Is "Judicial Review" a negative power or a positive power?

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.

Here in part 3, the negative and positive aspects are examined.

The negative power to say something is unconstitutional is clearly a different animal than the positive power of cooking up whole new legislation. It is not uncommon to read or hear judicial review cast as a veto or a nullification - a negative - and with a view on Marbury veto and nullify are two words which are both fairly accurate terms to use.

I'm not saying that I wholly agree with judicial nullification of laws, however, we have yet another huge gap to examine. That gap is the gap between negative judicial vetos, as exists with Marbury, and positive judicial law creations, such as Miranda v. Arizona. Is that a bad example? How about Roe v. Wade? I'm sure I could find others where "the law of the land" has absolutely zero legislation backing it.

The point is this: We have three separate terms which I will examine here. Those terms are

1) Judicial Review

2) Judicial Activism

3) Judicial Supremacy

There is a huge difference between a case that is horrible and rotten such as Dredd Scott and a case like Miranda. Dredd Scott, while one of if not perhaps the worst case to ever come out of the court, is not a judicial review case.(or more precisely, I have not found any source which calls Dredd Scott a judicial review case) It is, at the end of the day, "simply" horrible judicial outcome. Miranda, on the other hand, is an affront to the constitution. Ironically, it's actually also an affront to Marbury.

Can anybody point to me the new law that was manufactured out of Marbury? Because I can't find any. I can find, however, a law that was negatived by Marbury on the grounds that said law was unconstitutional.

This is a negative vs a positive. This is important to understand, because Judicial Supremacy means that the judiciary is the most supreme, even more supreme than the constitution itself. If a judicial body has the ability create new legislation and to re-write the constitution any time it sees fit, then it is practicing judicial supremacy. The constitution is not supreme here, the court is supreme.

The concept of judicial activism really has no definition and for many, the term is thrown around based on if one does or does not like the results of any particular case. Anything can be activist, regardless of the constitutional aspect.

Finally, the concept of judicial review. Let's be real, not only did the Founders discuss it at the Convention, it also existed prior to Marbury.(See the Hylton case) At the end of the day, Marbury manufactured no new laws out of whole cloth. The power to negative is clearly and plainly different than the power to positive.

Miranda created new law. Roe created new law. Obergefell created new law. There are dozens of others.

Let's cite a little bit of Marbury here. Marshall wrote:

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.

Please note, that Marshall does not say "You congressmen do not have the power to positively create new constitutional statutes without amendments, but we judges do!" "You congressmen do not have the power to place yourselves above the constitution" "BUT WE DO!!!" He never says that, and he deliberately says the opposite. Here is more Marshall:

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.

This is the supremacy clause of the constitution that he is referencing here. Note that in the supremacy clause, the laws(meaning the legislature) and treaties are mentioned second. The courts are mentioned last.

These are not insignificant things to ponder when you consider how progressives position themselves. We have a big gap between Marbury and when the courts started, consistently started, creating new laws of the land.(as a non-legislative body) Judicial review may be a problem we need to solve and dial back, but clearly what the courts are doing today in the 21st century and what they started doing in the early-mid 1900s is not in any way because of the events that transpired during the course of Marbury v. Madison, no matter how many times progressives may loudly shout as to its affirmative.

https://tinyurl.com/ybcm5bn3

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.

https://tinyurl.com/yc3oc9vs

Marbury v. Madison: The one place progressives are telling the truth?

Progressives claim that judicial activism was born with John Marshall's most well know ruling.

But we all know that progressives don't tell the truth. So then what actually is Marbury all about, and what are its true results?

Since progressives are not honest, where did judicial activism truely get established? What is the difference between judicial activism and judicial review?

https://tinyurl.com/y79yux8w

See. Progressives do not separate "society" and "government"

This is progressive ideology 101 here.

Forget that this is gun grabbing. Forget that this is running to the camera seeking the spotlight.

Kamala Harris, who is working very hard to position herself as a future presidential candidate, recently said the following:

When you see the effect of this extreme violence on a human body, and especially the body of a child, maybe it will shock some people into understanding this cannot be a political issue. We have to be practical. I support the Second Amendment, but we have to have smart gun safety laws. We cannot tolerate a society and live in a country with any level of pride when our babies are being slaughtered.

Yes, it 100% can be a non-political issue.

