What did it smell like? What was that rat's name? What was the rat's color: brown or grey? What was the rat's purpose? The rat's purpose really is the only important question here. I asked the other questions mainly in jest.
Welcome to the 6th and final posting in this series examining the claims that progressives make in regard to Marbury vs Madison. In parts 1 through 5, I mainly examined some of the inconsistencies relating to the progressives' claims. Here in part 6 I highlight where the problem actually exists. To put it simply: It's not Marbury that's the problem, it's the Incorporation Doctrine.
So, let's start here: what was the rat's purpose? In 1789, not everybody was so willing to trust the newly formed Constitution that had just been forged in Philadelphia. The rat, Henry believed, was a move toward tyrannical government. This post directly relates to the last posting in this series, in that the purpose of a bill of rights is central, and its purpose is as a limitation.
Why did Patrick Henry and others demand a bill of rights? In Patrick Henry's view, the Bill of Rights was necessary because it's function, it's only function, was to limit the power of the general government about to be established. Henry believed the Bill of Rights to be rat poison.
But wait a second. The courts tell us that because of the Incorporation Doctrine, the Bill of Rights UNLIMITS the government's power to command the states? What would Patrick Henry think of that? What would Patrick Henry say about the courts invention, this Incorporation Doctrine, which they claim is related to the 14th amendment,(but in reality is not, read the debate notes when they created the 14th amendment) and now the Bill of Rights is being used as a weapon against the very states he wanted to protect, with the very same Bill of Rights!
Think of that. Patrick Henry must be rolling over in his grave in the context of the notion of this Incorporation Doctrine. So for those who may not know, what is this Incorporation Doctrine anyways? Here is how the lawyers at the American Bar Association describe Incorporation:
“Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government,” wrote the Court.
Emanations and penumbras, my friend, emanations and penumbras. Notice the slimy language of this quote? It says "enforceable against them" ("them" being the states) and also "against the Federal Government". Now I may have been born last week, but I'm not a fool. Which court wrote this anyways? Oh yeah, the Supreme court. That's from the case Mapp v. Ohio. But there's just one problem with this. This is a Federal court saying this. So no, the Bill of Rights in the Federal Constitution is not being used both ways, it's expressly being used as a weapon against the states and only the states. Don't think I'm stating my case properly?
What's the most notorious incorporation case in U.S. history? If you said Roe v. Wade, you are correct. A cursory examination of the effects of Roe lead to an undeniable truth: Roe has placed no limitations upon the federal government. The feds have found nearly unlimited powers at the expense of the states and localities. There's nothing limiting the feds here, they are unlimited!
The point is this. The progressives are fantastic liars. They have many people hating on a case, Marbury v. Madison, that is (if you read the text of Marbury) not in any way related to the judicial problems we currently have. Judge Marshall specifically states just the opposite: We judges do not have the power to make law as we choose. What that means is that America would be a great place if we lived in a Marbury world, but we don't. We live in an Incorporation world.
The Bill of Rights exists expressly and solely to limit the power of the federal government and allow the states to flourish. But since the creation of the Incorporation Doctrine, the Bill of Rights exists expressly and solely to steamroll the state governments. Take a look at another Incorporation case, Everson v. Board of Education with its misquoted "Wall of Separation". How would Patrick Henry, a deeply Christian citizen, how would he respond to not only the perversion of the Bill of Rights into a weapon against his state and other states, but used expressly as a weapon against the faithful? When the Bill of Rights was first submitted to the states, there were 12 recommendations. But it wasn't just a randomized list of 12. It also had a preamble. That preamble states:
The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best ensure the beneficent ends of its institution; (source)
Did you notice that the only capitalized word is "Constitution"? Read the source, that's not my work.
The problem we have is not Marbury. It's incorporation. The Incorporation Doctrine takes the 14th amendment out of context, it takes the Bill of Rights out of context, it completely ignores the original stated purpose of the Bill of Rights per this preamble, and it takes most of our other Founders' writings out of context as well. Consider this: When the Supreme Court cited Jefferson's Danbury letter in the 1878 Reynolds case, how many words did they quote? One hundred and thirty five. How many words of Jefferson's Danbury letter were used in the Everson case? Eight. That's all, just eight. They will take whatever out of context that they have to if it justifies their social justice cause.
With the Incorporation Doctrine, the Bill of Rights gives the federal government unlimited powers to lord over the states and ultimately, to lord over you. That's not what the Founders intended. That's not what the preamble indicates. That is more than anything else, was what Patrick Henry feared. Henry's proclamation may be the most visible personal example of the fears our Founders truely felt, but not a single one of the Founders had it in mind for the Bill of Rights to be used to squelch the states. The Bill of Rights was invented was to squelch the general government.
As I stated toward the beginning, Henry found a rat, and he believed the Bill of Rights to be rat poison. But because of the Incorporation Doctrine, the Bill of Rights is now poison for the states and food for the rat.