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For a lot of people, there's a lot of misunderstanding about what's really at stake with the recent showdown between Congress and the federal courts.  While on the surface it may have seemed to be "just about Terri Schiavo," I believe that it was about far more than that, and both DeLay's comments about retribution and even more, Cornyn's nuttiness about violence against judges, clearly show this.

With pending judicial nominations being held up by a filibuster, and lots of flip talk about the "nuclear option" being employed to end filibusters on judicial nominations, it's important to realize what's really at stake here -- the viability of the federal (and state) courts as an outlet for redress of grievances, both private and public.  The current Republican power grab (and yes, that's what it is) is about seizing direct control of the courts and closing off this outlet of redress.  It's an assault on the whole notion of judicial review, a term you may have seen thrown around a lot lately.

OK, judicial review.  What's that mean?  Excellent question.  Let's go through it on the flip.

Judicial review is the legal principle that makes the courts one of the three co-equal branches of government.  It dates back primarily to an early Supreme Court case called Marbury v. Madison, decided in 1803 and written by Chief Justice John Marshall, who was Chief Justice from 1801 to 1835.

Yeah, yeah, blah blah blah, lawyer talk.  What was the case about?

The case was a pretty simple one.  Marbury and several other men had been named as justices of the peace in the District of Columbia by President John Adams in the waning days of his presidency in 1800.  The Senate had confirmed these nominations.  The actual commissions, however, had not been delivered by the Secretary of State by the time the new administration of Thomas Jefferson came into office.  The new Secretary of State, James Madison (yes, that guy) refused to deliver the commissions and the new justices of the peace sued.

Pretty simple, huh?  The result of the case was that the justices of the peace were entitled to their commissions.  But Chief Justice Marshall went a lot further.  He used this case as a vehicle to discuss the role of the courts in what was still a very new constitutional system, only 11 years old.

Marshall's questions were simple:  (1) If a law conflicts with the constitution, which shall prevail?  (2) What is the role of the judiciary in the new constitutional system?  Marshall then proceeded to answer these questions:

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 exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

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

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

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

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

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

This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

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.

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.

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.

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.

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.
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 as pleasure.

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, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the constitution.

Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read, or to obey?

There are many other parts of the constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any state." Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law.

The constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

"No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."  Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.

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

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words, "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States."

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

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

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

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

Yeah, sure, lawyer, give us a long quote from a 202 year old case, I'm falling asleep.  What does it mean?

One -- Marshall is saying that the Constitution is the supreme law of the land, and that in carrying out their respective functions, all three branches of government must follow the Constitution.

Two -- the courts are the exclusive branch of government with the responsibility of interpreting the law.  Let me repeat the most important phrase in the whole opinion -- "It is emphatically the province and duty of the judicial department to say what the law is."  Congress writes laws, the President carries them out.  And the Supreme Court, ultimately, decides what they mean.  Not Congress.  Not the President.  The Court.  Congress can change the law, and the President can change the way he executes the law.  But the Supreme Court decides what the law means.

Three -- laws inconsistent with the Constitution shall not be enforced by the courts.  The Constitution is the Supreme Law of the Land, and normal legislative acts must give way to the constitution where the two are in conflict.

These principles may seem obvious today, but in 1803 it was a big deal.  Not every democratic government works this way -- in many systems, the courts are purely secondary to a parliamentary or executive branch of government.  Even in England, the idea of judicial review is much more modern and much more tenuous than that established here.  The notion of judicial review is responsible for virtually every major Supreme Court case establishing individual rights of the last century.

This case was the Supreme Court's assertion of its role as a co-equal branch of government.  While initially it was often ignored by the President (most famously, by Andrew Jackson after the Court, again through Chief Justice Marshall, ruled against the government's forced movement of the Cherokee Indians from Georgia and the Carolinas), it is the basis of the fundamental respect that Americans have for the decisions of the Supreme Court.  Even a decision as controversial as Brown v. Board of Education, while opposed and delayed and evaded, is still regarded as the "law of the land."

How strong is the notion of judicial review in the eyes of the Supreme Court?  So much so that 200 years later, every sitting justice of the Supreme Court has invoked the central language of Marbury v. Madison in at least one opinion that I found in a cursory review.  Most recently, Justice Scalia quoted Marbury v. Madison in 2004.  Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769 (2004).  Justice Kennedy did the same in Legal Services Corp. v. Velazquez, 531 U.S. 533, 545, 121 S.Ct. 1043 (2001).  Justice Stevens, in dissent in everyone's favorite case, Bush v. Gore, 531 U.S. 98, 128, 121 S.Ct. 525 (2000), also cited Marbury v. Madison.  In his unanimous opinion in another infamous case, Clinton v. Jones, 520 U.S. 681, 117 S.Ct. 1636 (1997), Stevens did the same.  Justice Souter, concurring with Justice Ginsburg, cited Marbury in Miller v. French, 530 U.S. 327, 353 n.3, 120 S.Ct. 2246 (2000).  Ditto Justice Rehnquist in U.S. v. Lopez, 514 U.S. 549, 566, 115 S.Ct. 1624 (1995).  Even Justice Thomas got into the act in Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 106-107, 113 S.Ct. 2510 (1993).  Justice O'Connor has never had occasion to cite the specific language about judicial review, but she has cited Marbury for the proposition that laws repugnant to the Constitution shall not be enforced by the courts.  Mississippi University for Women v. Hogan, 458 U.S. 718, 733, 102 S.Ct. 3331 (1982).  Only the newest Justice, Breyer, appears not to have invoked Marbury v. Madison in an opinion, although I have little doubt that he would apply it if it were before him.

In short, judicial review is the bedrock principle upon which the independence of the judicial branch of government exists.  And Republicans hate the fact that, despite controlling the legislative and executive branches of government, they don't really control the judiciary.  As conservative as it can be at times, the judicial branch of government jealously guards its own prerogatives before partisan ideology.  When DeLay and Cornyn attack "activist judges," they are attacking the notion of judicial review, they are attacking the very foundation of the third branch of government, and they are seeking to take control of it for partisan purposes in a way that has never, in over 200 years, ever occurred or really been attempted.  

The arrogance and breadth of this power grab is truly stunning.  Schiavo, class actions, tort reform, the gutting of habeas corpus review, the limiting of court power to act, all of these actions are an attack on the most fundamental notions of our system of government.  Separation of powers.  Judicial review.  Checks and balances.  To which Republicans say, "to hell with all that.  We want to control EVERYTHING."

So when you think about DeLay and Cornyn, Schiavo and class actions, tort reform and habeas corpus, it's not about lawyers, or prisoners, or any particular case, it's about power.  Naked power that cares not one whit for tradition, or stability, or fundamental principles of limited government and separation of powers that have been in place for over 200 years.  It's the complete antithesis of the word "conservative."  It's about undoing Marbury v. Madison, and taking over complete power by the legislature, as warned against by Chief Justice Marshall.

