Looking carefully at that which is unseen.

Marbury v. Madison

Since the inspiration for this blog has insisted on a Marbury v. Madison post, I feel compelled to oblige him before moving on to more interesting topics. I will have to say that he will be disappointed by the overall word count, though, since 2500 words on the topic is more than I’d care to muster. Of course, Jim has His Very Own Blog and he is free to show me there exactly how someone manages a 2500 word post on Marbury v. Madison.

And for those who do not wish to read to the end, in Marbury v. Madison the final score was Marbury 0, Madison 1.

The “biology” view of communities has long been discredited, my sociology profs taught long ago, and yet anyone with even minimal observation skills can see that there is more than a passing resemblance between the way living organisms work and the way communities work. Communities are “born,” they go through a period of youth and vigor, can change, much like adolescents (though communities can undergo multiple changes, an are where the analogy can fail) enter a time of adult stability, then grow old and filled with accretions and die, leaving “offspring” behind. It is the change in communtieis that is always the most fascinating – as change tends to be in general – because it is during times of change that you can often see the groundwork for what is coming.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) represents exactly such a moment of change that allows a vision of future groundwork. People today take for granted that courts review laws and sometimes invalidate them, but such was not always so. The only check on rulers and laws had traditionally been the force of arms by the ruled (or by outside antagonists). But Marbury established the concept of judicial review in the United States under Article III of the Constitution. Wikipedia also says, “It was also the first time in the world that a court invalidated a law by declaring it ‘unconstitutional.'” but then goes on to add the dreaded “[citation needed]” needed to the assertion. Regardless of the whether it was the “first time” or not, a court had invalidated a law that was unconstitutional and therefore a Good Thing had happened. To quote yet another source, “And the Lord did grin. And the people did feast upon the lambs and sloths, and carp and anchovies, and orangutans and breakfast cereals, and fruit-bats.” And to your average American, that’s all that need be said. Which is because your average American is utterly clueless – on so many things, actually, but in this case on what Bastiat said regarding That Which is Seen, and That Which is Not Seen. Given the nature of education and entertainment in America, it’s not really a surprise. A choice between having to think or being able to watch American Idol Survivor Stars – Antarctica is just not a choice. “Oh look, a squirrel!” wins going away versus discussions of economics. And yet Bastiat’s point is perfect – that which is unseen is often just as important, or even more so, than that which is seen – but Americans can barely handle that which is seen, let alone muster the skill to look behind the curtain.

I can hear the whines now. What’s the prooooooblem? Judicial review of laws is a great idea! No argument from there. The problem is in the “that which is unseen” part. There are two parts which are “seen” here. The first is that there is a third branch of the federal government, a court system, and the second is that the courts overturned a law as unconstitutional. The overturning was Marbury. The third branch of government is established by Article III of the Constitution, to wit:

Article. III.

Section. 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Can you see the unseen part? Anyone? Bueller?

Hint: Where does it say that the court has the power to overturn laws?

Oh, well that’s just inherent in the judicial power.

Oh really? Not before Marbury, apparently, if historical sources are to be believed. The “power” is being constructed out of thin air, right there. What you have, and this is not an original observation by any means, is a perfect example of the government growing beyond its established bounds, a sterling case of how the paper constitution was not going to be an impediment to the growth of Leviathan. The American federal government is supposed to be a government of limited and enumerated powers (try typing that with a straight face!) and here you have one of the branches already taking on powers not duly given to it. Is it any wonder that the courts have not been much of an impediment to the growth of the rest of the federal government, when their own alleged ability to do so rests on that very same growth?

I made earlier reference to the biology view of communities, and what we see here is a textbook example of exactly how that sort of model might gain traction. The American Community is born in revolution, undergoes growth and expansion, a painful adolescence (and not to a better “adult,” but that’s a topic for a different day), adulthood on the world stage, ever increasing senescence in the form of rules and restrictions (and a drain of vitality from parasites, but yet again that’s a different topic) until you get where we are today. A community that is well past its prime, but like many adults has covered up that aging process with a variety of prosthetics, dyes, injections, and other assorted – well, let’s be honest – “lies.” There appears to be more than a bit of dementia going on as well.

The only question that really remains is whether the ultimate demise will be on a bed, half conscious, hooked up to steadily failing life support – or whether it’s going to come from a complete and sudden systems failure while yelling at some other community to “get off our lawn.” But while the model may be in disrepute, that countries eventually die is not. American Exceptionalist Believers aside, there’s no historical guarantee that somehow America will be any different than any other nation that goes bankrupt economically or socially. The only thing is that that end is unseen by the majority who have other, more important to them, things to watch.

Furthermore…Oh look! Dancing With Orangutans is on! Gotta run…..

14 responses to “Marbury v. Madison

  1. MizzE April 30, 2011 at 4:41 pm

    “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within.

    An enemy at the gates is less formidable, for he is known, and he carries his banners openly. But the traitor moves among those within the gates freely, his sly whispers rustling through all the alleys, heard in the very hall of government itself.

    For the traitor appears no traitor.

