvious connection of these manifesting as one.
“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
-Essay 78, Paragraph 18
And what protections does the Judicial supply against those oppressions? Where those oppressions manifest not in the direct form of injury to the minority but in the indirect, those minorities are just as oppressed, are they not? To what standing do you provide within any court or before any judge where that party is harmed but not injured? To what degree can that minority or majority claim a right when the various provisions of the Constitution are not framed as a right but rather as a Will?
“Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness…”
-Essay 78, Paragraph 18
Another fundamental principle without a framework or mechanism which would have by nature of the draft been best bestowed within the Judicial as they are principally assigned the ‘Citadel of the public justice and the public security’ mandate you prescribe, which was never genuinely enshrined to their coequal branch of government and has since become a most sincere principle without practice or accountability.
“…yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions;”
-Essay 78, Paragraph 18
Justifiable to what and whom? The Constitution provides no remedy you suggest, though the Judicial is supposed to be that remedy. Unless you are inferring those majority constituents are self-justified in their collective non-compliance of any law or provision of the Legislature and Constitution and, within such, are morally uncorrupted in their righteous rebellion. I’m sure that assurance will rest well with the dead and imprisoned who will inevitably follow as the ambitious Will of the majority Legislature to recapture the minority members and their majority constituents through their enforcement commissions who claim the exclusive right to force. All of this is unchecked by a blind Judicial and made worse by the threat of the Sword of the Executive, even if that authority is granted by the majority of legislative members who represent the minority of concerned vocal constituents.
“…or that the courts would be under a greater obligation to (collude) at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.”
-Essay 78, Paragraph 18
I respectfully disagree, sir. Is it not the foundation of the right for Trial By Jury, which is intended, among many things, to breach through the stranglehold of Judicial prudence, which seeks blind application of the Law in opposition to moral or righteous opposition to it? If the people could rest so assured as to the court's obligations and allegiance to the people they serve and mediate, a Trial by Jury would become the lesser method of seeking Justice amongst those and all people. Therein, is it not the rules of those courts of Trial that seek to align Juries with the Codes and Laws of the nation, and therefore the perspective of the Judicial, through exclusion of fact or finding from the ears of the Jury, under threat of mistrial, fine, or imprisonment for anyone seeking Truth in the sterile environment of Law, where that Truth is seen as unrelated or unimportant when weighed against the violations of Law and the rules and procedures of courts?
“Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
-Essay 78, Paragraph 18
How do you suppose, Mr. Hamilton, for the people to engage in such a solemn and authoritative forum? Should the people write a letter to those representatives, and if so, how many signatures would be enough to undo that interpreted Constitutional Will we have established? One hundred thousand? Ten million? Among the continental United States today, is there not this number and greater who would sign a letter or petition to the government asking to be relieved of our Constitutional Republic in exchange for some other form, such as a Democracy or a Communist state of affairs? Perhaps you would imagine us picking up our muskets and riding on horseback to the Capital to make grievances known to those representatives as if there are enough among us so financially capable and willing - and so, what then? Do we threaten our men and women in uniform? Do we point our violence towards the innocent within the government or existing around it? Do we risk those who have dedicated their lives to our defense and safety in both the military and law enforcement, who, by duty and oath, are sworn to protect what you suppose us to gather and gain the authoritative act to amend or end?
None of the above is, of course, avoiding the reality that, as you just made so clear, we, the people, are collectively and individually bound to that Constitution and the provisions of its people, and therefore, the act of any solemn or authoritative attempts at annulment or radical amendment is itself a rebellious act or insurrection against our own Will and countrymen. We, the people, have seen the results of such actions, such as the famous French Revolution (1789-1799) and the resulting chaos and happenstance of government therefrom, only to be found under an inferior civil order of laws, such as the Napoleonic Codes of France.
It is a free and evolving people who choose their Law in Flesh (Living Common Law) and their Constitution in Stone (Immutable). Yet without its just defense, we experience the reverse today - Our Laws are stones thrown at us from above, as the Great Constitutional Republic is in a state of continuous decay.
“But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”
-Essay 78, Paragraph 18
Not just fortitude, Mr. Hamilton, but outright rebellion against that Legislature which enacts its Will which you would have the Judicial strike when it stands against the Republic and the written Will of its People. To mark those judges as the enemy and meal of that pit of snakes that predictably writhes and seethes whenever and wherever confronted. Where the Judicial does strike down, that writhing pit does put its members to inventive means of override, such as the Body Politic, which circumvents Judicial quarter by some treaty between those coequals of Government which is otherwise enacted but never announced.
An uncommon fortitude which you grant those Judges neither prestige nor security within, and without no man or child within the Republic can rest.
“But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws.”
-Essay 78, Paragraph 19
From what class or stock of people did you assume the Executive to select and the Senate to confirm such Judicial positions, Mr. Hamilton? Did you imagine a farmer would be chosen from amongst these many people whose commitment to Constitutional Ideals was founded within his community and upbringing to rise to that Superior Federal Bench of Guardianship? Is it not within the interests of both the Executive and the Legislature to select for themselves those who have proven to be friends, if not highly charitable to the aims of those selectors? Is a man supposed to gain all the relationships and connections needed to be so selected to the Supreme Court and its circuits, only to turn tail and grow a moral fortitude for the plights of its people not elected? To return to those who elevated him not favor and guarantee, but to arrest them of their devices and schemes merely on the basis of oath?
If oath and office were guarantors of allegiance, the Monarchy would be chosen over all other systems.
“Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them;”
-Essay 78, Paragraph 19
A check mark, but rarely a checkmate.
“…who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of.”
-Essay 78, Paragraph 19
A leisure perhaps of your time, but we are all more than aware of the Court's impact upon our collective character in this modern period. When the enemies of this Republic find sympathetic ears in the courts, they celebrate them, raising those Justices into the realm of celebrity while forgoing the understanding of the process and due course. When the enemies of this Republic find deaf ears, they plot to dissolve its impact, impeach its voices, impinge its character, and scheme methods for Congress to avoid its critical judgment.
In this modern era of modern ideas and before, we are all well aware of that Court and its judicious pursuits towards ends that rarely resound within the Constitutional Provisions too many have laid and lost lives to defend and uphold.
“The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.”
-Essay 78, Paragraph 19
Indeed, there have been many judgments and critical observations made and made publicly to the shock and applause of those who pay attention, and yet too few at times to arrest the course of Legislative pursuit towards ends by means which seek the undoing of the principles of a Constitutional Republic. If we say anything there, it is to say the enduring resilience of the Constitution and its people is truly unparalleled in human history. Never before has there been a nation of laws that benefits from a seemingly endless supply of volunteers who would throw themselves on and before a Flag of Stars and a Document of Dreams for no other promise or reward than to keep it. A genuinely selfless selfishness which every dictator and Monarchy the world over can only command of their people but rarely endure the fervent and enduring consent of.
“Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”
-Essay 78, Paragraph 19
It is to those men and women that I write and continue writing for, as you have, Mr. Hamilton. Tis only when those considerate men of all beliefs and backgrounds forgo that timeless struggle to lapse into distraction and distress that we can genuinely say our principles are lost and our children damned to the whims and wills of the ideological and sinister enemies of our Republic and its Constitutional Will.
“That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it;”
-Essay 78, Paragraph 20
I won’t attempt to compete in reiterating your sentiments and fears here, sir. You have said them better than I.
“If to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.”
-Essay 78, Paragraph 20
In the stead of popularity, our just Judicial leaders have chosen the apolitical as the least resistant path. Our Judges, as the old saying goes, ‘Leave to Caesar what is his,’ and to the people the scraps not yet arrested by Federal expansion under the guise of security and confidence while committing to modes and means of crisis to ensure the apparatus yet more need of that ever-present interference not yet envisioned or dared within the political encapsulation already established. Any proposal or action met with outcry or damnation by the public or our legislature is never abandoned by that class but rather set aside till the next crisis or drip-fed into bills too large for any being to read and understand within a timely manner before its inevitable established precedent has hold of those Judges and Justices and Representatives alike.
“There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government.”
-Essay 78, Paragraph 21
If the voluminous laws are characteristic of a Free Government, does that imply a less free society is characterized by significantly fewer laws bearing less complexity and volume? Is it not the foundation of Common Law, which you suppose our nation to be governed as our core legal logic, to bear the maxim within so simply stated as:
"Ignorance of the law is no excuse." A maxim carried by our very institutions today places upon every man and child within our societies an unimaginable burden, as no single individual can ever possibly know all the laws and their corresponding heaps of regulations. Isn't it a truth of your time and ours that the Legal Profession has set about itself to specialize its practitioners into distinct fields of law and their study, as the rules contained within are to such a degree of complexity as to be inconceivable for any individual to understand and practice them all?
Is it not pertinent for our Judges and Justices to review precedent and constitutional provisions before argument or lawful judgment?
Is it not the nature of conflict mediated by a Judge that each side is given equal opportunity to present their evidence and argue their position, if in no other effort than to sway or affirm that Judicial opinion?
Do we not supply our Judges and practitioners with annotated copies of those voluminous codes for study and reference?
Is it not also true within your time and ours today across many jurisdictions where anyone can challenge and, upon passage, be accepted before the Bar and, therefore, legally capable of practicing law?
Is it not the 'practice' of law and never the mastery of it? Much as it is the 'pursuit' of science and not its settlement.
Are we to assume the only acceptable Judge or Justice has both the excellence of perception and the articulate foundations of all nuances and intricacies within all fields of legal study?
How is it that a society made of laws and freemen is not hindered by that complex volume which is beyond the comprehension of those who are governed by it?
Mr. Hamilton, with all due respect, at what point do the scales within that Free Society and its freely expanding voluminous laws begin to tip the scales of opinion for those very citizens who you suppose are too feeble to understand them, never mind the shear impossibility of a mind required to comprehend them all entirely.
Wherein, if the Laws of the Republic are based within the Constitution of that Republic, and that Constitution is of a Limited sort, and that Limited sort can only be interpreted to a limited degree before it breaches the foundations of the limits placed upon that Republic by the words of that Constitution - is there not an upper limit to the laws and their ever-expanding regulations while staying so reasonably and understandably confined to the Will of those who consent to be Governed?
Is the public so desirous and greedy in its Will that the laws of its country and, therefore, its governance must infinitely expand, while the text of its Will represented as a Constitution rarely, and with great difficulty, is added or removed from?
What you suggest, though both historical and presently true, is functionally impossible if the fundamental and originating document is otherwise so limited, and the authority of those who prescribe the laws must receive from those governed their consent.
To endlessly expand the laws within the Limited Republic requires the infinite expansion of its Constitution and, therefore, the expansion and reaffirmation through an amendment to claim consent from the governed.
As the saying goes, "There are only so many ways to cook an egg." At some point, with additional ingredients and methods, one is no longer cooking an egg, but rather adding the egg as an ingredient to a different recipe entirely, which can't be said to be a new method of cooking an egg, but rather a completely different and standalone dish itself. Where that dish is no longer an egg being cooked, it can also be said that the regulations and laws are outside of the Constitution, regardless of additional ingredients presumed through momentary crisis or calamity.
For Mr. Hamilton, did you not just iterate within this same text the nature of this expansion and our need to safeguard against it?
I quote to you sir, your own words: "that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community."
Therein, is it not the duty of those justices not to learn all the intricacies but to cast upon them a thoughtful and thorough eye in first determining whether the Will of the public through Constitutional consent has been violated by that 'major voice' whether present in a crisis or expanded piecemeal over time. Is it not just of those Justices to seek annulment of any law outside the public's Will? Is it not within the public interest to ensure the laws derived from that consent are both in line with those fundamental laws, being the Constitution, which all laws are based on and derive their basis from?
At what point do the lawmakers themselves become lawbreakers? For the degree of making is not infinite when the Constitution is so limited based on the Will of its People, which can only be stretched so far.
“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them;”
-Essay 78, Paragraph 21
Strict rules which you did not provide for that court, as your entire argument is based within the arbitrary oath and tenor of a Constitution you suppose is mailable to changing moods and legislative ambition, which itself entirely rests upon not the Will of that Public but rather their mood to accept any new conditions drawn from it regardless of their basis in rationality, good government, or established precedent which is so easily altered through devices of interpretation and legal argument - both of which are ever fluid and susceptible to political belief and tolerance of individuals charged with their care and attention.
“…and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”
-Essay 78, Paragraph 21
Tis the foundations of a living common law doctrine which sets about itself that precedence across centuries, to be endlessly quoted and used by all those after, which relieves from those Judges the burden and duty to understand every case and affair within that precedence.
As you and your wise ilk once so eloquently stated - We hold these Truths to be Self Evident while you now attempt to claim that the knowledge of Law, which derives its power and force from the Will of the Public, is beyond common knowledge and understanding.
Is murder not murderous?
Is poison not poisonous?
Is fraud not fraudulent?
When the laws become such a burden upon individuals and corporations alike, as you have stated, is it the rightful duty of those citizens to repeal or annul those laws and burdens which no longer work towards a man's happiness? What soldier or representative or civilian or corporate officer would willingly lay their own lives and the lives of their children upon an alter that demands them not to understand its meaning, a meaning reserved only for the most studious and laborious among us who claim the extraordinary power of articulate foresight and knowledge.
To what moral degree can you demand men to lay down their lives in the support of laws they don't recognize, have never read, and, by your logic, cannot ever understand?
With such an unreasonable standard, by your logic, Mr. Hamilton, it can only be the highest duty of the judiciary to strike down all those regulations and laws from and within which the common man finds no common value or common meaning. To take from that common man their power and Will, codified within a Constitution of their collective agreement, and so alter its meaning and words as to produce an endless bulk of laws cannot ever be said to be from that common man's consent - the act of anything less is Treason against common belief, common sensibility, and common understanding.