If that doesn't appall you, you're either a Republican or you're not paying attention.  It's about what kind of constitutional system we're going to have, and who gets to define that system.  What rights you have under the Constitution would be determined not by the courts, but by the Congress.  If that doesn't scare you, you're on the wrong blog.  This fight, and it will be a fight to the death, is about the rights of everyone, you, me, and the guy down the street.  So when you hear about the nuclear option and judicial nominations, be afraid.  Stand up, be counted, and do whatever you have to do to make sure that this destruction of our system of government does not happen.

Originally posted to jsmdlawyer on Wed Apr 06, 2005 at 01:53 PM PDT.

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Comment Preferences

  •  you should be a Con Law prof (4.00)
    jsmd, very well written, excellent explanation, and i agree with your summary conclusion.  I knew from the moment schiavo was publicized that it was about the judiciary, and everything else is a smoke screen, probably even social security.

    What do you mean? An African or European swallow?

    by Sargent Pepper on Wed Apr 06, 2005 at 01:57:01 PM PDT

  •  Be afraid (3.99)
    Be very afraid.  Even in his own death throes, Tom DeLay is still after the notion of separation of powers.  He wants to turn this government into a legislative tyranny.  Limited government?  Not for DeLay and his buddies.  And if you don't like it, John Cornyn has a bomb he'd like to explode under your car.

    A day may come when the courage of men fails, when we forsake our friends and break all bonds of fellowship. But it is not this day -- this day we fight

    by jsmdlawyer on Wed Apr 06, 2005 at 02:03:08 PM PDT

    •  the arrogance of their power has (4.00)
      completely corrupted them.  one would think that even the reddest of the red would be taken aback by their blatant attempt to usurp power and trample on the constitution.

      What do you mean? An African or European swallow?

      by Sargent Pepper on Wed Apr 06, 2005 at 02:05:24 PM PDT

      [ Parent ]

      •  it's also left them (none)
        blind and stupid (well, more than they were before). Like they don't think the pendulum is going to swing the other way. Or worse, like they think they can stop it.
        •  Yeah, it's almost as if (4.00)
          they don't think the pendulum is going to swing back. They seem convinced cough*electronic voting*cough that the public will never throw them out. I just don't understand.

          The polls don't tell us how a candidate is doing, they tell us how the media is doing. And Diebold tells us who won.

          by Thumb on Wed Apr 06, 2005 at 04:54:20 PM PDT

          [ Parent ]

    •  Scary Stuff (4.00)
      A Texas Congressman is touting a Constitutional amendment that would require state legislatures to approve sitting federal court judges every ten years.  Crackpot schemes like this and the various schemes to deprive federal district courts of jurisdiction over a wide variety of cases make this a very scary time.  
    •  That's not it though... (none)
      Yes, Delay is after power, but I don't think he cares which branch wields it as long as the results cater to him and his cronies.

      He sure as hell wouldn't be pushing this agenda of having courts defer to Congress if there was a conservative majority striking down liberal legislation a la the SCOTUS in the early stages of the New Deal.

      It's not ideological at all in the sense of realigning a new balance among branches; he's trying to grab power while he thinks the grabbing is good.

    •  Gawd, JSMD... (none)
      ...that whole huge quote from Marbury just about put me to sleep...and I'm a law student...

      But the point is an excellent one, of course, and needs to be made.

      Piss off Frank Luntz: don't use Republican issue frames like "Social Security crisis."

      by DC Pol Sci on Wed Apr 06, 2005 at 05:36:06 PM PDT

      [ Parent ]

    •  I'm jumpy (4.00)
      for sure.  Then again, the great thing about DeLay and his cronies is thaat they are such thugs about it.  Had they been more circumspect (stayed out of Schiavo, not threatened judges on the floor of the Senate), they would be a lot further along in their goal.  But just like cockroaches, they inadvertantly turned on the kitchen light, and now they gotta run. But the possible "nuclear option" is huge.  So we must get in line behind Reid, as publicly as we can.

      I've lived with the present Supremes for too long, and have never been a fan.  But this blatantly naked power grab by certain members of Congress, coupled with threats, is having an unexpected result.  Every judge I know is MAD.  They were mad about Schiavo, so they put Congress back in their place.  And they are getting madder. And there's more judges than there are members of Congress, thank God. And they will still be on the bench after Bushco. is gone.

      We do not rent rooms to Republicans.

      by Mary Julia on Wed Apr 06, 2005 at 06:43:58 PM PDT

      [ Parent ]

  •  Excellent analyses! (4.00)
    I think this power grab, if clearly explained like you just did, would even appall many Republicans who have respect for the Constitution and don't like the hijacking of their party by the extreme right wing.

    Democrats give you the Bill of Rights; Republicans sell you a bill of goods!

    by barbwires on Wed Apr 06, 2005 at 02:05:54 PM PDT

    •  Well if they're appalled (4.00)
      they're being appalled awfully quietly.  I have yet to hear anyone break ranks on the right and call out DeLay or Cornyn for their ridiculous comments.

      A day may come when the courage of men fails, when we forsake our friends and break all bonds of fellowship. But it is not this day -- this day we fight

      by jsmdlawyer on Wed Apr 06, 2005 at 02:20:33 PM PDT

      [ Parent ]

      •  I dunno... (4.00)
        Con Law 101 was my first class on the first day of law school. And I was the class jerk that actually raised his hand to explain the holding. We probably spent at least 3 days on it...and a good chunk of the class was not sold on the legitimacy of Marshall's conclusions or the notion of judicial review in general.

        And, if I remember correctly, it was a big issue in the Bork confirmation hearings. Judge Bork didn't seem to think that the Court really made the correct decision in Marbury.  And I think we should not underestimate the amount of support for the notion that judicial review is not, in fact, a legitimate power of the courts. After many times in the last two months have you heard of "judicial tyranny," and judges who think "they are above the will of the people"...?  The support is there.  The right wing doesn't really like Marbury, and they can cloak the debate in very populist terms, because, fundamentally, judicial review IS un-democratic.  Now, of course, the entire Bill of Rights is "undemocratic" in the sense that it preserves certain rights and liberties from the will of the majority, but you can make a nice soundbite out of the "tyranny of the minority," or the "will of the people" being held hostage by judges.

        People understand "majority rule." Many don't, however, understand that the country is not a pure democracy and was never intended as such.  "Democracy" is merely a process, but our governing laws are not merely procedural...they are substantive as well. Republicans may feel they are riding a crest of popular support now, but stripping away judicial review to abrogate power under the guise of "the will of the majority" WILL hurt them when their tide ebbs.  I guess they don't care, though. Whatever lets them run amok now.

        •  My experience.. (none)
          My own con law professor described us as "living in a judicial dictatorship." But, he never designated this as a BAD thing. Frequently, people seem to fail to realize that simple "majority rule" with no judicial review for some kind of "fairness" would probably set them at some disadvantage. Even with the equal protection clause in place, legislatures still passed laws indicating, for example, that women could not practice law. That's at least 51% of the population that should realize that "majority rule" (which, realistically, means "rule by rich white men") with no judicial review to try to introduce sensibility into our national situation would end in them being "kept down" in some way, and no recourse to try to improve their situation.
        •  The other thing (4.00)
          people don't understand is that "majority rules" is not democratic.  Democratic is "majority governs" and the voice, will and interests of the minority are to be included and protected. Governing and ruling aren't the same.  

