Thursday, February 21, 2008

"John Marshall Checkmated Thomas Jefferson"

(APPROVED by Bubbanius).

Legal hacks love the early American case of Marbury vs. Madison: In M. vs. M., John Marshall, the Tony Scalia of the American Revolution finally flexed his Federalist (aka Tory) muscles, and gave SCOTUS some real power. We are not attorneys, and not overly interested in the finer details of the case (it's rather murky), yet it offers as PoMo's term it, "richly suggestive" entailments or something.


"To give up, in the face of anomalies, Marbury v. Madison...would not cause the same epistemic wrench as giving up the proposition that 2 + 2 = 4 or that all men are mortal." (Richard Posner)

The Court, led by Marshall, good episscopalian, Rev. war hero, and businessman, more or less decided that the Court would be allowed to judge legislation: this is now termed Judicial Review. That sort of Judicial power was NOT clearly outlined in the Constitution, however. The Court ruled an earlier law (passed by Congress) which appeared to award the court the power to grant writs of “mandamus” (a type of appointment right--which Marbury was seeking) was mistaken: so in effect, Marshall, Federalist scumbag (sort of statist republican, if not monarchists), used this petty case to establish the power of the SCOTUS to judge legislation, and to decide whether ANY laws were unconstitutional.

Thus, years later, Judges now may cite M. vs. M when they want to overturn some legislation they don't care for, and say it's unconstitutional (even dimwits like Bubbanius might figure out the problems with that, after a few days, perhaps: a few years ago, the SCOTUS ruled the medicinal pot initatives voted in by thousands were all void (unconstitutional), and put MedPot back on controlled substances list, and have that right per Marbury (and other cases too)).

Yes, Contingencies Fans, Judicial Review could result in "good" in some cases, but the net effect of Marshall's decision (JM hardly some progressive) was to centralize power in the Judiciary, and to remove power from the legislative branch: it's an override, really. American Federalism, it should be noted, was not without intellectual force--but the important aspects stem from Madison (one could say the Constitution itself), rather than from Hamilton (or the judiciary and Marshall's schemes).

Naive liberals often quote M. vs M. as proof of rule by law over rule by men, but it’s really Rule by Judge, not rule by law. Jefferson later wrote some interesting responses to M vs. M (it wasn’t that big of a deal at the time—only later cited as precedent), and one should note his authentic Democratic spirit in his contra-judicial writings: TJ’s mind--not as provincial or sentimental as some might hold--- remains the secular core of the American experiment (yes, TJ was not without character flaws as well: Bon Soir Mlle. Hemmings!).

TJ/Marbury

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

"boni judicis est ampliare jurisdictionem". They would prefer Omni-jurisdictionem, and Marshall's Marbury decision went a long ways towards justifying the American judicial monarchy (ah wager Lysander Spooner wrote something on this as well). Marshall did not checkmate TJ: he checkmated democracy (or at least serious check). Posner might be on the money (though like most in judiciary he waffles, often).

3 comments:

J said...

Hey Max, if read this, listen up:

You should be aware of your psychopathic pal's great intellectual and indeed ethical failings.

One, he routinely accuses, in his usual bitchy-snitch style, all sorts of people of crimes for which they have not been convicted (in fact, that is defamation, and libel in old terms).

Even in terms of Due Process, evil GOPers with the Black Hats are entitled to a day in court (or to congressional investigations, which even the WhiteHatoCrats have not pushed for). Karl Rove was appointed by executive power, perfectly legal. He seems pretty sinister to the Hysteriacrats. Maybe he is. He has NOT however been convicted of any wrongdoing.

Indeed, were Rove (or one of his lawyers) to see the BS spouted by Bb, he could probably press charges for libel or defamation (you should be careful, since you'd probably be called in to). Or even possibly terrorist-related acts.

Bb uses the same naive, irrational KGB-lite approach to about every political issue du jour, as with his spam of the Budowsky thing. The AIM people are all about objectivity: itself anathema in most leftist blogs. Kincaid could conceivably press charges on Budowsky for insinuating that he lied about Obama's red connections, etc. You keep forgetting what accuracy in media entails (and indeed objective reporting entails). Be sure AIM would not approve of Bitch-Ron's spam.

There have been some court cases involving psychopathic bloggers such as Bb, who simply does not know what objective, fact-based writing consists of, and spew out baseless accusations day after day (he's not a journalist , nor investigator, nor a cop (though he seems to have a Walter Middy like fantasy that he is). His response to my post on Marbury vs Madison was itself nearly a terrorist threat (and wrong, since he doesn't even realize what Jefferson's concerns were, and ended up defending arch-conservative Marshall. Hah)

You might keep that in mind.

Max said...

"Hey Max, if read this, listen up:"

By the dramatic lead in I thought I might hear something new. Disappointing.

J said...

Yes, it's fine and dandy for your idiotic buddy to threaten me, harrass me (he's sent probably 6 psychotic rants today), lie and defame, deny the Constitution, misconstrue writers (Kincaid, who has been informed about his spam), and in general mock reason as a whole.

No biggy, McGangsta, unless it was happening to you.

I suggest you read it again carefully, McHero.

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