Our United States Constitution starts out with the phrase "We the People" - and then it sets out to limit government any way it sensibly can. This is an indictment of government. This is a call to action for people to act outside of the governmental sphere. In saying "We the People", it means "not them, the government". Get up off your couch and go do it yourself.

But progressives do not or are physically incapable of understanding this. I am not a progressive, so I ultimately cannot say for certain if their brains are incapable of it or if this is a bit of propaganda on their part in order to confuse others and promote the sanctity of big national government. However, the end result is the same.

For a progressive, government is society and society is government. There is no distinction, there is no difference, there is no separation. In the dictionary of progressivism, the words "government" and "society" have the exact, word-for-word entry.

We conservatives, however, understand that government is a sinister foreign entity in the mix of society.

There is also a part of me who thinks that this is sheer laziness. When some progressive be it Kamala Harris or any other starts some phrase with "I cannot..... a society that..." or "We deserve...... better society than....." and then immediately they leave society and start talking about laws and government instead, it's because they themselves do not want to be involved. They don't want to get their hands dirty. They don't want to do heavy lifting and hard work.

We the people be damned, the progressive says. I'm not lifting a finger here. That's someone else's job. That's not my job! "Somebody should do something!" - just not me.

Ideologically, this very is important to understand. Progressives do not or cannot separate government and society. However, to me that's a foreign concept - they are clearly two different things.

https://tinyurl.com/y7oqmq3b

Progressivism = Henry George. Not Karl Marx.

In the past, I have speculated heavily (based on deeply rooted and provable cultural origins that the original progressives called themselves "progressive" based directly upon the title of Henry George's book Progress and Poverty. (see also 1, 2, and 3)

I speculate no longer. In the Quarterly Register for 1893, the following is written:

The discontent of the workingmen and the mercantile classes in London against the wealthy titled landlords, has been increasing for several years. The latter have always succeeded in the past in minimizing the taxes on their own property, throwing a large part of the burden upon their tenants. The landlord element style themselves "Moderates," and the tenant element are known as " Progressives." The latter claimed that public improvements should be paid for by the land-owners; and the issue was joined on that as well as other points. The triennial election for "the new London County Council on March 6, resulted in the triumph of the Progressives, who elected 83, while the Moderates elected only 35 . The Progressives had formed an alliance with the trades-unions, and nominated labor candidates, including John Burns, the great agitator. The believers in the Henry George theory, claim the election as a decided triumph for the underlying principles of the Single Tax.

I have long stated that I believe progressivism to be worse than communism, and just because I can now verify this direct root does not change that belief. Just because Marx was relatively bad and George was relatively not, does not change what the progressives themselves did with the information.

This timeline is so critical to get nailed down. Yes, the progressives became communists - in the 1960's. All of that is true and its crucial in the later parts of the timeline. But by not nailing down this timeline properly from front to back, we give them an easy escape route, a place to hide and come back later.

We need to eliminate all the shadows, like sunlight to a vampire.

These people are cockroaches. They were cockroaches in the 1890s and 1900s, they were cockroaches in the 1930s, and also in the 1960s. But if we cannot accurately call them out in 1905, then they win. If we cannot accurately call them out in 1924, they win. I'll state this conversely: If the only time we can accurately call them out is in the 1960's or beyond, they win. By not nailing down the beginning, we lose the end.

The onus of proof is on us. Just how bad do you want to save your country from the progressives?

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle - Sun Tzu (Art of War, Chapter 3)

Anybody who simply states that all progressives always = communism, they do not know/understand the enemy. They need to spend more time with Sun Tzu.

https://tinyurl.com/ybjdydn7

In 1912, the United States Constitution was not "living and breathing"

Timelines are devastating to progressivism.

Over the years, progressive historians have done a good job of insulating their ideology from the question of "when did this happen", by taking quotes out of context, using the power of omission, and other trickery, in order to retroactively cook the books and make some things seem older than they actually are.

The theory of the living and breathing constitution falls under this umbrella. Yet if you examine the history of progressivism itself, you once again see all of their lies on full display.

You needn't look any further than the platform of the Progressive Party. That's right. The progressives were so fed up with how difficult it was to pass amendments that the concept was embedded into their own party platform. That platform says:

AMENDMENT OF CONSTITUTION

The Progressive party, believing that a free people should have the power from time to time to amend their fundamental law so as to adapt it progressively to the changing needs of the people, pledges itself to provide a more easy and expeditious method of amending the Federal Constitution.