Anything else is to establish an order about the Republic which necessitates the demand of professional translators who are empowered to interpret the interpretations of those Judicial Interpreters who themselves interpret the nature and meaning of Regulations and Regulators, who find their interpretations from Laws of Legislatures who ambitiously interpret the application from the common Will and Consent of the public through Constitution or apathy. The result of all this can only be Tyranny through Subjective Interpretation and Corruption of that Public and its commonly understood Constitution.
“Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”
-Essay 78, Paragraph 21
Mr. Hamilton, again, with all due respect, I rebuke you.
How is it that you can help draft this Great Republic, ensuring its tenor is the Will of the Public, constructed with their consent and in the pursuit of their happiness, and yet when the matter of a Supreme Federal Judiciary comes up, which is the voice and mechanism of that People to ensure a coequal check and balance upon that Government within the Limited Constitution which stands as that people’s Will, you choose for those people, what can be best described as a mythical imagination of a man.
What you have just described is no less than the Philosopher-King supposed by Socrates in Plato’s Republic. In essence, you command that the Justices of that great court must be constructed with the heart of the most devoted priest, the mind of the most outstanding scholars, and the fortitude of a military battalion commander in battle as Socrates imagined long before you. From which, you suppose, this panel of Philosopher-Kings who shall inherit that Supreme Court, much as Socrates supposed, shall gain no wealth, no benefit, a modest government salary and benefits, and no special privileges outside of the title of Supreme Justice itself for as long as their tenure lasts. Furthermore, you instruct that these Philosophers shall rule upon that court from the day of appointment until death or retirement. Suppose at any point they are found lacking - In that case, they face nothing less than the most incredible show trial in history that only the US Senate can provide. If found wanting therein, they will be removed from their position in public office with their name forever besmirched. Their reputation bearing the mark of nothing less than a disgrace as every case and matter they ever touched or judged is brought into questions of legitimacy.
You have plotted and sold the public to hand the People’s Supreme Court to a mythical creature of Socratic design; Not just one mythical creature out of an entire nation, but six of them (later amended to 5 and then amended to 9 Justices).
Do you not now see what you have wrought for this nation and its people, sir?
“These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.”
-Essay 78, Paragraph 21
I am jealous of you, Mr. Hamilton, as unlike you, I cannot and will not assume myself to exist in a world so entirely built upon ideals and imagination as to move swiftly beyond reality and into the more assured realm of Pure Principle constructed by the devices of that imagination. How does a man such as yourself write so much, and so well, with such conviction, and yet see so little?
“Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.”
-Essay 78, Paragraph 22
On the whole, regarding the Judiciary, the Convention failed. The Convention failed to set any limits or framework for the Court within the Constitution. The Convention failed to deliver to the Court any pertinent powers within the Constitution that might be shielded from Legislative meddling. It failed to establish the Supremacy of the Constitution most fundamentally for that Court. It failed to properly frame the Common Law Doctrine into the Court to avoid the pitfalls of Monarchist Principles, maxims, and precedents. It failed to address the issues of politics related to law and review. It failed to address the issue of redress of grievances, which the Constitution specifies, but without any method or means provided. Thus, the idea was almost entirely pointless and feeble, like the Court you failed to construct.
Even in the matters related directly to jurisdiction, under Article III, Section 2, the Convention failed to adequately address that issue, which it spent such extensive space laying out, not to mention the 11th amendment, which was immediately required to repair a massive oversight and prevent a litigious onslaught for the Court to deal with from out-of-state residents who had complaints of other States.
You failed to give the Court any powers and asked them to be coequal in government. What powers you later gave were unconstitutional, as you failed to amend or make whole Article III related to the Court and Federal Circuits. On top of this, you most verbosely carry on about the power of judgment for the Court while calling them a “feeble” branch. Therein, you allowed the Court to assume the power of Interpretation, which is a most destructive power that is almost entirely of a political nature. Without restraint, they now claim the ability to assess prescience and precedence, lawfare over the law, fundamental versus functional, and all other manners of destruction that can be wrought.
The sheer number of issues your principles and failures have caused the Republic due to your lack of understanding of the Courts, of Constitutions, and their critical function within Governments, most especially at the Federal Level, and indeed of any Republic which is without a Monarchy, while piously carrying on about the need for the most exclusive of intelligence which can only be classified under the Socratic Philosopher-King conceptualization has left every American of your time and well into mine with a most disturbingly useless, constitutionally illiterate, empathetically biased, interpretatively inept, and lawfully incompetent Court in the history of mankind.
Thank you, Mr. Hamilton, for your tireless service.
Next time, I kindly ask you to work a little more on the function of a Government and its parts and a little less on the salesmanship of it.
With all due respect, of course.
Marbury v. Madison (1803)
The essential background of this particular case revolves around The Judiciary Act of 1801 passed by the Federalists, in which they attempted to pack 16 circuit courts with their party judges. The law was almost immediately repealed upon the election of Thomas Jefferson's administration (Democratic-Republican Party, 1801-1809) and the passage of their own Judiciary Act of 1802.
Mr. Marbury, who was selected by the outgoing President John Adams (Federalist Party, 1797-1801), filed a petition with the newly formed Supreme Court asking that court for an order to command the Secretary of State of the Jefferson Administration, one James Madison, to honor the appointment which was already consented by the Senate.
Within this case, the court not only weighed whether Mr. Marbury was due his appointment, even after a change in the Presidency and Cabinet but also whether the Secretary of State has the authority to seize the seal granting Mr. Marbury his position or not, a position which was guaranteed for a term of five years.
Within this seminal case rests the foundational 'teeth' of the modern Supreme Court and its circuits relating to its purview and powers. As case law goes, this majority opinion penned by then Chief Justice John Marshal has extended far beyond the case's outcome to form our understanding. Eloquently laid forth for our consumption, I will relay to you the most interesting and pertinent sections of that decision while skipping over the matter of Marbury v. Madison itself, as its relevance isn't relevant to our purpose here;. However, as always, I encourage you to read the originating text if you have the mind for it.
We now join Chief Justice Marshal in the middle of his penned decision as he begins laying forth the rationale that formed that critical basis for the Supreme Court's Judicial Power as it is mostly understood today, in marked contrast to the passionate outline set forth by the previous Alexander Hamilton.
“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. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court.”
-Line 57
First, let us draw attention to the Court's two critical points of focus here: "If he has a right" and "protection of the laws whenever he receives an injury."
The first point, in this case, is attempting to address whether Marbury has a right to a position which he believes himself to be owed, which is granted to him by the powers of the Constitution and corresponding legislation and its agents (President and Senate) and whether these are enforceable and therefore owed to Mr. Marbury.
The second most critical, and I would argue the most disagreeable of assessments, comes from two ideas as it applies to the legal application of Constitutions - protection of the law and injury.
