Thursday, February 24, 2005
The Tyranny of the Majority
"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."
— Chief Justice John Marshall
Activist Judges, Midnight Appointments, the Power of the Presidency. February 24th is witching day. Man I gotta tell ya the history of the Supreme Court is sexy sexy sexy.
First let's just establish that I am not a lawyer so this is all based on my reading. In fact please don't picture me as a lawyer I don't need you all thinking even worse of me (I kid! I kid!).
William Marbury was a member of the Federalist Party from Maryland.
James Madison, at this point in the story at least, is the Secretary of State, in a few short years he would become the fourth POTUS. He proposed the first 10 amendments to the Constitution, AKA the Bill of Rights.
Couple more guys are involved...
Thomas Jefferson (a Jeffersonian Republican), the FIRST Secretary of State, the SECOND Vice President and the THIRD President of the US (for you frat boys and sorority girls - check out the "Flat Hat Club" Jefferson founded it).
John Adams first vice president, second POTUS, his son John Quincy, 6th POTUS
John Marshall (pictured above) Secretary of State, under Adams AND Chief Justice at the same TIME.
Ok so Adams was Jefferson's boss while Marshall was Adams' Secretary of State, THEN Jefferson became President, Marshall became Chief Justice and Madison became Secretary of State. Got that? It gets worse Jefferson and Adams where on opposing sides the Federalist vs The Jeffersonian Republicans. To make it clear how opposite... the Jeffersonian Republicans where an evolution of the Anti-Federalist party, I think that is pretty clear. Even better Marshall is Jefferson's COUSIN...
When Adams took over from Washington he was pissed because there where no judgeships to give out to people, so at the end of his term, at the last minute after Jefferson had been elected, but before Jefferson was in office Adams and his party controlled Congress created 42 new judgeships and filled them. Marbury was one of the last approved and apparently didn't get his commission before noon when Jefferson became President, which meant that Jefferson's new Secretary of State, Madison had to deliver it to him, which he refused to do setting up:
I can't decide if this is all better drama than deciding if the local DA should care who is buggering who in the privacy of their own bedroom, but it seems like everyone is in bed with or trying to screw everyone else and the portraits are really cool.
In the end Marshall, on February 24, 1803 produced this:
"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.
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 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?
"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."
-- Chief Justice Marshall
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. [The] government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
-- Chief Justice Marshall
If you are having trouble reading that... it basically says, based on the Constitution of the United States, which only the Supreme Court has the right to interpret, the Supreme Court will decide if the laws passed by Congress are consistent with the constitution. Or... the Supreme Court is an equal partner to the Legislative and Excutive branch. In short Marshall establishes the precedent of "Judicial Review" used by activist judges everywhere to this day... This is big stuff, you may want to go read the Federalist Papers #78 for some more insight, it too was authored by these same guys.
(Appointing Judges for life) In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.
Federalist Papers #78
Marbury v Madison is the cornerstone on which court has expanded individual civil rights.
For a more, some would say, "academic" or "accurate" interpretation check out The 200th Anniversary of Marbury v. Madison: The Reasons We Should Still Care About the Decision, and The Lingering Questions It Left Behind
The Court would not declare another act of Congress unconstitutional until 1857 in the Dred Scot case (hey didn't Bush just mention Dred Scot?)...
Hey man what about the sexy sexy sexy part... oh yeah I almost forgot.
Close your eyes... now imagine... damn it this isn't going to work open your eyes, you'll just have to do this with your eyes open. Ok first imagine an outhouse just outside Lynchburg. Now imagine Jerry Falwell, you know the founder of the "Moral Majority", the guy gave us this great insight into the cause of 9/11:
...throwing God out successfully with the help of the federal court system, throwing God out of the public square, out of the schools. The abortionists have got to bear some burden for this because God will not be mocked. And when we destroy 40 million little innocent babies, we make God mad. I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People for the American Way—all of them who have tried to secularize America—I point the finger in their face and say "you helped this happen."
9/13/2001, Jerry Falwell
Still can't picture him? This might help:
Ok, so to review, we got an outhouse and Jerry. Now, throw in Jerry's mom, I can't really help you there. Outhouse, Jerry, Jerry's mom. Now imagine Jerry drunk having incestuous relations with Jerry's mom in the outhouse... but wait there is more!! Now imagine hiring someone to write up your sick fantasy world and publish it in a national magazine. If I was Jerry, I would be pretty pissed at you right now, and in fact Jerry was really pissed, at Larry Flint, publisher of Hustler Magazine.
Personally in my imaginary world I don't get much past the outhouse, Jerry and Mom stage, but clearly there are people out there with better imaginations than me.
One more quick trip back to imaginary land. Imagine a President or Congressman actually defending Larry Flint at this point. Yeah I came up with a blank too. Not to worry though... because on February 24, 1988 the Supreme Court of the United States decided 8-0, for the perv, in Hustler Magazine, Inc. et al. v. Jerry Falwell... Tyranny of the (Moral) Majority vanquished again!!! Hazzah!
- posted by Anonymous @ Thursday, February 24, 2005
Comments:
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Not to be a stickler here, but, within the context of the founding the Tyranny of the Majority has a very specific meaning which has nothing to do with this post.
That, and, Federalist 78 was written by Alexander Hamilton, not any of the fellows mentioned in this piece.
Sorry, couldn't help myself, since I am a foundation nut.
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That, and, Federalist 78 was written by Alexander Hamilton, not any of the fellows mentioned in this piece.
Sorry, couldn't help myself, since I am a foundation nut.
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