Marbury vs. Madison

It was THEN.

Marbury vs. Madison, 1803. The Supreme Court granted itself the authority to consider cases about the constitutionality of legislative and/or executive decisions, and when deemed by the court, and therefore by the OPINIONS of those on court, unconstitutional, to overturn them.

Judicial review is over 200 years old. I can’t decide whether this should encourage optimism or pessimism about the state of the things in the USA, but pessimism is winning the argument.

(Digression: Half of you probably know all of this all ready. Oh, well. Humour me. Half of you probably didn’t know but don’t necessarily care. Oh, well. [comment deleted by shocked Deputy Headmistress].)

The interesting thing is that the case was not to meant to be a revolution of any kind at all. It was a political move by the Federalist Party, out of power in Congress and the White House, but determined, nonetheless, to have their way.

(I know. It sounds so hauntingly familiar. Humanity will always be humanity, there is nothing new under the sun.)

No doubt you are all familiar with John Adam’s “midnight judges?” Thomas Jefferson didn’t like these judges, and his secretary of state James Madison was forbidden to deliver the commissions. Chief Justice Marshall was a diehard opponent of Jefferson and when one of the men whose commission was being refused filed suit to have a writ of mandamus delivered to Madison, directing him to deliver the commission, Marshall was determined that Marbury should win. So he found a way.

At this point I shall cease to burden you with the cumbersome explanations that are mine own, and let Mark R. Levin, author of “Men In Black: How the Supreme Court is Destroying America”, clear the waters for you.

“With a Republican majority elected to both houses of Congress in 1800, Marshall realized that Jefferson and his Republicans could denude the Supreme Court of authority and that he, as chief justice, could be impeached and removed from office. Marshall understood that, in the Marbury case, if he ordered Secretary of State Madison to deliver Marbury’s commission to office, Jefferson would order Madison to ignore the Supreme Court’s writ, and the Court’s authority would be seriously weakened. Marshall was also concerned that he not be seen as protecting the interests of Federal jurists like Marbury, who had assumed his position as justice of the peace & had been hearing cases and issuing judgments for a year.”

My turn, cause I think I could get this bit over quicker. Marshall’s argument in court was that, since Marbury had already been confirmed and nominated to his position, he had, essentially, a property right to the position. (I thought this was vedy intewesting, and Mr. Levin says it wasn’t that uncommon of an argument at the time.) So. Marbury’s constitutional rights were being violated and Marshall claimed that “…the Court had a responsibility to set aside acts of Congress that violate principles enumerated in the Constitution.” (Mark Levin’s words, once again.)

And that is pretty much both the end of the story and the beginning of the story.

In Marshall’s defense, as obnoxious as his acts may have been, he could not have known what a dangerous precedent he was setting. By the same token, those who wrote the Constitution and made the courts independent of the other two branches, and most importantly, the votes of the people, could not known how tyrannical such a court would become.

We have, in consequence: Marbury vs. Madison, the Dred Scott case, Roe vs. Wade, Everson vs. Board of Education, and Terri Schiavo.

“This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is…by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare attempt.”
Thomas Jefferson

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A Quiet Day

…Split pea soup is simmering (I do hope I haven’t mussed it up. I usually don’t, but there are occasions where somehow it goes Completely Awry and the poor Common Room inhabitants are left to reflect on the cheering fact that there are, at least, left overs in the fridge). I have finally completed “Jane Austen: Obstinate Heart.” It is a somewhat obstinate read as the author seems to do most of her biography by simply narrating Jane Austen’s letters. ugh. Why not read Austen’s letters? That is something I would be doing at the moment, but I am afraid they are in one of our poor unpacked boxes of books. At any rate, I think I shall be re-reading one of her books shortly.

A few days ago I finished reading “Hidden Art of Homemaking” by Edith Schaeffer (which I think I mentioned here). Although it was all rather good (although also occasionally repetitive) I found one passage in particular really grabbed my attention. I even copied it down in my regular journal, which is not something I am wont to do. Usually quotes go into my booklist journal, and Bible verses into my regular journal. This quote, however, is one I knew needed to be applied to my life… and soon. So here it is:
One person sleeps half the day, gets up looking like a half-dead duck, drags around with eyelids scarcely open, slurping coffee and leaving a mess all over the newly polished sink, leaves the bed unmade and a week of clothing in a heap on the bed, heaves a sigh and moans about what a drag life is, then prepares to sit and philosophize while you work. What is the effec this has on you? …You begin to feel tired, discouraged, irritated, frustrated and hopeless.”