          The judiciary rules in all instances.

          In a democratic society some are guilty, but all are responsible. -Rabbi Abraham Joshua Heschel

          by a gilas girl on Thu Apr 07, 2005 at 07:10:22 AM PDT

          [ Parent ]

      •  I have the feeling... (none)
        ...they are too preoccupied with being knee-jerk anti-Democratic party to realize that the current excesses of this Administration are disastrous for all Americans irrespective of party affiliation.

        I wonder how bad the situation needs to get before the deadheads realize that when Mr. Average Joe Democrat gets screwed by Tort Reform, Bankruptcy Act, Patriot Act, No Child Left Behind Act, the destruction of SS, Medicare and Medicaid, advocating violence against Judges et all, Mr. Average Joe Republican gets screwed as well.

        I hope that happens before it is too late to do anything about it.

  •  Extremely well done (4.00)
    I have only one minor dissenting point.  Near the end, you indicate that if one is not appalled by the current machinations of the idiots, then one must be a Republican or not paying attention.  I think that if one were to poll most run-of-the-mill Republicans, and certainly Republican lawyers, you would find that a significant number of them are as disgusted with these antics as we are.

    Second point: I have worked on constitutional and legal reform projects in a number of countries, mostly in the former Soviet Union, and have come to really understand the beauty of the system that was put in place in the US over two centuries ago.  The framers were beyond visionary in their the systems that they assembled.  

    Working in countries where the tradition has been that the judiciary dances to the tune of the executive makes me truly appreciate the safeguards that are built into our system.

    •  thanks for sharing your experience (none)
      and insight.

      What do you mean? An African or European swallow?

      by Sargent Pepper on Wed Apr 06, 2005 at 02:08:55 PM PDT

      [ Parent ]

    •  I think (4.00)
      ... that we should be careful not to make everything an us vs. Republicans issue.  Once you make it us vs. Republicans, you've drawn the lines for them, and they will pick the Republican side.  The idea doesn't get past the partisan filter.

      It's how the Republican think tanks work, they tailor their message for their audience.  For a Republican audience, they can be as overtly partisan as they want, for the general audience, they try not to provide partisan hooks.

    •  not exactly a dissent (4.00)
      You have a problem not with what jsmdlawyer said, but the converse of it. The statement "if A then B" does not at all logically imply that "if B then A", and I don't think he meant it to be interpreted that way.

      He said "If that doesn't appall you, you're either a Republican or you're not paying attention." Which is a fair assertion. Either you are a brownshirt Republican who thinks stomping all over the judicial branch is a great idea, and they definitely do exist, or you're not aware of the seriousness of it.

      The converse -- "If you're a Republican or not paying attention, then that doesn't appall you" -- is demonstrably not true. Many Republicans ARE appalled at what's happened to their party and have been that way even since before the election. Just apparently not enough of them.

      Good comment regardless, but I wanted to point that out. :-)

      The Americans will always do the right thing... after they've exhausted all the alternatives. - Sir Winston Churchill

      by drewthaler on Wed Apr 06, 2005 at 05:18:03 PM PDT

      [ Parent ]

    •  "Beyond Visionary" is precisely correct. (none)
      The feature of our constitutional system making the federal courts an autonomous, [almost] completely independent, and co-equal branch with [virtually] absolute and final authority to interpret the Constitution and pass on the constitutionality / legality of legislative acts, is what makes us a Nation of Laws.

      Take it away or dilute it and we are literally at the brink of a fascist dictatorship.

      In my opinion as an attorney, a nominal constitutional scholar, and a patriotic citizen who has for decades studied our political and judicial history, there is clearly no greater danger to democracy than this issue of the continued independence and co-equal status of the federal judiciary.

  •  interesting article about German (4.00)
    law can be found here >scroll past graphics for commentary about the Nuremberg Justice Trials.

    "Many judges appointed before the Nazi rise to power--because of the economic and social circles that judges were drawn from--had views that were quite compatible with the Nazi party.  A few Jewish judges sat on the bench when the Nazis assumed power--but only a very few.  A 1933 law removed those few Jewish judges from officee."

    "Two features of German law combined to facilitate the Nazi's evil schemes.  The first was that German law, unlike the law of the United States and many other nations, lacked "higher law" (constitutional or ethical standards) that might be resorted to by judges to avoid the harsh effects of discriminatory laws adopted by the Nazi regime.  The second difficulty was that there was no separation of powers between the executive and judicial branches of government.  Hitler declared, and the Reichstag agreed, had the power "to intervene in any case."  This was done, legally, through what was called "an extraordinary appeal for nullification of sentence."

    It's not hypocrisy - it's unadulterated evil.

    by wabegg on Wed Apr 06, 2005 at 02:08:28 PM PDT

    •  Byrd's Speech (4.00)
      From Sen. Byrd's speech, quoting historian Alan Bullock:

      Hitler's originality lay in his realization that effective revolutions, in modern conditions, are carried out with, and not against, the power of the State: the correct order of events was first to secure access to that power and then begin his revolution.   Hitler never abandoned the cloak of legality; he recognized the enormous psychological value of having the law on his side.   Instead, he turned the law inside out and made illegality legal.

      It's not democrat v. republican on this one, it's literally freedom vs. tyranny of the majority.  So far they don't have enough votes.  We need to keep it that way.

  •  Bless your lawyerly little heart (4.00)
    I was just thinking I needed to read up on Marbury v Madison, and here you are!!!


    Resistance to tyranny is obedience to God.-Thomas Jefferson
    We are the resistance.

    by boadicea on Wed Apr 06, 2005 at 02:11:57 PM PDT

  •  this diary (4.00)
    made me want to go hang out with my cousin the law prof this weekend and get his perspective on things.  he is a con law expert after all.  maybe i will just have to go visit the rugrats and their dad.

    great diary btw jsmdlawyer.

    Yeah the revolution starts now..So what you doin' standin' around? -Steve Earle

    by juls on Wed Apr 06, 2005 at 02:13:19 PM PDT

  •  jsmdlawyer (4.00)
    Great diary.

    We can make the world a better place by laying them by the heels. -- Sherlock Holmes

    by Carnacki on Wed Apr 06, 2005 at 02:14:57 PM PDT

  •  Just a clarification (4.00)
    Courts only interpret the meaning of statutes if their meaning is ambiguous.  And they look to legislative intent to do so.  But if the meaning is clear, courts are as constrained as the rest of us to apply the law as stated, so long as it's Constitutional.  Without this constraint, I think there would be too much power in the judiciary.
    •  Ambiguity (4.00)
      As a former professor of mine is fond of saying "If the meaning were plain, we wouldn't be here, your Honor."  The meaning is rarely, if ever, clear.  As for always looking at legislative intent, that's not true for new textualists like Scalia.