To suppose that the Constitution's existence is to grant protection to its citizens and agents is to believe those individuals are not the origination of the thing but somewhat subservient to it. That all citizens within the Republic stand under that document is to suppose that the Constitution takes the place of a King and his Court - which is the breath and nature of the King's Common Law Doctrine. Herein, the Court, having been left without any other doctrine or framework of core logic, is utilizing the only known and accepted doctrine to apply its logic to this case and all cases thereafter. This here, ladies and gentlemen, is what I submit to you as the first crack in that great shield of the Peoples Republic.
The second crack in our shield comes immediately after the first, where Chief Justice Marshal writes, "Protection of the laws, whenever he receives an injury." This idea, which on its face appears relatively straightforward, has within itself a barely tangible but most corrupted logic.
Chief Justice Marshal is not asking whether the Constitution is derived from its people as a declared limitation upon the Government they have consented to erect, as Mr. Hamilton suggested so passionately, but rather, he is framing the Constitution as a deity or King from which all others serve, and therefore, whether one has a claim of unlawful injury sustained from improper application of its underlying tenants (implied) and provisions (expressed). He goes on to frame this from the doctrine by stating:
"One of the first duties of government is to afford that protection."
This, I would extend to you, is a falsity under a Limited Constitutional Republic. It is not the duty of a Republican Government to "afford that protection," as the US Constitution is not a guarantee from the Government to its people, but exactly the opposite - the US Constitution is a limit upon Government in both form and application. The power of a Limited Constitution is from the people themselves; therefore, it is the People's duty to afford that protection that their Government and its agents merely manage. The Constitution's very written word and provision is the highest word of its citizens*, from which all power of Government rests. The opposite of this state of affairs is seen within a Monarchy or Democracy, in which all power rests with the King, who oversees his Subjects. Therefore, all action taken by that Government is in his name and on his authority. Indeed, even criminal infractions within a Monarchy are framed as "King Charles v. John Doe" as an example.
Today, this framework can be seen as all cases framed as such from their very beginning, before a single argument or cause is heard or considered within that framing, such as "John Doe v. The United States" and vice versa.
Though my opponents, I can only assume, will attempt to claim this is a mere formality and that this framework does not impact the arguments or structure of the decisions, as those citizens can argue from and seek relief of and under the Constitution - which itself is the very pernicious unfolding of the logic I'm attempting to explain to you here.
*Note: The use of the word “citizen” here is merely for the purposes of communication within a language you understand. American’s are not ‘citizens’ as the word is implied within both law and common nomenclature, but rather something else entirely, which is another matter in itself.
“In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law.”
-Line 58
The reference here is regarding ‘The Commentaries of the Laws of England’ by Sir William Blackstone, which the Chief Justice is utilizing as the foundational grounding in law for his assessment and penning of the Supreme Court’s decision, both here and afterward.
'In all other cases,' (Says Blackstone), 'it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law
whenever that right is invaded.'
-Line 59
With the assumed framework the Court holds, it extends the logic from all other common law jurisdictions worldwide. The concepts here are "Rights" and "Freedoms".
As it is often claimed, without ever a moment of abatement, everyone has "Rights."
My right, your right, his right, the government's rights. "You have no right!" they proclaim, without ever a moment of consideration for the very word they utter and its meaning and, equally, therefore, no consideration of its consequences.
To better understand the thing, one must define it. Wikipedia has this to say about legal rights:
“Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people according to some legal system, social convention, or ethical theory.”
Herein, I want you to consider the specifics of how it is framed, with words such as “freedom,” “entitlement,” “allowed,” and “owed.” All of which implies that you, dear reader, are so entitled to a thing as to be allowed its use and therein the protection from being denied that use or freedom, where that denial is not otherwise prescribed by law or taken from you by due process of that law.
On the surface, these things appear good and wholesome, perhaps even taken as far as Wikipedia’s “normative” classification. For most jurisdictions around the world, it is, but the Limited Constitutional Republic of the United States is not a normative government.
Given this, we have for ourselves a most difficult situation to describe, which is best summarized in the most brutal language possible, which is:
You don’t have any “Rights”.
The English have Rights. The French have Rights. Canadians and Australians have Rights.
Americans are a Free People.
You, within yourself, individually and collectively, are the Rights and Freedoms. Your “rights” are not extended or granted from a thing, a King, a government, a declaration, or even God himself. They derive their basis from you. You are the thing from which all other things derive, especially your government and its powers and limits.
Consider, if you will, the language of the First and Second Amendments, as these are the backbone of what is generally described as the US Bill of Rights.
The First Amendment does not describe that you have “the right” to Free Speech, but rather, that Free Speech and Freedom of the Press shall not be infringed. Whereas the Second Amendment so reads, “…the right of the people to keep and bear Arms shall not be infringed.”
What the First and Second Amendments do not do is grant a thing to be protected or bestowed, but rather and most exclusively, declare the thing that already is cannot be thusly infringed. This concept is later enshrined within the Constitution, which states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
-9th Amendment
All of which is, of course, a rather large and complex matter to be discussed and examined more thoroughly in another article, most especially as it relates to these “Rights” and how they fall under the general distinct definitions of both “Positive” and “Negative” rights, from whom those rights derive and their limits, and other such critical questions.
For this article and its conclusion, I’m not asking you to either agree or disagree with the above assessment, but rather to keep in mind this concept from the perspective of the Court in this decision and how they have framed the issue. The Court is operating under the idea that the Constitution and its amendments are in their nature a Positive Right, and thus a granting of a thing from the Constitution to be protected - which is in direct contrast to the previous framing by Mr. Hamilton, the nature of a Limited Constitutional Republic, the 9th Amendment as written, and the ordering and fabric of America and its People, who are fundamentally a Free People.
“And afterwards, page 109 of the same volume, he says, 'I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the (Church), military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.'
-Line 60
Setting aside the church, military, and maritime jurisdiction from our analysis here, I ask that you notice the language this Court uses in its framing. Specifically: “…that every right, when withheld, must have a remedy…” and “… every injury its proper redress.” This is the language that is used to deny your redress and withhold any remedy, ironically.
“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.”
-Line 61
Herein, the Court is establishing itself as a mediator to conflict, as opposed to the source of remedy granted under the Judicial Power of Judgment, while further enshrining the concept of Positive Rights as being 'vested.' The Freedoms of Americans are inherent, not vested, unless one claims that the Constitution's ratification in 1788 was the act of vestment, a somewhat nuanced issue and dubious logic.
“It behoves us then to inquire whether there be in its composition any ingredient which shall exempt from legal investigation, or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself, is, whether this can be arranged with that class of cases which come under the description of damnum absque injuria—a loss without an injury.”
-Line 63
Here, the Court is now framing its scope and to what application can be made for redress of the Court. The most damning of which is the phrase “a loss without an injury,” which is perceived as being unactionable.
“This description of cases never has been considered, and it is believed never can be considered as comprehending offices of trust, of honour or of profit… It is not then on account of the worthlessness of the thing pursued, that the injured party can be alleged to be without remedy.”