    He speaks in the accents familiar to his victims, and he wears their face and their garments, and he appeals to the baseness that lies deep in hearts of men.He rots the soul of a nation.

    He works secretly and unknown in the night to undermine the pillars of a city. He infects the body politic so that it can no longer resist. A murderer is less to be feared.”

    -Cicero (106 BC – 43 BC)

  2. MamaLiberty May 1, 2011 at 1:14 pm

    Exactly so, MizzE – Wormtongue is legion in the world today. He assures us that we are too weak, ineffective and ignorant to order our own lives or think for ourselves, but that he and his brothers are eager to do that service for us and – if we will be patient – utopia will break out soon.

    Death to Wormtongue…

  3. Jim Bovard May 1, 2011 at 2:39 pm

    OK, I have been shushed. This is now a bona fide lawyer’s blog.

  4. Jim Bovard May 1, 2011 at 2:59 pm

    I will be curious whether your hardline views on pending national devolution spur some controversy – or response – on this blog in the coming months.

    On the other hand, there are many television specials on Orangutans coming up…

    • Hobbit@Law May 1, 2011 at 3:35 pm

      Among all four readers? Maybe. Though I really need to get The Talk Of Toledo to drop two cents into the blog … and maybe I can even get a couple words from Claire to help complete the collection…. 🙂

  5. Desertrat May 3, 2011 at 11:43 am

    Five readers, thanks be to Claire. 🙂 Bookmarked, although my pasture is already over-goated with bookmarks.

    IANAL, so after reading Article II, I’m not sure I follow your point about SCOTUS doing a thin-air construction.

    Best regards,


    • Hobbit@Law May 3, 2011 at 2:56 pm

      I’m hoping for double digits by the end of the decade…

      In answer to your question about the thin air construction, “Because the Constitution consists (in theory) of “enumerated powers.” In other words, if the Big C doesn’t say you can do it, you can’t. And by “you” I mean the State, not people.

      Keep in mind that the Big C was designed to bind and limit government, and when in doubt should be read to keep those limits imposed. It hasn’t been, almost since Day One, but that’s the theory.

      Anyway, what you’ve touched on is the classic tension between Type A and Type B judges. We take it as a given now that Type A judges invalidate laws based on constitutional considerations, but that was not always the case. A Type B judge simply interprets what’s already there – he views it as part of the separation of powers that it is the job of the legislature to make or repeal laws. He is not a one-person legislative body.

      But, as I said, it’s been a given for so long that judges invalidate laws that the underlying premise is never even questioned any more. It’s just another example of how the “three” branches of government have really just become “one” government.

  6. Desertrat May 3, 2011 at 5:33 pm

    I’m missing something here. If a Type B judge only interprets what’s there, how would an unconstitutional law passed by Congress be negated?

    • Hobbit@Law May 3, 2011 at 5:50 pm

      Congress would need to repeal it. It’s not up to judges to repeal laws. And if Congress didn’t want to repeal it, then it’s up to the voters to elect a Congress that would repeal it.

      Now, even with Type B (non-activist) judges you can have judges who do not penalize as severely for violation of a law that’s arguably not constitutional. This, however, leads to the legislature overstepping ITS bounds and imposing “minimum sentence” requirements.

      So what’s the difference between a judge who overturns a law and one who imposes a zero penalty? At the end, nothing. But in a nation of laws, the MEANS are just as important as the ends, and the ever-growing attitude of expediency trumping legality is exactly why the Republic has turned into Empire.

  7. Desertrat May 3, 2011 at 6:04 pm

    But if there is only interpretation, whence cometh the penalizing? In what manner?

    • Hobbit@Law May 3, 2011 at 6:22 pm

      Most laws contain penalties for their violation. DUI in Oregon is a Class A misdemeanor, for instance, with a penalty of up to $6,250 in fines and a year in jail. The judge, upon a finding of guilty, then imposes the sentence of punishment. A Type A judge says, “DUI laws are unconstitutional” and overturns the law. A Type B judge, on the other hand, imposes a minimal or non-existent sentence. In both cases the defendant is essentially unpunished, but the Type B judge has “legally” used his discretion in setting the punishment for an unconstitutional law, whereas the Type A judge has acted outside the scope of his own constitutional authority.

  8. Desertrat May 3, 2011 at 9:07 pm

    Hokay. I was focussed on SCOTUS and Congress, rather than the rest of the world of judging.

    As a Certified Olde Phart, not all that far below the big eight-uh-oh, I’ve seen many and many a judicial decision which seemed predicated on emotion and political view, rather than on dictionary interpretation of the words of the Constitution.

    Judge to young attorney: “Sir, are you trying to hold this court in contempt?” “No, your honor, I’m trying not to.”

  9. MamaLiberty May 3, 2011 at 9:49 pm

    I have this recurring dream where I’m in front of a “judge” and he’s just threatened me with charges of “contempt of court.”

    And I reply:

    “There are no words to express my contempt for this court.”

    And then I wake up. Hope it will always just be a bad dream. I’m too old to do well in jail.

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