      The road to hell is paved with Good Intentions.

      by JenAtlanta on Wed Apr 06, 2005 at 02:28:59 PM PDT

      [ Parent ]

      •  Clarity (none)
        Cases heard in court often involve ambiguity, but many issues are decided by law outside the courts. Ambiguity is usually found around the edges of things, and good laws have a broad, clear middle.

        The value of the law is largely in how many cases need never come to court at all. But this is underrated because it is almost invisible.

        Often "the meaning is plain, and so we aren't here, your Honor."

        I support decentralist media: ePluribus. You can too.

        by technopolitical on Wed Apr 06, 2005 at 08:24:49 PM PDT

        [ Parent ]

    •  I think Marshall's point (4.00)
      was that in applying law to facts there is always a level of interpretation.  And that was his genius.  It is the court alone among the three branches which is set up with the mechanism to apply law to facts.  

      and of course, it is the facts and not the law which is causing all the outrage in the schiavo case.  

    •  Well, yes, but (4.00)
      who decides if the statute is ambiguous?  The court does.  If it's not ambiguous, apply the plain meaning.  If it is, figure out the legislative intent, and apply that.  Either way, it's still the prerogative of the court to interpret the law, and apply it.  Your point is about how to interpret and apply it, not whether to do so.

      A day may come when the courage of men fails, when we forsake our friends and break all bonds of fellowship. But it is not this day -- this day we fight

      by jsmdlawyer on Wed Apr 06, 2005 at 02:31:40 PM PDT

      [ Parent ]

    •  the contraint on the judiciary (none)
      is that they have to sit and wait for people to bring disputes to them, and they can generally only rule on the facts presented to them, and they are generally constrained by the text they interpret, the precedent they must apply and the incremental manner in which the common law develops.
    •  I went to a law school (none)
      that delighted in teaching us that the best way to change the law was through the Courts.  So, for God's sake, don't "think like a lawyer".  Think what you want for your client, and frame your argument toward that end.  Get creative.

      Judges are, for the most part, always intrgued with the idea that they can do something they have never done.  That doesn't mean they will DO it. But they are always intrigued by the idea.

      In my mind, you can't put too much power in the judiciary.  It's the only branch of government you can wake up at 2AM (they don't LIKE it, but you can do it).  You can ASK a judge to do just about anything.  It's the judge's decision whether to do it or not.  Law evolves through caselaw, I think, more than it does through legislatures.

      We do not rent rooms to Republicans.

      by Mary Julia on Wed Apr 06, 2005 at 06:53:57 PM PDT

      [ Parent ]

      •  The evolution tends to be (none)
        incremental, which is the way law should evolve. A body of case law builds up and there are varied case branches which the original Statute never thought of. Eventualy, the whole body of case law is examined and sometimes a Model Law is proposed by the ALI or similar group. In the end the Legislature runs it through the experts in their Judiciary Committee, it's debated and then a new, hopefully better Statute is passed into law.

        The basis of all this is that the Judiciary is the one who handles individual cases, nobody else does. The Judiciary says what the law is as it is applied to individual cases and people and situations, often ones no one thought of before. Because of the individual nature the judiciary is the one to protect individuals from abuses of unintended or conflicting laws.

        We have a system to protect us from the tyranny of the majority (often unintended-see Murphy's Law) as much as we have a system of majority rule.

        Here's the tension that the courts are part of protecting us from:

        A thousand men/women are smarter than one man/woman--Uuuhh, excuse me? This is "pure" Democracy-including Majority tyranny.

        One man/woman is smarter than a thousand men/women--Uuuhh, How's that again? This is pure Tyranny-seen from above or below

        That tension why we have to guard Judicial review--to protect the individual, to protect the Judiciary right to handle individual cases.

        Sometimes I wonder whether the world is being run by smart people who are putting us on or by imbeciles who really mean it. - Mark Twain

        by Rolfyboy6 on Wed Apr 06, 2005 at 08:40:53 PM PDT

        [ Parent ]

      •  Pushing the envelope (none)
        In the law school I went to, we had some more conservative professors but most of them were fairly activist.

        It wasn't until that I actually started doing the stuff that I learned how much you need to push the envelope to try to get the result you want.  I always got the impression that, at least in state courts, none of the judges WANTED to do anything new.  To get them to do anything new, you had to argue that they had no choice but to do it, that there was some change in statute, case law or court rule that required that they do what you want.

        Having clerked for a state judge for a few years, my impression was that, since they rarely associate with anyone in the law biz other than other judges, they tended to be concerned with what the others in their peer group were doing and wanted to sort of "fit in."  This led to an inherent conservatism or an adherence to stare decisis depending on how you want to look at it.

  •  Chief Justice John Marshall (4.00)
    sure sounds like an activist judge, defining the balance of powers in constitutional government like that. </wingnut>
    •  he was certainly among the most muscular (none)
    •  Well, now that you mention it... (4.00)
      That's closer to the truth than you might think.

      My nomination for most overlooked fact in Marbury v. Madison -- the Secretary of State who failed to deliver the commission to Marbury: John Marshall, who was serving simultaneously as Secretary of State and Chief Justice of the Supreme Court at the time.

      He later wrote the opinion which, aside from establishing judicial review, doubled as a CYA memo.

    •  In fact, there's a pretty good argument for that. (4.00)
      There's an amazing recap and analysis of Marbury v. Madison in Mark Tushnet's article "Constitutional Hardball" (PDF). Maybe he was "activist":

      Indeed, the question in Marbury was even more refined. The power of the federal courts to enforce constitutional limitations on congressional power was essentially unquestioned when Marbury was decided. Two things were contested, though, and Marbury brought them together. The courts could invalidate congressional legislation when a constitutional question was brought before them in a proper case. So, for example, the courts could refuse to enforce a criminal statute that was, in their view, unconstitutional because, by implicating the courts in enforcement, Congress necessarily acceded to giving the courts the last word on constitutionality. The first contested question was, Where Congress acted on its own, that is, did not call on the courts for assistance in implementing public policy, could the courts somehow find Congress's actions unconstitutional? The second contested question distinguished between Congress and the presidency. Assuming that the courts can hold federal statutes unconstitutional, could they find executive actions taken pursuant to statutory law - that is, actions that were not ultra vires the statutes - but not compelled by statute unlawful and therefore subject to judicial control?

      Jefferson's refusal to deliver Marbury's commission raised both contested questions. In the ordinary course, courts were not involved in delivering or withholding commissions. And, obviously, no statute compelled Jefferson's decision. Marshall played hardball in Marbury by resolving both contested questions in a way that allowed the (Federalist-dominated) courts to be continuing supervisors of the actions taken by the (Jeffersonian-dominated) Congress and presidency. He did so by construing the federal statutes defining the federal courts' jurisdiction to authorize the federal courts to issue writs of mandamus to high executive officials, where the courts concluded that the statutes regulating the officials' actions limited their discretion.