-Line 64
It should be noted that when a loss occurs, such as the removal of a Right or Freedom, that removal is on the highest authority of a King or Constitution, which empowers those snakes of the legislature to remove or add as they will it - this can rarely be said to be an injury, as the intention and act derives from an authority far beyond those who suffer the loss. Most explicitly, it is the relationship between a King and country and subjects.
“Is it to be contended that where the law in precise terms directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the character of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country?”
-Line 67
Equality before the law can be said to create both a protection and a consequence. The protection is that all are equal and treated as such. The consequence is that all are equal and treated as such. Therefore, we can inadvertently assign authority to those with a claim to it where the law profession becomes not one of equality but rather the unequal distribution of defense among its many defendants and the persecution of all others. In cases where the assumed ‘Authority’ is publicly or privately held with prejudice - the result is almost always with an underscore of malice enacted with empathetic rigor.
Our seemingly natural ‘Appeal to Authority’ is a most pernicious weapon. Rarely understood and often subconsciously applied in the most subversive and destructive ways within both the courts and the court of public opinion.
“Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says, 'but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers: for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents by whom the king has been deceived and induced to do a temporary injustice.'“
-Line 68
Tis one of many fundamental issues with Common Law in the respect of a Republic. Are we to claim that a President or Legislature cannot personally injure a citizen or oversee a loss? Though those individuals may bear the privileges of immunity, as the case is, the idea that such an event cannot occur is ridiculous. The matter before the law is not the same or equal to the matter before conscience when measured in the result.
“It follows then that the question, whether the legality of an act of the head of a department be examinable in a court of justice or not, must always depend on the nature of that act.”
-Line 71
From my understanding of its history, the backstory to this particular line relates to President Jefferson’s haughty criticisms of the court, where he was concerned about the rise of another Legislature, without accountability, within the Government.
“If some acts be examinable, and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction.”
-Line 72
Give to Caesar what is Caesar’s, and to God what is God’s - as the old phrase goes, which is most unbecoming of a Republic, especially when the court turns blind.
“In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule.”
-Line 73
The encroachment of politics into judicial decisions forces a court to weigh matters and cases not on fact but against fear.
“By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.”
-Line 74
Can a Republic let this logic stand as true? Suppose a President is only held to account within himself and his legacy, not in any meaningful manner towards the coequals of government and the Constitution by oath, which he swears to uphold. What is the expected result under the assumption that a President is chosen by Popularity?
Is there anyone else within a Republic who is granted the power of a Sword but is otherwise accountable only to himself? By extension, this court grants all of the President’s officers, boards, and commissions a nearly immutable immunity.
Can it ever be said that a single President is responsible for the 30,000 appointments to be made by him, over 2,000 boards and commissions, 50 federal departments, and approximately 9 million total federal employees? While the Legislature assumes many of these posts and positions through the passage of Acts by it, there is no meaningful method of accountability amongst a body of politicians who are shielded individually through a collective, nor of the individual President who is charged with specifically ensuring those Bills don’t pass when their Constitutionality is questionable, if not outright unlawful.
“In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.”
-Line 75
It is a most disgusting precedent to arrest a nation under. A matter of definitions, it appears. For when I and I assume you, the demand of our Courts to be apolitical in their view and application of the law, and most especially in upholding the Constitution, I don’t think any of us imagined “apolitical” to mean avoidance of any action which might otherwise be of a political nature. Lady Liberty is now both blind and deaf, yet still wields her sword of justice through judgment with an unlawful compelled justification. To what measure is a scale if it is unbalanced by means of its manufacture? Adding ten pounds of weight to one side of that scale can only require every citizen to slice from themselves 10 pounds of flesh just to reach balance before any argument of any merit can be heard - which is the nature of the rule ‘a loss without an injury.’
Tis the entire realm of the Executive and Legislature that every action they perform is of a political nature, and therefore, the court has arrested itself from its very purpose of oversight under the highest principle of the Constitution itself - which is the purpose and promise of that Supreme Court, if in no other regard than ideally.
Is there any wonder why the words and promises of the nation and its Constitution are significantly better than the practice of it?
“But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.”
-Line 76
Much can be said about how these Judges paint with such fine brushes. Like a battlefield of lost soldiers decaying in the afternoon sun, while the artist instead draws focus to the flowers in bloom around them.
“The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the president, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”
-Line 77
Who assigns and reviews that Constitutional and Legal discretion if not the Courts? Is it not within every President and Legislature to claim their actions are always of the highest authority and discretion? Does a King not suppose his rules to be fair, his taxes just, and his impositions to be a reward for the service of his ass upon a throne? Damnable nonsense!
“The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority...”
-Line 80
I disagree, and so does the Constitution in nature and form, and even expressly, as it relates to the citizenry. However, in this particular case of Marbury, the matter is one of injury by the Executive against a future Magistrate. Therefore, the court could be said to be correct here, except that the court failed to make that assessment explicit and, therefore, set a most dangerous precedence in its wake.
“'Whenever,' says that very able judge, 'there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be in a matter of public concern or attended with profit), and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the writ expresses, and upon reasons of public policy, to preserve peace, order and good government.' In the same case he says, 'this writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one.'“
-Line 93
I always hated the phrase “Good Government.” One could poll a hundred people and ask them what they believe a Good Government ought to be and do. You would generate from that a hundred different answers, among them many having no idea about the fundamentals and merely an idea of what they believe a Government ought to do or be. The nature of the phrase falls apart with the implication of ‘Good,’ which is a moral judgment of a thing in opposition to ‘not good,’ thus leaving the interpretation to both circumstance and argument - which is the purview and specific interest of courts and their agents to the detriment of all others and the enrichment of ideology or political expediency and justification of intention over results.
The function of the courts therein becomes the quelling of uprising and malcontent through the appearance of the highest authority or function to preserve that peace. Allow a man to say his peace in hopes he stops saying it, as it were. Oh, and don’t forget to charge the man a fortune for the “right” to say it.
“Still, to render the mandamus a proper remedy, the officer to whom it is to be directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy.”
-Line 97
The term legal here is highly problematic in general but fitting within this case as the remedy requested by Mr. Marbury is a writ, being the mandamus, to command the Secretary of State to perform their function as the Secretary.
Also, placing upon the complaint the requirement test as to whether that individual has other means to seek remedy, especially within a political environment when the court is explicitly empowered with such management, is difficult to pass. This court has now created two major tests for a citizen to seek relief and be heard by a branch that was supposed to be empowered to check and balance the imbalance.
“With respect to the officer to whom it would be directed. The intimate political relation, subsisting between the president of the United States and the heads of departments, necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome, as well as delicate; and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without much reflection or examination; and it is not wonderful that in such a case as this, the assertion, by an individual, of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should at first view be considered by some, as an attempt to intrude into the cabinet, and to intermeddle with the prerogatives of the executive.”
-Line 98, Point 1
Did you catch what he just said, dear reader? Don’t worry; he will reiterate clearly for us once more.