Not living and breathing. All of this is very important to understand. The progressives don't want it to be more widely known that this is a doctrine that they themselves cooked up out of whole cloth. They need it to seem as if it simply "just always was".

Now, here is what former president Roosevelt wrote in explaining this:

We propose to make the process of Constitutional amendment far easier, speedier, and simpler than at present.

But this is unnecessary with a living document. No amendment is needed, that whole process can simply be circumvented with judges. He even admits this. He says:

We do not confine ourselves to mere scolding. We do not merely denounce what we do not like. We have a definite plan which has been outlined above. The courts are continuously by their decisions annulling laws which the people desire to have enacted. They are in effect continually amending the Constitution against the deliberate intent of the people who made the Constitution. Judicial amendment to the Constitution is fatally easy. Popular amendment is so difficult that at best it needs ten or fifteen years to put it through. The theory of the Constitution against which we protest takes away from the people as a whole their sovereign right to govern themselves. It deposits this right to govern the people in the hands of well meaning men who either are not elected by the people, or at least are not elected for any such purpose, who cannot be removed by the people, and who too often perversely pride themselves on having no direct responsibility to the people.

Mmmm, give me more of that propaganda. Now, many people who can't stand progressivism could find themselves sucked into this, because on the surface it sounds like really good candy. But the context is so, so important here.

Former president Roosevelt is BITCHING about the fact that as the progressives were proposing and attempting unconstitutional, totalitarian legislative BS: the courts put a halt to it. That's right! The courts in his day stood against progressivism and stood for Liberty and the Constitution. Imagine that! Courts that actually honored and respected the Constitution. Now, suddenly, that paragraph looks just as poisonous to you as it does to me. It's a paragraph that only a dictator could love.

How much better would America be if we had our courts from 100 years ago. It would be great. Constitution up! Liberty up! Tyranny down, down, down. Put it on the ash heap of history.

Now, don't think I'm only saying that it was just the Bull Moosers who put a target upon the Constitution as the finest toilet paper that money cannot buy. Frank Johnson Goodnow, a man whose ideas were highly regarded by Woodrow Wilson, who served as President of Johns Hopkins, wrote the following: (alternate)

The question which has been chosen for discussion this morning is: Can a practically unamendable constitution, adopted in the conditions and under the influences of the political thought prevailing at the end of the eighteenth century, be adapted by judicial interpretation to the needs and thought of the twentieth century without causing us to lose the advantages which are commonly regarded as attached to a written constitution?

So you see, this debate was raging amongst progressives and they increasingly came to believe that the courts were their best course for amending the constitution without ever amending it. It's devilishly, deviously brilliant. No really. How do you do something without doing it? Progressives ask this question of themselves all the time whenever they seek to impose their authority over you and your family, no matter how much you try to prevent it's happening.

Just to show that it wasn't just the high profile progressives, don't forget about Herbert Quick. Quick, who was a supporter of Wilson, also sought a way to get around that pesky, unamendable, not-living constitution. And again, in my last post I discussed Rexford Guy Tugwell, another very important progressive, who also was upset about how immovable the Constitution was.

Now, last but not least, the most important one to consider is the words of Woodrow Wilson. In 1908, when the concept of the living constitution was first introduced, Wilson pointed out the following:

The trouble with the theory is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and live. On the contrary, its life is dependent upon their quick cooperation, their ready response to the commands of instinct or intelligence, their amicable community of purpose. Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day of specialization, but with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without leadership or without the intimate, almost instinctive coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice.

During the 1912 campaign, Wilson refined his beliefs. If you contrast his book to this speech, there are only merely subtle differences. But one difference is so important:

Government is not a body of blind forces; it is a body of men, with highly differentiated functions, no doubt, in our modern day, of specialization, with a common task and purpose. Their cooperation is indispensable, their warfare fatal. There can be no successful government without the intimate, instinctive coordination of the organs of life and action. This is not theory, but fact, and displays its force as fact, whatever theories may be thrown across its track. Living political constitutions must be Darwinian in structure and in practice. Society is a living organism and must obey the laws of life, not of mechanics; it must develop.

All that progressives ask or desire is permission — in an era when “development” “evolution,” is the scientific word — to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.