      Marshall's move has a certain brilliance to it. On its face, a mandamus proceeding differs from a criminal prosecution because in the latter the government - the executive, authorized by Congress - comes to the courts and asks for their help, whereas in the former a private party asks the court to help him or her against an executive official. Marshall's move was to assimilate the two cases by saying that in both Congress has authorized someone to ask the courts for help, and having done so allows the courts to supervise what Congress and executive officials have done. Judicial review for constitutionality in appropriate cases was uncontroversial in the early 1800s, but judicial supremacy in constitutional interpretation was. By creating a jurisdictional regime in which private parties could bring federal officials into court, Marshall moved far in the direction of establishing judicial supremacy.

      •  he was an activist (none)
        but when you look at it, he engaged in this intense power grab at a time when many of the framers were still alive.  and you didn't hear them screaming -- this isn't what we meant by the separation of powers.  of course, I am not sure they saw their views on the constitution as so significant -- it was more a thing unto itself.  
        •  Not just alive (none)
          The primary author of the constitution, Madison, was the person who lost in this case. Did he whine or tell Jefferson he could or should ignore the decision? No, Marbury lasted because everyone involved agreed to abide by it. Luckily for us only only Andrew Jackson behaved reprehensibly toward a decision of the Court.

          Too bad we don't have leaders like Jefferson and Madison runnning the country today.

          •  don't you think (none)
            also, that puts a lie to the whole framer's intent argument.  if the framers thought their intent was so important, don't you think they would have spoken up?
            •  Sure (none)
              These guys were trying to fix a problem that they had. The Articles were not a very good constitution and didn't work for the new nation. They had no intention of creating the 'greatest constitution ever' and never thought that they were the greatest founders of all time. It worked out, mostly, as a pretty good constitution, but the failures were catastrophic for this country.
          •  minor quibble (none)
            Jefferson/Madison actually "won" the case in that the court found it had no power to grant the remedy sought by Marbury.  It's amazingly ingenious...Jefferson and Madison couldn't really complain or ignore the decision, because they had gotten exactly what they asked for.
            •  Yes, sorry (none)
              I must try to remember the actual outcomes of old cases and not just brush up on them by reading most of it. It would also help if the Chief Justice actually cared about the outcome of the case for Mr. Marbury or told us what he thought the jurisdiction clause meant.

              After carefully explaining exactly why Marbury was completely right in asking for the commission and had properly been made into a justice of the peace and discussing the philosophy of constitutional law, Marshall finally lets us know that Marbury won't be getting the mandamus because the part of the law he brought it under wasn't constitutional, though I must admit that for someone who is telling us that all of the words in the constitution must mean something, he's pretty coy about exactly what the jurisdiction clause means though he's certain it makes this bit of the enabling legislation unconstitutional.

              The particular set of circumstances is just backward from what we would expect today. It goes completely against equity. No court would say that the plaintiff is right and is completely justified in his complaint, but then shut off the only (apparent) method of recovery by calling it unconstitutional. Even here, Marshall could have claimed that the jurisdiction for the Supreme Court was a problem and then sent it to circuit court with instructions that they have common law right of mandamus.

              Perfect on the concept of unconstitutional. Horrible on the application of facts in the case at hand.

      •  Sure (none)
        I had Mark Tushnet for Con Law a few decades ago, but even then it was clear that a supreme Supreme Court was fine with him (as long as it wasn't full of lunatics).

        It seems clear to me that the first half century of this nation had the Supreme Court in the position of final arbiter, but not controlling, as if the court were a referee whose opinion was consulted, but as Jackson proved, not always followed. I am certain that no president today would be allowed to publicly ignore a decision in the way Jackson did.

        The Court, and the culture of obedience to the Court, has become more powerful -- Roosevelt did obey the Court when they shot him down, even though it was clear that he was extremely powerful, more powerful than any president before him had been, but his attempt to force the issue by packing the Court left him much weaker than he had been. Since then, no one in the position to do it, until now, has even talked about ignoring their decisions or overturning them in an extraconstitutional manner. I do not see an up side for those who are trying to complain. If Roosevelt at his most powerful could not formally force the Court to do his will, I don't think that a few corrupt men in Congress will be a big threat.

    •  Marshall's own words above (none)
      describing clearly the role of the judiciary and checking the reach of the legislature are truly wonderful.

      How far we have fallen from the revolutionary giants who crafted this great and progressive government we have, the same sturdy structure being chewed on from within by termites like DeLay.

      We owe it to Marshall to fight like hell on this: there is still time to contact Senators to urge them not to remove the filibusters.

      I believe this is about more than the judiciary: I think this is the beginning of a downward slope of banning the filibuster from all potential legislation.  50 hard right vote and The Dick to break the tie, and the America we used to know ends for good.

      This is a profoundly important matter.

      The Dems are finally playing hardball on this, so the clear target  should be moderate or sane Republicans who might wander a bit from the radical right-wing lemmings who control our Senate.

      PLEASE PLEASE PLEASE let's get out there and email or call or write or cajole with LTE Chafee (RI), McCain (AZ), Snowe & Collins (ME), Sununu & Gregg (ME)

      Any others???

      "The government is and me!" -Theodore Roosevelt

      by Republic Not Empire on Wed Apr 06, 2005 at 04:45:46 PM PDT

      [ Parent ]

    •  Marshall was so good... (none)
      ...even that arrogant you-know-what, Scalia would have to be humble in his presence.

      By the way, this diary is truly excellent.

      A thing long expected takes the form of the unexpected when at last it comes. -Mark Twain

      by waztec on Wed Apr 06, 2005 at 05:49:44 PM PDT

      [ Parent ]

  •  "Marbury" as code-word (4.00)

    i am sure you all recall from one of the Presidential debates last summer, Bush's odd tossing in of a reference to Marbury v. Madison, yes? and there was much confusion in TV Pundit-Land as to what the heck was THAT all about? right?

    now we know.

    excellent diary!

    i might add that the Theocracy Wing of the Bushists is Very Excited about the prospect of gutting the judicial branch from top to bottom--Pat Robertson has been heaping vitriol upon "activist judges" on his 700 Club show for like, ten years now! at least! keeps telling his flock how there is nothing in the Constitution about the judicial branch having ANY power that is not totally at the whim of the executive or any time they wanted, congress could just legislate the Supreme Court into nowhere land, so they'd best behave as "the people" clearly wish them to (ie: Biblically,) and so on.

    we got trouble, that much is certain.


      •  that was about abortion (none)
        just like american law failed to recognize that blacks were full persons, it now fails to recognize that the unborn are full persons.  it is what kos calls dog whistle politics.
      •  actually (none)

        i just looked up the transcript, and i think what happened was that Bush talked about the "dred scott" case, but the SUBTEXT sounded like he was really referencing Marbury:

        GIBSON: Mr. President, the next question is for you, and it comes from Jonathan Michaelson, over here.

        MICHAELSON: Mr. President, if there were a vacancy in the Supreme Court and you had the opportunity to fill that position today, who would you choose and why?

        BUSH: I'm not telling.


        I really don't have -- haven't picked anybody yet. Plus, I want them all voting for me.


        I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States.

        Let me give you a couple of examples, I guess, of the kind of person I wouldn't pick.