“…The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”
-Line 99
The province of the court, as a coequal of government under a Limited Constitutional Republic in which the Supreme Lawful Authority of the Public is paramount and foundational to its founding and frame, is within the purview of the Supreme Court, which that public has crafted to handle the specific matter you now attend to have no jurisdiction or mind to consider! Every question by which Government of the Legislature and Executive is by their nature Political. The entire apparatus of the Federal Government is, by its nature, political. To what standard can this be a measure except by the standards of a coward and a hack. The Supreme Court has exclusive* Original Jurisdiction over these matters as they relate to the Constitutionality of any Executive decision, memo, order, action, or otherwise. There is no other so qualified or empowered to do so, as even Congress itself is limited within this matter. Which, as a rule, is one the court can’t even rectify or consider as the rules and procedures you govern yourself under preclude the claim.
(*All of which was later repealed by Statute as the Supreme Court has been reduced to a ridiculous publicity and mostly ceremonial function in contrast to its former state of affairs and original intention. See further here.)
“If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How then can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process?”
-Line 101
There again, the test of injury is applied under the standard of illegality without any mention of an action that is unlawful, which is the fundamental purview the court has thrown out the window before it could even be established.
“…Where the head of a department acts in a case in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct,
would be rejected without hesitation.”
-Line 102
Is this what you desired and imagined of the Republic, Mr. Jefferson, when you sought to gut the court almost wholly?
How about you, Mr. Hamilton? Is this the feebleness of the court you sought to draft? That coequal of government with the power to check and balance against the Legislature and Executive you warned us all about? While you worried about the Legislature attacking the court, it was the court that destroyed itself and later petitioned the government for the removal of its remaining critical functions.
“The act to establish the judicial courts of the United States authorizes the supreme court 'to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.'“
-Line 118
This refers to the 1789 Judicial Act, later passed as an afterthought, to give the Supreme Court some powers as Article III was unfinished.
“The secretary of state, being a person, holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.”
-Line 119
Translation: The court is setting up the grounds for its decision that it cannot provide a remedy in the Marbury case, as the very power vested in that court by the Statute is unconstitutional.
“The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.”
-Line 120
This was almost entirely repealed later, as there was never a framework for this built into the Constitution. Whole Judicial Power was never defined; without definition, it is easily abused or, perhaps worse, unused.
“In the distribution of this power it is declared that 'the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.'“
-Line 121
Original Jurisdiction here means that the Supreme Court is the primary court interested in the case. Therefore, matters of Original Jurisdiction of the Supreme Court are heard directly there instead of passing through the other Federal Courts and making an application to be heard by the Supreme.
In modern times, the Supreme Court chooses its cases, can refuse to hear cases that would otherwise be Original Jurisdiction, and mostly only entertains cases from the Appeals Courts, which the Justices themselves hold a secret vote to determine the privilege of that hearing. This ‘freedom’ allows the court to avoid complex or politically sensitive cases, which are usually the cases that require a final Supreme Decision.
“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.”
-Line 122
This was a disastrous provision by the Constitutional Framers, which gave Congress the power to regulate the Supreme Court and the cases they could try. The Supreme Court has had many statutes issued against it over the century since, which ‘refocused’ the court into only very specific matters until our eventual optional court we have today, which rarely sees Original Jurisdiction cases.
“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.”
-Line 123
Quite right. Chief Justice Marshal correctly points out the ridiculous framing by the Founders of the Court as it relates to Jurisdiction and Powers. Appellate Jurisdiction here is in reference to cases that don’t originate at the Supreme, as mentioned previously, but which the Supreme Court could be petitioned to redress or which the Supreme Court could issue to that case to attend to correct a wrong judgment or finding of an inferior court. This is a critical component, as incorrect judgments that are allowed to create precedence can go on for decades or centuries and cause insurmountable damage to case law, the legal system, and the very Trust and Confidence of the Public in that system.
Hence, why I become so impassioned by these matters, and I hope you will be as well. The importance of the proper functioning of the Judicial System within the Republic is, in my humble opinion, greater than the Executive Branch itself.
So goes the courts, so goes the nation, one could say.
“The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire whether a jurisdiction, so conferred, can be exercised.”
-Line 131
It is a correct assessment, unfortunately. As the Chief Justice breaks down in length in the decision, the Judiciary Act of 1789 is a disaster of framing for the courts. The attempt at assigning Judicial Powers and Jurisdiction among the courts flew in the face of the Constitutional Article, which forced the court to render parts unconstitutional as it was incompatible with the Supreme Will established.
“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 recognize certain principles, supposed to have been long and well established, to decide it.”
-Line 132
Chief Justice Marshal continues,
“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.”
-Line 133
He’s talking about you.
“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.”
-Line 134
He continues,
“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.”
-Line 135
Both an excellently penned assessment and a scathing rebuke of the Framers and their oversight, which I myself have been frustrated with. Beautiful work.
“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.”
-Line 136
Exactly!
“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.”
-Line 137
Well said.
“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.”
-Line 138
A standard which has been iterated across the centuries of humanity, though difficult to enforce.
“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.”
-Line 139
This is a theory that should have been stated expressly within the Constitution, perhaps, instead of presuming it to be common knowledge across generations.
“If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.”
-Line 140
A matter most legislatures and executives would hope us to forget.
“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.”
-Line 141
The power of interpretation without limit or framework is a dangerous weapon but a valid argument, most especially when this court in 1803 was almost entirely left without.
“So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case.
This is of the very essence of judicial duty.”
-Line 142
It is difficult to disagree.
“If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.”
-Line 143
Quite correct.
“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.”
-Line 144
An immeasurable problem of the modern era and before.
“This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”
-Line 145
Exactly. The same must also apply to the Executive, which is another matter.
“That it thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution, would of itself be sufficient, in America where written constitutions have been viewed with so much reverence…”
-Line 146
The Justice goes on to list various provisions of the Constitution and how they are written to imply how the Courts must view them as a direction towards those courts in cases arising from them.
“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.”
-Line 157
The framers had some mind towards the Courts, at least.
“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.”
-Line 163
The final result of this case was a rather fascinating one. Mr. Marbury was denied relief for a writ to command the Secretary of State James Madison to deliver what was otherwise owed to him. The reason for this is because the Court, rightly so, invalidated sections of the Judiciary Act of 1789 as being unconstitutional, and therefore the Court effectively had no power in either regard. So, even though Mr. Marbury was owed the thing, the Court was powerless to provide the relief.
The undertones of this case, as every case has some form of political tone, is none other than President Thomas Jefferson and his Administration. The Court was forced into the most awkward of positions, with a Supreme Court being imagined as a permanent and coequal of Government being a reasonably new invention and having no Constitutional provisions outside of two sections of Article III which said nothing of the Court itself. Chief Justice Marshal, though one could argue he was a Statesman, was not politically daft. With hindsight, it appears that had the Justice not penned a decision to give Jefferson what was desired; it is entirely likely the Legislative blowback against the Court would have been significant from that Administration. Regardless, it was a blowback that occurred later, but given the circumstances, I expect few of us could have handled it better.
