Sunday, February 25, 2018

When did the courts stop looking at Marbury v. Madison as "that mandamus case"

In part 1 of this series, I asked one very simple question: "Are progressives telling the truth about Marbury?"

Since we know that progressives don't tell the truth about anything, then we have to start from square one. Why this is important, is progressives have long linked judicial activism to Marbury as the home of every scheme they've devised, but the more I look into it, the less I can see this is true. And if Marbury is not the source of the problem, then we need to identify the real cause. You don't stop cancers with flu medicines and bandaids.

An interesting thing occurs if you look into some of the past court rulings and how/why they either reference or cite Marbury. For clarity, I use "reference" to mean that the judges are aware of Marbury, they are talking about Marbury, but it doesn't necessarily have any direct bearing and its not being used to move the ball down the field. I use "cite", on the other hand, in the context as how Marbury is used in the case Cooper v. Aaron: they cited Marbury as a direct order of precedent for their current action in the case.(My use of cite/reference may or may not be how it is legally used)

Now, progressives tell us today that Marbury is so important, it's such a pinnacle, it granted all of these wondrous powers and it even delivered a new loaf of bread to boot. But then why did the courts for so many years merely look at it as some compartmentalized mandamus case with no other real context? Take for example the 1838 case of Kendall v. United States and others; Mississippi v. Johnson (1866), Ex Parte Bollman and Ex Parte Swartwout (1807), Kendall v. Stokes (1838), United States v. Schurz (1880), and Poindexter v. Greenhow (1885). In some cases, such as Insurance Company v. Comstock (1872) and Reeside v. Walker (1850), Marbury is nothing more than a footnote at the end of the decision, as opposed to a more central part of the opinion/dissent reasoning.

You will notice by the dates above, that I focused in on cases that existed prior to the perversion of progressivism. Prior to basically 1900. I am sure there are other court cases, but you get the point.

I do want to make it plainly explicit here, I am only taking a cursory look into cases which are coming into contact with Marbury, and looking at what these cases are saying and the context of how they are saying it. Some of these cases are thousands and taken together tens of thousands of words long - I haven't read all of these word for word. However, it does stand to reason that we have a huge gap between 1803 and the 1930s before the courts truely start becoming this out of control monstrosity. Well Marbury wasn't decided in 1929!! So why the gap? Why does this over 100 year gap exist between when the courts supposedly went out of control, to when they finally decided to go out of control? Shouldn't this big black hole gravity-well be nonexistent? Shouldn't it be 1805 and 1809 when all of this is occurring, and not 1958? None of what the progressives assert makes any sense at all when closely examined, particularly with a calendar in hand.

Now in most instances, a mandamus case that is about mandamuses is going to cite Marbury in the context of mandamuses. But outside of the context of mandamuses, it appears to me that the first case that actually cites Marbury in some meaningful manner is the case Mugler v. Kansas. (1887) So you mean to tell me that Marbury was stuck in the mandamus box for 84 years? Yes, Mr. Progressive, that Marbury case is such a pinnacle of judicial activism!

The Bollman Swartout case is a particularly amusing read, at least a line like this:

The original jurisdiction of this Court is restricted to cases affecting ambassadors or other public ministers and consuls and those in which a state shall be a party. In all other cases within the judicial powers of the union, it can exercise only an appellate jurisdiction. The former it possesses independently of the will of any other constituent branch of the general government. Without a violation of the Constitution, that division of our jurisdiction can neither be restricted or extended. In the latter, its powers are subjected to the will of the legislature of the union, and it can exercise appellate jurisdiction in no case, unless expressly authorized to do so by the laws of Congress. If I understand the case of Marbury v. Madison, it maintains this doctrine in its full extent. I cannot see how it could ever have been controverted.

Because, clearly, the courts looked at Marbury as a limiting factor, and not one that grants all of these wondrous powers and a loaf of bread. This is also the case where I got the line "the mandamus case" from, as if Marbury wasn't viewed to be all that consequential at all to prior courts. "Oh that was just that mandamus case, that was no big deal. Moving along." And just the fact that it was viewed as a mandamus case only, also brings its own limitations. Kendall uses similar language:

On the legislature was imposed the duty to give it effect; it was wide as the land, and extended to every portion of it, and by the Judiciary Act of 1789, section 13, Congress attempted to invest the Supreme Court of the United States with the power to issue writs of mandamus to persons holding office under the authority of the United States. But the Constitution having restricted this Court to the exercise of certain original powers, and this not being amongst them, it was holden in Marbury v. Madison, l Cranch 137, so much of the act was void.

Isn't it interesting? Everybody wants to be limited by and to the Constitution in the earlier years.

Now I can only imagine that some will reply "Yes, but, that's only because the courts did not at first realize what they truely had on their hands." Is that so? Or is it that the progressives went on a treasure hunt way after the fact for anything that they could take out of context, to justify their usurpations?

I lean strongly toward the second.

1 comment:

  1. This is an interesting article.