        I wouldn't pick a judge who said that the Pledge of Allegiance couldn't be said in a school because it had the words "under God" in it. I think that's an example of a judge allowing personal opinion to enter into the decision-making process as opposed to a strict interpretation of the Constitution.

        BUSH: Another example would be the Dred Scott case, which is where judges, years ago, said that the Constitution allowed slavery because of personal property rights.

        That's a personal opinion. That's not what the Constitution says. The Constitution of the United States says we're all -- you know, it doesn't say that. It doesn't speak to the equality of America.

        And so, I would pick people that would be strict constructionists. We've got plenty of lawmakers in Washington, D.C. Legislators make law; judges interpret the Constitution.

        And I suspect one of us will have a pick at the end of next year -- the next four years. And that's the kind of judge I'm going to put on there. No litmus test except for how they interpret the Constitution.

        Thank you."

        •  I love the part where he says... (none)
          ..."The Constitution of the United States says we're all -- you know, it doesn't say that."

          Does he not remember that part, does he not know that it was the Declaration and not the Constitution, or can he just not bring himself to say that we're all created equal?

          "What is wanted is not the will to believe, but the wish to find out, which is the exact opposite." - Bertrand Russell

          by Mad Dog Rackham on Wed Apr 06, 2005 at 06:47:25 PM PDT

          [ Parent ]

          •  I bet (none)
            he started to say something that he realized was untrue, or that he wasn't sure was actually in the Constitution, and made the relatively shrewd decision not to flatly assert something easily contradicted by the plain text of the Constitution.  Like "The Constitution says we're all equal" -- although, of course, it still doesn't say that, and implied it even less when the Dred Scott case was decided.
    •  So short-sighted... (none)
      These theocrats seem to think that their power is going to be ever-increasing with no end in sight.  To the extent that they change law to silence opposition to their policies they might actually succeed.

      More likely, the pendulum will swing back and the "reforms" that they're trying to push will bite them in the arse.

      Today's anti-abortion protester seeking 1st Amendment rights is tomorrow's anti-war protester.

  •  I disagree: Control, not destruction, of jr (4.00)
    Just because the Court (and the judicial branch) says that it has the power to review laws for constitutionality does not automatically mean that they do have the power.  

    The power comes from the deep-seated postulate deeply accepted by most Americans that the courts do have this power.  Without that tacit acceptance of the judiciary's role, the Court's words are no more than words on paper (cf. the Jackson example cited above).  

    Everything whiny thing said by DeLay et. al. could make sense, as explained above, as an attempt to tear down the tacit assumption that the Court can conduct judicial review.  

    But the Republicans are playing with fire: if they delegimiate the judiciary (making it another political branch instead of a quasi-political branch), then the judicary loses the legitimacy that provides the force to its opinions.  And what good would staffing the judiciary with right-wing nuts do then?  

    I don't think the Republicans want to go that far.  What they do want to do is keep the base motivated by the hate-the-judiciary speech (which is the only remaining non-theological branch of government) while, at the same time, using that hate to staff the judiciary with right-wing nuts.  

    If successful, you have Dems on the record as protecting the Court -- while having to swallow the rulings of an arch-conservative judiciary.  The end goal is relatively simple for Republicans: A retrenchment of the judiciary (with bonus lifetime appointments) in a reversal of the New Deal court switch.

    Republicans hate the New Deal policies (active government, Social Security, etc.) why would they hate the New Deal judiciary -- which has turned out to be protective of individual (read: minorities and oppressed) rights at the expense of the majority and capitalists -- any less.  

    No, I don't think the Republicans want to end Judicial Review -- I think they want to control and abuse it.  For the lawyers out there:  Lochner II.

    •  another backfire (4.00)
      if the right is going to go and on about unconstrained judicial power and lifetime appointments it makes the dems' insistance that judicial appointees be minimally qualified seem very reasonable.  
      •  All of the nuts are "qualified" (4.00)
        In the technical sense that they are judges/skilled practioners/etc.  

        The problem is "qualification" in political terms, which, if I were a Republican, I would say that my judges reflect the mood of the country better than the moderates or lefties that the Dems like.  

        Making the fight between far right and way-far right ensures two things: (1) the "far right" judges sail through; and (2) the base is happy about the fight over the way-far right judges.  

        We all know how the White House feels about the merits of a "get the base riled up" strategy.

        •  I don't know (none)
          with some of these folks there were threshold issues, like the woman judge from california who was pretty much clueless and the guy from utah who practice law without a license.
          •  Good point (none)
            The practicing of law in Utah without a Utah license is a pretty big screw up.  Skip him.

            Janice Brown (the CA woman I think you refer to) is way right-wing, but I don't think she is clueless.

            It is scary, though, how few loyal right-wingers there are that they are riding a lawyer who arguably broke ethical and criminal law in Utah.

            (I know, I know -- ethical rules and criminal laws mean nothing to this administration.  Torture, anyone?)

  •  Great diary (4.00)
    It's about damn time someone wrote something like this.

    One quibble - tort reform and the class action bill.  How do those issues impact the notion of judicial review?  Those are limitations on causes of actions, to be sure, but they don't impact the judiciary's province to interpret the law.

    I asking only because I anticipate a fair amount of Dem defections on those issues in the coming months, and I think they're a bit more complex than they're made out to be on DKos.

    "Now I don't believe in nuthin' no more. I'm going to law school!"

    by AngryLawyer on Wed Apr 06, 2005 at 02:43:08 PM PDT

    •  If you keep people out (none)
      of federal court (class action bill) or limit their rights in court (tort reform, damages caps), then you effectively cut off (or at least limit) judicial review, because there's fewer cases going into court to be reviewed.
      •  the right to jury trial (none)
        is a separate issue from separation of powers -- it's in the seventh amendment.  Limits on damage awards are really limits on the right to jury trial in the sense that they constrain the juries ability to award damages they find appropriate.  
    •  They go the heart of the New Deal Judiciary (none)
      The model of the New Deal judiciary is one where, more than any time in the past, greviances are redressed (constitutional mainly; civil/statutory/common law rights secondarily).

      The overall goal, as I argue above, of the right-wing is to retrench the judiciary into a pre-New Deal role -- protecting corporations (through "freedom" of contract) and getting out of the business of sticking up for the little guy or looking out for minority rights.  

      Taking away effective judicial causes of action (class aciton bill); limiting damages (tort "reform"); and reinterpreting the Constitution (activist right-wing judges) -- all of this goes to the same end -- remaking the judiciary.

  •  I think you sell them short... (4.00)
    To which Republicans say, "to hell with all that.  We want to control EVERYTHING."
    What they're actually saying is "To Hell with all that. We do control EVERYTHING. Just try to stop us."

    The Shapeshifter's Blog -- Politics, Philosophy, and Madness!

    by Shapeshifter on Wed Apr 06, 2005 at 02:58:33 PM PDT

    •  This Has Been the Position of Bushco (4.00)
      since his initial appointment. I've been saying and posting it since about 10 minutes after.

      It explains why they behave so recklessly, why they label global military and industrial powers as "irrelevant," and treat every domestic interest (other than their own) as irrelevant.