The failures of the framers can not be overstated as they relate to the Judiciary branch. Mr. Hamilton failed to understand the implications within the Federalist Papers, combined with a strong opposition of Jeffersonians who ideologically believed the Government so noble and its agents so true as to not require a strong counterbalance within the Federal Government. A reading of the Constitution, which is a fairly short document, shows the obviousness of this. Where the Presidency is quite limited in its ability to veto the Legislature, and the Legislature so empowered to manage and oversee the Executive and Judicial, and the Judicial being nearly entirely toothless to the point of having its core functions being but dust in the wind across circuits and statutes which are almost wholly unconstitutional - there exists within the Federal Government a Constitutional black hole, as it were.
Think of it, if you may, in this sense:
-Where a Citizen cannot counsel a President, they are otherwise unworldly to them.
-Where a Citizen can counsel a Senator or Representative, they are but one piece of a vast whole. To speak to them is to be listened to without being heard.
-Whereas to address a court is to be listened to and heard, and where that Court has the power also to speak and be heard, so the Government as a whole is forced to hear you instead of merely listening from on high.
At least, that is the principle idea.
Logic Chain
As Mr. Hamilton gave us his principles and Chief Justice Marshal gave us his version of realism, I, too, wish to investigate the nature of this circumstance as it relates to that Highest Court.
Hamilton made clear that he believed this higher court was to be granted the power of Judgment; Marshal was of the rationality that the highest court was to enact the power of Interpretation within Judgment - I submit that the Highest Court can only have what is logical for it to have, which is opposed to any belief or theory artificially granted to that body. As the Supreme Court can only be the summary of its Constitutional Powers, and as the Constitution is deafeningly silent on the matter, we are left with another interesting impasse.
Therefore, as one does or ought to do, I have constructed what is otherwise a preliminary Logic Chain, with its origination being the Origination of the Nation itself to determine the nature of its power better and from whence its origins are within, and therein the framework of the system itself.
We begin where it began:
Where a people, so declaring their independence through Representatives within a Continental Congress did declare their Right to rule themselves,
and where that declaration did declare the unalienable Supreme Authority of every individual within the three tenants of Life, Liberty, and the Pursuit of Happiness,
and where that declaration was met with resistance and answered in War,
and where that War was won by that People and its Militias and Militaries,
and where that Foreign Authority did withdrawal their claim to the subjugation of those People,
those People, unopposed, are said to be Free.
Where those Free People are Free they are said to hold Authority over themselves,
and where an Authority over self cannot exist when that Authority is abridged,
those Free People, unopposed, are said to be unabridged in Authority.
Where a Free People are said to have an Authority which is unabridged,
and where an unabridged Authority is said to be a Supreme Authority,
those Free People, unopposed, are said to hold Supreme Authority.
Where the holding of a Supreme Authority must be unopposed to be Supreme,
and where the Supreme Authority of any one individual cannot claim greater Authority than the whole of the Supreme,
and where the whole of the Supreme Authority rests in the Individual,
and where only a Higher Authority can make claim to an Authority Higher than an Authority,
and where only the highest authority can claim supremacy of a Supreme Authority,
and where the only Authority with claim of a greater supremacy over a Supreme Authority can be God,
and where God has not declared or made known his abridgement of Authority of that Supreme Authority on earth,
and where there is no Higher Supremacy declared against a Supreme Authority,
that Free People, unopposed, hold Supreme Authority.
For a Supreme Authority to exist unopposed it must be a Lawful Authority,
and where a Lawful Authority requires that Authority to be enacted under the Law,
and where the Law is a set of rules granted Lawful Authority,
and where a set of rules requires an Authority to establish as Law,
and where there is no higher authority than a Supreme Authority,
and where no Law can be said to be Lawful without Authority,
and where an enactment from an Authority must be an Authoritative Act,
and where there is no Authoritative Act greater than an enactment of a Supreme Authority,
and where a Supreme Authority has within itself any means to make an enactment,
and where a Supreme Authority enacts through a Constitution it is said to be enacted from that Supreme Authority,
and where a Constitution is said to be the most fundamental enactment,
and where an enacted Constitution is said to be the most fundamental law,
and where there is no law greater than the enactment by a Supreme Authority,
and where the Supreme Authority’s enactment of a Constitution forms the basis of fundamental Law,
and where that fundamental Law is enacted from the Supreme Authority it is said to be lawful,
and where any Lawful enactment by a Supreme Authority is said to be Lawfully Enacted,
and where that Supreme Authority is enacted Lawfully it is said to be a Supreme Lawful Authority,
that Free People, unopposed, are said to be a Supreme Lawful Authority.
For a Supreme Lawful Authority to exist it must be unopposed,
and where there are none who can claim a higher authority than a Supreme Lawful Authority,
that Free People are a Supreme Lawful Authority whose Will is unopposed.
Where if any Authority or Force attempts to oppose a Supreme Lawful Authority,
and where Authority is defined as the power to enforce laws, exact obedience, command, determine, or judge,
and where Force is defined as power made operative against resistance,
and where that Authority or Force is said to create or enact Opposition towards the Supreme Lawful Authority,
and where that Opposition is said to Conflict or Resist the Supreme Lawful Authority,
that Opposition is said to be in Conflict with the Supreme Lawful Authority.
Where that Opposition in Conflict is said to be a Foreign Authority or Force,
and where War is defined as any open, armed, or prolonged Conflict,
and where that Authority or Force so engaged under that Definition of War,
that Foreign Authority or Force is in opposition to the Supreme Lawful Authority and has made engagements said to be Acts of War.
Where that Opposition in Conflict is said to be a Domestic Authority or Force,
and where Domestic is defined as relating to a person’s own country,
and where a Domestic Authority is defined as the power to enforce laws, exact obedience, command, determine, or judge by any domestic person or body that is not the Supreme Lawful Authority,
and where that Domestic Authority or Force did take an Oath to uphold and defend the Constitution of the United States, which is the written Will of the Supreme Lawful Authority,
and where the Enforcement of Laws which Opposes the Supreme Lawful Authority is Unlawful,
and where the Exacting of Obedience which Opposes the Supreme Lawful Authority is Unlawful,
and where the Command of any person or body which Opposes the Supreme Lawful Authority is Unlawful,
and where the Determination or Interpretation of any matter which Opposes the Supreme Lawful Authority is Unlawful,
and where the Judgment of any matter which Opposes the Supreme Lawful Authority is Unlawful,
and where a Domestic Force in Opposition is defined as any domestic power made operative against the Supreme Lawful Authority,
and where that Domestic Authority or Force engaged in Opposition against the Supreme Lawful Authority,
and where Opposition is defined as the act of Opposing or Resisting,
and where Opposition can be said to be a Conflict against the Will of the Supreme Lawful Authority without due process,
and where Treason is defined by the Supreme Lawful Authority under the US Constitution, Article III, Section 3,
and where Treason is so defined as: “only in levying War against the United States, or in adhering to their Enemies, giving them Aid and Comfort,”
and where a Domestic Authority or Force has engaged in War or Adherence against the written Will of the Supreme Lawful Authority,
that Domestic Authority or Force is Guilty in the Act of Treason or the Conspiracy to Commit thereof.
