Ideology & Activism: A Study Of The Changing Character of The U.S. Supreme Court As Its Personnel Changes: Pinpointing The Unconstitutional Precedents of Marbury v. Madison, 5 U.S. 137 (1803)
What is the character of the United States Supreme Court, if not an office that has been proven to change according to the change of its personnel?
What is its duty? And what is the duty of the people unto the processes of that court? If the personnel in our U.S. Supreme Court can say that they are the ultimate word on what our fundamental law is (Declaration of Independence & U.S. Constitution); what the original intentions of the framers of our government were, and what ‘was’ and ‘is’ the spirit of liberty, how should the people exercise the power balance to make the Supreme Court accountable to the original understanding, intention, and spirit of liberty of our fundamental laws, and laws that have eschewed forth from those first proclamations of liberty? What should be the rigors and duties within our American schools, and political science instruction to assure such a people who care about the processes of our republican constitutional government?
The American story ‘has been’ and ‘is’ an exemplification of individual liberty and the determined effort to defend the original understanding of protecting individual liberty, against foreign and domestic enemies. Is that the understanding and degree of care that our children have as they graduate from our grade schools and universities? Undoubtedly, an alignment of our American educational goals to bring about such a people would strengthen the national union unto a new level of stability, freedom, civility, and individual advocacy. This would create a political redistribution that shifts an awareness of power (responsibility) unto individual Americans: a reality that would decrease the strength of political factions, and increase an original American heritage: individual self-determination and an equanimity of individual liberty, in the spirit of our Declaration of Independence.
The processes of government should always interest the American citizen: after all, its personnel taxes us, prints out money, sends us to war, introduces changes in our educational doctrines, has been proven to be ideological and open to being instrumentalized according to the self-interest of political groups (factions), and has the power to decide how to interact with other countries, and at what pace and quality of diplomacy it relates to allies and nation-state governments that do not share the basic values of safeguarding individual human liberty. The people should care, and our schools should be made accountable to place before us an array of academic goals and objectives that are sound in their instruction and end result. To this end, parents, those adults who care, support and protect our future generations, are the final line of defense of liberty.
As a nation of laws, parents must become greater, more responsible advocates of how our laws are made, (John Adams). Our fundamental laws and the way that these are interpreted by Supreme Court personnel, must also be contested, discussed, and given a thorough ‘check’ by the American people. Not doing so; in not recognizing our solemn duty to exercise such power of responsibility, our fundamental laws, originalist intention and spirit of liberty can be re-interpreted, according to the ‘activism,’ abstract methodology, and ideological perspectives of Supreme Court personnel. Themselves, setting precedents upon precedents that were at the first unconstitutional, ultimately bringing the spirit of the American union off its course of equal liberty, and justice for all.
In Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall made reference to observance of the intention of the Constitution and questioned how it should be interpreted, giving specific examples that he brings forth to help make his points of question: (1) he informs us that the personnel of the Supreme Court have the right to say what the law says; (2) he reviews the law-making process and authority as it pertains to the Constitutional powers the legislative branch has ‘between the Supreme and inferior courts;’ (3) he questions the reasoning of a portion of the Constitution, and opines that it is ‘too extravagant’ and without meaning, (4) he offers that the Supreme Court should have additional constitutional powers not written in the Constitution to put to rest the questions he raises, (5) and reemphasizes the the Supreme Court always has the final say on what is Constitutional, what is not, and if a case should be ruled upon the basis of the law or fundamental law.
Chief Justice John Marshall reviews the law-making processes of Congress, and he is actively emphatic to repeat that it is the personnel of the Supreme Court whom are the ultimate interpreters of fundamental law, the laws, and the Constitutional understanding of the Constitutional power balance relationship amongst the branches of government.
His ‘review,’ is the first unconstitutional precedent, and the ‘work’ of review of the Constitution, the second unconstitutional precedent: altogether, they emphasize that from heretofore (1803, Marbury v. Madison), the authority upon the understanding & decision-making of the Constitutional power balance relationship structure amongst government branches must rest with the personnel of the Supreme Court. He thus creates two unsanctioned precedents that shift the balance of governmental power away from the Legislative and Executive branches of government and unto the Judiciary: ‘judicial activism’ & ‘judicial review,’ are a construction upon originalist Constitutional interpretation and application of the ‘spirit’ of the law of liberty, and the intention of the founding fathers of our fundamental laws. It is a change in direction of the authority of how to go about statutory interpretation; opening it to arbitrary understanding, without explicitly written Constitutional rules binding the personnel of the Supreme Court to a processes that can be made accountable unto the people and the other branches of government. They can interpret abstractly, and this opens the law-making processes of that court to continuous ‘review’ and works of ‘activism,’ even ideological interpretation cloaked in a constitutionalization of the word and spirit of fundamental law. The precedents allowed the possibility of a changing personnel of the Supreme Court to be the supreme law themselves, instead of our fundamental laws, and the originalist intentions of the framers of our government: a spirit of protecting individual liberty.
The final paragraphs of the written U.S. Supreme Court opinion of Chief Justice John Marshall,
Marbury v. Madison, 5 U.S. 137 (1803):
“If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage — is entirely without meaning — if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.
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If the solicitude of the Convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original. ,If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to
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appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited
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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.
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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 at 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.
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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 endeavours 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
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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.
The rule must be discharged.”