      I wrote an LTE shortly before the war stating that arguably the most important word spoken since the 2nd World War was the Admin's use of the word "irrelevant." Every paper turned me down; today, I'd love to have a clipping to point to.

      Pure and simple, they're taking over the country. Today Amerika, tomorrow the world.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy....--ML King, "Beyond Vietnam"

      by Gooserock on Wed Apr 06, 2005 at 03:17:08 PM PDT

      [ Parent ]

  •  excuse my shameless self promotion (none)
    but check out my diary about "The Constitution in 2020" conference at Yale this weekend!!!!
  •  thank you (4.00)
    i have been foaming at the mouth ever since the terri schiavo telenovela hit the airwaves that the entire point was being missed... you're goddam right... it's NOT about morality, right-to-die, spousal custody, sanctity of life, holier-than-thou pundits and congressmen, or any other happy horseshit... it's about the CONSTITUTION, SEPARATION OF POWERS, and CHECKS AND BALANCES which have been under systematic attack since the 2000 presidential election...

    i really appreciate the history lesson on the judiciary... you put into words what i intuitively knew to be true...

    The first lesson of democracy is not to hold the public in contempt. - Ronnie Earle, Travis County DA, Texas

    by profmarcus on Wed Apr 06, 2005 at 03:27:34 PM PDT

  •  history (none)
    Was the importance of Marbury v. Madison known at the time or was a creeping realization?

    Thank you for this great post, JSMD.  Anyone who even THINKS of falling asleep over this kind of material---especially in these times---deserves all the Republican-fueled tyranny they get.

    Nicely done.  

  •  Great diary! (none)
    Thanks so much.  I really appreciate you taking the time to explain all of this to the non-legal experts among us.

    And now, a question.  When I hear a couple of my wingnut colleagues talking about this issue, they always bring up the Federalist Papers.  How are they related and what are the salient points involved?

    (Many thanks to anyone willing to take this on; I feel guilty about not looking it up myself but I have the biggest test of my whole life thus far coming up on April 16th and 3 papers due this week.)

    •  Federalist Papers (4.00)
      were written by James Madison, John Jay and Alexander Hamilton in support of the Constitution during the battle over ratification.  Printed under the pseudonym "Publius," they were (and are) an amazing collection of the thinking of the Founding Fathers (at least some of them) on the major issues of the Constitutional ratification debate.  The FP were published during the period from 1791-92 (I believe), and Marbury v. Madison was decided a little over a decade later.  Marshall's opinion was an effort (successful) at asserting the Supreme Court's role as an equal player with Congress and the President in the constitutional scheme of government.

      Hope that helps.

      A day may come when the courage of men fails, when we forsake our friends and break all bonds of fellowship. But it is not this day -- this day we fight

      by jsmdlawyer on Wed Apr 06, 2005 at 03:53:31 PM PDT

      [ Parent ]

      •  I've tried a little (none)
        It was almost two years ago with Howard Dean and the election soon upon us.  I should have blogged on the Federalist papers more.

        Perhaps in an off-year it's time to get back to that.

        Thank you so much for such a masterful work.  In the last 2 days I have leaned so much here.  It's like finding gold nuggets every time you go panning in the blog--I fokkin' seriously appreciate it.

      •  Published in two ways (none)
        "The Federalist" was a journal published in New York during the debate over ratifying the Constitution.  What we know today as the Federalist Papers were essays published in the journal.  None were written after New York ratified the Constitution in July 1789.

        Some years later, the essays were collected and published as a book.  You can find them all over the net, but here's one place that has them up.

        Federalist 81, by Hamilton, speaks directly to the question resolved by Marbury v. Madison.

        It's always the old who lead us to the war, always the young to fall -- Phil Ochs

        by litho on Thu Apr 07, 2005 at 07:40:11 AM PDT

        [ Parent ]

    •  There's also... (none)
      The Federalist Society (WINGNUT WARNING: the link will take you to their website--proceed with caution). If your colleagues aren't necessarily the sharpest tacks in the corkboard, they may be confusing the Federalist Papers (see above comment) with the Federalist Society--a rabid wingnut think tank (and a guaranteed supporter of any judicial nominee you'd ever feel the need to filibuster).

      Some will rob you with a six-gun / And some with a fountain pen. -- Woody Guthrie

      by abw on Wed Apr 06, 2005 at 04:10:26 PM PDT

      [ Parent ]

    •  Thanks! (none)
      Thank you very much.  The amount of collected knowledge and wisdom here never ceases to amaze me. :)
  •  Thanks (none)
    Great review. And I thought the passage from Marshall's ruling was fantastic--no need to feel self-conscious about including it. I'm definitely going to start referring to things that are as "repugnant to the Constitution."

    So, thanks lawyer. This was agreeable to my constitution.

    Some will rob you with a six-gun / And some with a fountain pen. -- Woody Guthrie

    by abw on Wed Apr 06, 2005 at 03:59:58 PM PDT

  •  One quibble. (4.00)

     First, my bona fides:  been practicing (one day I'll get it right, maybe, but for now, just practicing) for the better part of 15 years, mainly Federal Court.

     Second, way back in Drinki--, uh, I mean, Law School, I booked Federal Jurisdiction.  Really.

      That said, I was always taught that it was Tom DeLay who interpreted the law.  Other than that slight omission, your analysis was spot on.


    Awaiting your calls, Chairman Dean, Senator Reid. Lines are open!

    by BenGoshi on Wed Apr 06, 2005 at 04:05:03 PM PDT

  •  I would change one part you state... (none)
    If that doesn't appall you, you're either a Republican or you're not paying attention.

    THere are more than a few paleo-conservative GOPers who are in denial about the breadth and depth of the highjacking of the party of Lincoln by these radical-right freaks.

    I posit that the phrase:

    If that doesn't appall you, you're either a blindly-partisan Republican or you're not paying attention.

    ..more accurately captures the essence of what you are saying. Great post and solid issue and point we must all be very cognizant of.


    Mitch Gore

    Nobody will change America for you, you have to work to make it happen

    by Lestatdelc on Wed Apr 06, 2005 at 04:41:23 PM PDT

  •  Just a little commercial for lawyers..... (4.00)
    ...despite the lawyer jokes, and the universal opprobrium in which we are held, it seems like a good time to remind the non-lawyers among us what we lawyers do for a living.  We go to work each and every day, where we use tools called "laws" and "the constitution".

    And despite our somewhat gamy reputation, most of us try our best to advocate for the application of the constitution and the laws in such a way as to maintain a continuing thread from the intent of the framers to the issues we confront each day.

    I'm currently involved in a case in which the cops kicked down a door without a warrant based on a tip that underage kids were drinking at a party.  It's a chicken-shit little case that won't be discussed on the Sunday morning squawk shows, but my goofy, jive-ass client gets the full force and authority of the Fourth Amendment to the United States Constitution in her corner.  I get to swing the same club that Miranda's lawyer used.....

