Saturday, March 10, 2018

Marbury v. Madison: Was the 1789 Judiciary act actually unconstitutional?

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

In part 2, I examined the gap between the activist cases of the early-mid 1900s and the 1803 ruling.

In part 3, the negative and positive aspects of how the Marbury ruling functioned were examined.

Here in part 4, we will look at the constitution and look at the judiciary act.

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. I'm quite certain you won't conclude that the progressives are being honest either. Why would anybody ever conclude that?

There are three major pieces here. First, here is section 13 of the judiciary act:

SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

Then, here is a portion of article III, Sec. 2:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Finally, William Marbury filed his claim straight to the Supreme Court under section 13.

It does appear to me that the 1789 act grants extra-constitutional powers in regard to mandamus. That puts congress in the wrong here. It does not benefit the liberty of the people to have any branch of government stepping outside of its constitutional bounds, be it the courts, congress, or the president.

Understanding the constitution as well as the judiciary act itself does not vindicate judge Marshall. Maybe to you it does, but that's not why I'm doing this. Progressives use the courts to create new legislation in a positive way, wheras Marshall did no such thing. The constitution does not, in fact, give the legislature the right to say that the courts can originate mandamus.

That would require an amendment. Congress does not have the ability to amend the constitution on its own by simple legislation and neither do the courts. Looking at the text of what Marshall actually wrote, that was not his intent nor his result. The progressives have indeed pulled a fast one here.

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