Re: The Need Of Guns

Jeff Dege <jdege@xxxxxxxxxxxxxx> wrote in
news:pan.2007.04.14.23.22.15.233097@xxxxxxxxxxxxxx:

On Sat, 14 Apr 2007 18:01:41 -0500, RD (The Sandman) wrote:

Joe Steel <NoSpam@xxxxxxx> wrote in
news:Xns9912759D37EE3aa10021highstreamnet@xxxxxxxxxxxx:

Article III

Section 1. The judicial power of the United States, shall be vested
in one Supreme Court,...

Which was taken to be the power to rule on laws being broken not
constitutionality.

Not according to Alexander Hamilton. Writing in Federalist 78:

Some perplexity respecting the rights of the courts to pronounce
legislative acts void, because contrary to the Constitution, has
arisen from an imagination that the doctrine would imply a
superiority of the judiciary to the legislative power. It is urged
that the authority which can declare the acts of another void, must
necessarily be superior to the one whose acts may be declared void.
As this doctrine is of great importance in all the American
constitutions, a brief discussion of the ground on which it rests
cannot be unacceptable.

There is no position which depends on clearer principles, than that
every act of a delegated authority, contrary to the tenor of the
commission under which it is exercised, is void. No legislative
act, therefore, contrary to the Constitution, can be valid. To deny
this, would be to affirm, that the deputy is greater than his
principal; that the servant is above his master; that the
representatives of the people are superior to the people
themselves; that men acting by virtue of powers, may do not only
what their powers do not authorize, but what they forbid.

Judicial Review was a common practice among the Supreme Courts of the
various states with respect to their state constitutions. It was
discussed and debated during the ratification debate, and all sides
assumed that the language of the proposed Constitution gave the SCOTUS
the power to review federal legislation.

If that had truly been the case, there would have been no need for
Marbury v Madison to be decided by the USSC. Adams submitted 42 names
for confirmation as justices of the peace. The Senate confimed them on
his last day in office. Jefferson found four of them on his desk the
following day and declared that they had not been delivered to the
"midnight judges" so he forbade their delivery. His position was that
since they had not been delivered, those commissions were mere
"nullities" and he proceeded to name new justices and refused to
reappoint the four. Marbury and the other three judges filed suit in the
USSC, asking it to issue a writ of mandamus to Madison, the new Secretry
of State. This suit seemed so threatening to the Jeffersonians that the
new Congress abolished the term of the 1802 Supreme Court so that the
case could not be heard for an entire year. John Marshall was now on the
other side as chief justice, Levi Lincoln, the immediate successor as
Secretary of State could not "recollect" to whom the commissions
belonged. Madison, the nominal defendent, refused to cooperate and did
not appear in court.

On February 24, 1803, Marshall announced the court's decision and did it
as the opinion of the Court with no dissents and no separate opinions as
was the custom. The Court ruled that the mandamus could not be issued by
the Supreme Court. Marbury was relying on that provision in the 1789
Judiciary Act which the Court ruled was unconstitutional as the
Constitution does not permit the Court to act as a trial court except in
certain cases. This was not one of them.

It wasn't something Marshall invented from whole cloth.

Didn't claim it was. I said it was the case that established the
principle that the USSC could (and should) be the entity that decided the
constitutionality of laws passed by Congress.

RD

.

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