You notice how in the beginning, he kind of just throws the idea out there about a living constitution based on Darwinian thought instead of that of Newton? He has a lot to say about it in the abstract, but in the second instance he is forceful. Full of conviction. The nation will die unless the constitution is living and breathing, there is no doubt about it that Wilson believes this fully in 1912. But note the contrast between the two. They've made progress, but the question is, progress from what? If the constitution was already living and breathing right from the start, why would so many progressives have been harping and carping to begin with? That, right there, their whining is the point.

I've spent a lot of this writing putting together a contrast of before and after, but actually, Wilson does it far better. He does so the best. Wilson, in admitting that the Constitution is actually Newtonian as originally formulated, is stating that the Constitution is not living and breathing. A machine cannot just change it's shape and form,(Maybe they will one day, but they do not now) you have to "revise" it somehow, by bolting on a new piece. You have to work on it, amend it, by having something mechanically changed, such as the mechanics of a Constitutional Revision Committee; such as an amendment process.

This is why we need to know the history of progressivism, because it is quite distinctly to our advantage. You can tell both in reading these short clips, and even moreso if you opened the links and read additional words, that the progressives knew right from the beginning how they would implement their idea of the living constitution. They just needed to get into office for enough years to nominate enough judges to see it through.

https://tinyurl.com/yb8dgksn

Listen to this progressive whine about how bad the 14th amendment is

From a Constitutional and therefore conservative(as in modern conservatism) point of view, the 14th amendment is a fantastic bit of work. I don't bring this up too often, because the 14th amendment didn't become a weapon of progressivism until somewhere in the 1950's(and it is thus generally outside of the scope of my focus), but the 14th amendment takes plenty of attacks from many who are not actually attacking that amendment, but rather, the courts' misuse of it.

But they don't know that, which is sad. Most conservatives, if they knew the timeline, would be ardent, ardent defenders of the 14th amendment.(the more I read about it, the more I'm convinced of this) Far too many conservatives think the 14th amendment authorizes all of these christmas tree goodies for progressivism, so therefore the 14th amendment must be the worst on the docket.

In reality, the men who stood together in the mid 1800s and framed it did a masterful work, as is illustrated by the recorded debates for that amendment. (see here) They specifically had as a goal NOT to re-write what the Founding Fathers did, and specifically built the 14th amendment to NOT rock the boat.

The 14th amendment wasn't always a treasure chest for the progressives to continually pull gold doubloons out of, and they knew it.

Rexford Guy Tugwell, who remains to this day an extremely consequential progressive, and probably the main architect of the New Deal, wrote this in 1928:

The grain of grace is familiarly furnished, as in other cases, by the dissent of Justices Stone, Brandeis, and Holmes. The minority opinions of these three are coming to be legal classics. They may in time become the rule of law. But so long as legalists so downright as Justice Sutherland are dominant, progress is definitely blocked. The decision could not be clearer:

An employment agency is essentially a private business. True, it deals with the public, but so does the druggist, the butcher, the baker, the grocer...Of course, anything which substantially interferes with employment is a matter of public concern, but in the same sense that interference with the procurement of food and housing and fuel are of public concern. The public is deeply interested in all these things. The welfare of its constituent members depends upon them...but in none of them is the interest that "public interest" which the law contemplates as the basis for legislative price control. Under the decisions of this Court it is no longer fairly open to question that, at least in the absence of a grave emergency, the fixing of prices for food or clothing, of house rental or of wages to be paid, whether minimum or maximum, is beyond the legislative power. (RIBNIK v. MCBRIDE, (1928))

Freedom of contract and the due-process clause of the Fourteenth Amendment have again been made to serve the cause of reaction. Contrariwise, however, the dissenting opinion of Justice is much the clearest analysis ever made of that shadowy legal area within which economic compulsions are disputed. The majority makes no attempt to meet the theoretical objections to its position; its statement is pure and unreasoned dogma, its use of "public interest" an obvious statement of prejudice and dislike for bureaucratic meddling.

Would you listen to that!!! It's the tool of reaction! The 14th amendment in his view is a bomb because of all of you reactionaries out there. But you wouldn't know that today, nearly a century later. The 14th amendment is constantly used as a weapon against "reactionaries".

I sincerely urge all of you to read the debates from the framers of the 14th amendment. There's not one item that progressives claim, that was discussed at the time.

At least, I haven't found one yet. I bet you won't either.

Don't give up on the 14th amendment. It isn't what the progressives claim that it is. As always, progressives are liars.

https://tinyurl.com/ycwpj2wt