Conclusion
Reality
We have for ourselves a state of affairs in which, I think everyone can agree, the Constitution of the United States and the Laws of the Nation are not in alignment with each other, made wholly worse by broken legal interpretations and judgments, precedents without presence, and minor subversions made legal in momentary crisis or panic which are otherwise unrepealed or reexamined. As a circumstance, all of these are not entirely critical to the nation's functioning, as the Courts and Legislature can step into periods of crisis with even more interpretations and adjustments to relieve the previous interpretations and adjustments. Yet, this is not a sustainable state of affairs. Eventually, there must be an arrest of either the Higher Authority, which is that Free People, or the illogic of the applications of the millions of laws existing will lead to a near complete arrest of the system in such that it fails to function across vast sectors and processes until the entire system itself must be reconstructed and reframed - which I believe this is the subversive intention of our collective enemies, whether through incompetence or outright nefarious intentions.
Principles
Unlike any other system of government across the world, I am of the firm thinking that the Constitution is uniquely capable of addressing these and many other problems without any innocent or guilty bloodshed from revolution or war. Where that is all made impossible, revolution and revolt are inevitable across an unknown timeline, to be sure. Though given the Union is one of Consent, it is highly likely some State or group of States who promise to secure for themselves defense against the remaining States, and the Federal apparatus will at some point pursue that end. To wit, the majority of US Military Forces, National Guard, and Militias are homed within a minority of States; it can be said they have the Forces, but they only lack the Political Will and Capital to bring about that circumstance—a critical differentiation from the previous American Civil War. Though the Federal apparatus is attempting, and has for some time now, to construct a moral and socially malignant counter-narrative to those future arguments from secessionists, these social framing devices appear to be failing or are entirely dead on arrival within the press from the perspective of the public.
Reality
What the Logic chain doesn’t do is apply morality or justice. It can be said that these are the devices of lawyers and judges who dance across penned judgments within the realm of interpretation through devices such as nature, meaning, intent, tenor, and even precedent. Anybody or person permitted to interpret the Constitution and, by extension, its Will and exact meaning and thereby the Supreme Lawful Authority from whence its power derives is to grant that person or body an authority higher than the highest authority. To read into a very clear document all sorts of meanings and intentions that are not present by argument, plea, or ambitious plotting is to alter the document without Constitutional Ratification as the Constitution, and therefore, the Supreme Lawful Authority, requires.
Principles
This, of course, brings us to the issue of interpretation itself, as the American system has been relegated to the judicial bodies. Where the Constitution is quite clear, they have made all sorts of interpretations of those texts, and where the Constitution is quite vague, they have done the same and worse. Where with all other provisions of the Constitution which are considered inconvenient, the courts have simply ignored these, ruled they cannot be ruled upon as its a matter of Politics, or denied anyone with any claim the ability to have their claim heard in court and a decision rendered to its validity by various devices such as ‘Standing’ and ‘Injury’. All of which, of course, can be repaired.
Reality
How ridiculous it is that the very branch of government charged with the guardianship of the Constitution, and therein bound by it, has no scope and powers assigned under that founding document and, therefore, must rely on theory and interpersonal judgment to proceed and manage its self, by its discretion, from the highest authority, and to the countenance of only the language prescribed by law, drafted by its practitioners, and disseminated by its proponents and benefactors.
One could say he who controls the language of the courts enjoys the voice and Will of the People.
Reality
Breaking the Logic Chain requires more than a semantical argument about particular definitions or intents, as these can be repaired, and thus, the chain is still whole. Instead, the chain must be broken before the determination of Supreme Lawful Authority. Which is to say, if the American People are Free, but they are not Supreme, then this would suppose a higher Supremacy of another sort that subjugates that People. This isn’t to say those people aren’t then Free, as many Monarchies and Democracies can be said to be Free Nations and Free People. Still, those people do not have, definitionally, Supreme Lawful Authority.
Principles
Where a nation is not secular and therefore places above themselves a Supreme Authority within God(s) that they enshrine within Law, this itself creates a lot of complications. The most notable of complications of placing the Supreme within a God or deity is that the entire Authority chain itself can thus be interpreted along the lines of whatever ‘God’ is or says, thus opening the whole interpretation of any preceding documents or Constitutions under the Interpretation of Priests instead of Judges, or some combination of both as that system is so framed within itself, as it moves across time.
Better a Judge of Law than a Judge of Spirit.
Reality
As this article is not a complete examination and investigation of those issues, among many others, for the sake of some semblance of brevity and scope, we will refrain from their investigation and consideration for the moment. Instead, I’m submitting a foundational article that can be examined, investigated, repealed, and reformed to better ground our consideration within the best possible foundations of logic and the history of these matters as we can best understand them.
To begin anything one must first make a start of it.
Principles
What I am sure of is that the Judicial Branch, as it relates to Article III of the Constitution, must be completed. The Powers and Framing of the Judiciary must be built, tested, and ratified into the Constitution and from which the repairs to the Union, the Federal apparatus, the Constitution, the Trust and Confidence of the People of the United States, and its allies, thusly restored.
The Supreme Court must return to the basement of Congress and fulfill its duty and purpose to the Republic as the People’s Court of Last Resort.
Reality
For if the Republic fails, all of humanity will lose far more than just one Nation, or one System, or one Republic.
The Great Experiment, which is the American Republic, grounded within reason and the highest principles, if lost, will take to its grave far more than we could ever account for in a lifetime.
As always,
Farewell, and Good Luck.
-Dark Philosopher
Article Updates
None.
Links:
1789 Judicial Act
https://www.archives.gov/milestone-documents/federal-judiciary-act
William Marbury v. James Madison
https://www.law.cornell.edu/supremecourt/text/5/137
History
https://www.history.com/this-day-in-history/the-first-supreme-court
https://www.supremecourt.gov/about/buildinghistory.aspx
https://www.encyclopedia.com/history/news-wires-white-papers-and-books/development-judicial-power
11th Amendment Controversy
https://constitutioncenter.org/the-constitution/amendments/amendment-xi/interpretations/133
4th Chief Justice of the Supreme Court
https://en.wikipedia.org/wiki/John_Marshall
Common Law Doctrine
https://en.wikipedia.org/wiki/Common_law
The Federalist Papers (Background)
https://en.wikipedia.org/wiki/The_Federalist_Papers
The Federalist Papers (Full Text)
https://guides.loc.gov/federalist-papers/full-text
Habeas Corpus
https://en.wikipedia.org/wiki/Assize_of_Clarendon
https://en.wikipedia.org/wiki/Habeas_corpus
Constitution, Building, and Old Chambers in the Capital
https://www.law.cornell.edu/constitution/articleiii