    That gives me a rush.  And I hope it gives you a rush, too, because the Constitution is alive and living in small-town courtrooms from sea to shining sea.  Lawyers fight for it; judges protect and perpetuate it.  And the current threat to this most important aspect of our system is an attack on the fundamental principles underlying our very freedoms.

    The current threat

    They don't want their kids to pray in school. They want your kids to pray in school!

    by roxtar on Wed Apr 06, 2005 at 04:52:58 PM PDT

    •  I salute you lawyers. (none)
      Yes, I've been guilty of telling some pretty crass lawyer jokes in the past. But I forget who said, "everybody hates lawyers, until they need one."

      Unfortunately, too many folks just don't appreciate what they have (like Constitutional protections), until it's gone.

      Treating people just like pawns in chess, wait til their judgment day comes

      by Alioth on Wed Apr 06, 2005 at 05:31:55 PM PDT

      [ Parent ]

    •  The National Association (none)
      of Criminal Defense Lawyers had a tee-shirt decades ago that said "Liberty's Last Champions".  I used to wear it to the softball games when Legal Aid challenged the cops (the cops always won because they played dirty-and they could PLAY).

      I loved that shirt.  I wore it until it had too  many holes in it to wear it anymore.

      We do not rent rooms to Republicans.

      by Mary Julia on Wed Apr 06, 2005 at 07:06:20 PM PDT

      [ Parent ]

    •  Besides... (none)
      There are dozens of examples of landmark constitutional law cases that looked at first pretty jive-ass, until the Supreme Court granted cert and reversed.

      Clarence Gideon was a drifter convicted of a petty offense - but he was convicted without counsel. Ernesto Miranda was pretty clearly guilty of robbery and rape when the Phoenix cops questioned him without a lawyer; after his confession was thrown out, he was still convicted.

  •  must be something in the air (4.00)

    Billmon at Whiskey Bar is on this topic today, too:


  •  Well so much for the Athenian Court System (none)
    I think that the assholes in power not only want to undo the New Deal, the Bill of Rights, and the Constitution, but to undo the Courts themselves and return us to the chaos that existed before those smart Athenians invented the courts!!
  •  Excellent encompassing diary (none)
    Many thanks for the time to write this for us.  This subject will be paramount for the coming weeks and months.

    Politics is not about ...predictions. Politics is what we create by what we do, what we hope for, and what we dare to imagine. Paul Wellstone

    by bronte17 on Wed Apr 06, 2005 at 07:09:36 PM PDT

  •  An observation (none)
    Many other written constitutions are given lip service because their Supreme Courts are NOT given the right to judicial review. (I am thinking Latin America, primarily)
  •  The importance of the rule of law... (none)
    I think if we lose Judicial Review, Congress will be free to pass laws that contradict each other and use the one most convenient. Like in the Schiavo case: the law was that the states had the right to decide who makes the decision to terminate life-support. The congress tried to pass a law that conflicted the original law giving the state the say in the matter. They did this on a single case in a politically expedient way. Tell me if I am wrong, but laws are interpreted by the courts on a case-by-case basis, but laws shouldn't be written for special cases! Sounds like a clear case of Congressional Activism-defined as congress trying to adjudicate.
    Just think of what they could get away with if we didn't have a strong Judicial Branch *shudder**

    I actuall  

  •  So Much For Limited Government (none)
    I'm sure you've all heard it a million times, conservatives claiming to be for "limited government," by which they mean government limited to doing what they want it to do (invade your privacy, but not provide for the general welfare). However, there's a deeper critique here than mere snarkiness.

    Madison v. Marbury reminds us of the true and original meaning of limited government, which is the last thing in the world that conservatives want (at least if they're in power):

    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...

    i.e. a limited government is one constrained by the rule of law, that is, by the limits of Constitutional authority, and all other applicable laws.

    When Richard Nixon claimed that the President couldn't break the law, since the simple act of doing it made it legal, he was denying the essence of limited government. And it's no accident whatsoever that Cheney, Rumsfeld and so many others high in this administration cut their teeth in the Nixon Administration.

    Oh, and, btw, the Clinton impeachment was more of the same. Pretending that lying about sex was a "high crime and misdemeanor" eventually gave way, at one point, to the frank admission that a "high crime and misdemeanor" was anything that a majority of the House said it was--a pure, unmitigated, unlimited exercise of raw power.

    That's what they want: power, pure and simple and utterly unconstrained. It is their very inward, fundamental and undiluted lust for power that makes them so hysterically fearful of any power in anyone else's hands. They cannot help but project their own tyrannical intentions onto any and everyone else.

    That is why they are traitors at heart. That is why they are so quick to call a "traitor" anyone who stands in their way.  It is the utmost fear in their own minds, their true identity.

  •  jsmdlawyer (none)
    great diary.  Thanks for posting, and making these issues a little clearer to us plebians.

    I wonder if you (and the others here in the field) could comment on the bill that some of our loonier congresspeople are trying to pass:

    This was discussed a few days ago in a diary here, I believe.  It essentially says that no challenge can be raised in Federal court against the contention that God is the source of all law, and that any judge hearing such a case would be subject to impeachment.

    This would seem to contradict Marbury v Madison rather clearly.  Also, could anybody comment on Marbury's standing as "common law" and the necessary restriction it puts on judges today?  I don't really understand this aspect of it, would love some clarification.


  •  The rule of law (none)
    It's interesting that the constitution says so little about the powers of the courts. The FEDERALIST PAPERS and other documents of the times also spend very little time on the topic.  I think that may reflect a consensus that the role of the courts was already well understood and could be taken for granted. The politcal philosophy (known as the RULE OF LAW)underlying the courts goes back to Aristotle, and was perhaps best articulated by Montesquieu.  Thus, while Judge Birch is correct when he says the Schiavo act is uncostitutional, in a more profound sense it violates the rule of law, thus pitting the conservatives against some 25 centuries of established legal philosphy. And supposedly it is the conservatives who respct history and tradition!
          Horrifying as it was, I think the Schiavo act represented a kind of impulsive, mob behavior on the part of conservatives, rather than a sinister plot. One can also surmise from the weasel-wording of the act that at least some Republicans were aware of -and ashamed of-their dangerous and illegal escapade. Yet, where were the Republican senators, the White House advisors who remembered their oath of office to defend the Constitution?  Is Byrd the only living Senator who has read the Consitution?


  •  Awesome, spot-on, many thanks (none)
    The money quote:

    "Republicans hate the fact that, despite controlling the legislative and executive branches of government, they don't really control the judiciary.  As conservative as it can be at times, the judicial branch of government jealously guards its own prerogatives before partisan ideology.  When DeLay and Cornyn attack "activist judges," they are attacking the notion of judicial review, they are attacking the very foundation of the third branch of government, and they are seeking to take control of it for partisan purposes in a way that has never, in over 200 years, ever occurred or really been attempted."

    And so finally, the battle is joined.

    "...psychopaths have little difficulty infiltrating the domains of...politics, law enforcement, (and) government." Dr. Robert Hare

    by RubDMC on Thu Apr 07, 2005 at 08:24:36 AM PDT

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