My toes are still bruised. I am the Half-Dead Duck Type. 😛 Now, however, I am a Reforming Half-Dead Duck (does this make me a 3/4 Dead Duck?) and optimistic about the prospect of becoming a Fully Alive Duck.

Before I quit (gots to dust & vaccuum the hidey hole upstairs before supper): can anyone direct me to a site online with a photograph of Benjamin West’s Christ’s Rejection By the Elders? It was mentioned in the Jane Austen biography and I should like to see it. Edit: Thanks so much to the wonderful woman (you know who you are!) who sent me a link. You can see the picture here.

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Suggested reading

Much to think about on Polipundit today.

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George Felos introduced HB 2131?

Is that the gist of this article?.
HB 2131 is the bill in Florida that changed feeding tubes, by a stroke of law, into artificial life support. Not sure why a feeding tube for a person who can’t swallow (or, as in Terri’s case, swallows saliva all day long, but is forbidden by court order from actually being given so much as a sip of water to swallow) is any more artificial than, say, a bottle of baby formula, but there it is.

Am I understanding this correctly? George Felos, Michael Schiavo’s lawyer, accepted the Schiavo case, filed the petition to introduce the bill, and once it became law, the Schiavo case was heard in court.

The Anchoress says:

In that order. In April 1999 – House Bill 2131 was introduced in the Florida legislature by the Florida Elder Affairs & Long-Term Care Committee to amend Section 765 (Civil Rights) of the Florida Statutes. The amendments to Section 765.101 were the legal definition of “life prolonging procedures” to add: “INCLUDING ARTIFICIALLY PROVIDED SUSTENENCE AND HYDRATION, WHICH SUSTAINS, RESTORES, OR SUPPLANTS A SPONTANEOUS VITAL FUNCTION”.

It becomes law on October 1, 1999.

The Anchoress also tells us about a possible conflict of interest.
Whose been making campaign contributions to Judge Greer? Find out from the Anchoress.

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Terri Schiavo and Dred Scott

Musing Minds looks into the legal issues regarding Terri’s case, and finds out that

In seeking guidance regarding the ending of a human life, the court looked to how another court weighed the harm that would result from the improper sale of a petroleum product.

And further,

the court denied the stay knowing with absolute certainty based on the laws of science that Terri would be dead long before any trial could be heard, and thus practically denied the trial contrary to the clear spirit and intent of the legislation.

You’ll want to spend some time there.

Musing Minds links to Andrew McCarthy’s article ‘Beyond a REasonable Doubt,’

Terri Schiavo has been ordered by a state judge to be killed by starvation and dehydration. The order implicates her Fifth and Fourteenth Amendment rights not to be deprived of life absent due process of law — the courts that have examined this case do not dispute this indisputable point. I believe it is unquestionably the law of the United States — today, already, without any need to change the law for Terri’s benefit — that due process mandates that no person may be deprived of life by state action unless every factual predicate legally necessary to validate the state action has been proved beyond a reasonable doubt.
The two factual predicates that triggered the state order in this case — that Terri is in a persistent vegetative state (PVS) and that she evinced a desire to die rather than be sustained by food and water if ever she were in a PVS — were not established by proof beyond a reasonable doubt. This cannot be denied. Even the Florida court, which claims (however dubiously) to have made its conclusions using a lesser “clear and convincing evidence” standard, cannot and presumably would not contend that the reasonable doubt standard was used in the state proceedings.

Andrew points out, as have others, that criminals accused of capital crimes receive more consideration and care in their court cases than has Terri. They receive more legal protections, more careful analysis of the evidence, and more concern from for their Constitutionally protected rights.

The Fifth and Fourteenth Amendments do not distinguish between the lives of capital murderers and the lives of other persons. They don’t mention “criminal” and “civil” distinctions. In this context, they command simply that no person shall be deprived of “life…without due process of law.” There is no reason in the text of the Constitution to believe that “due process of law” should have a different meaning depending on whether the life to be taken by state action is that of a convicted criminal or that of some other person.

You’ll want to read the whole thing.

The fifth amendment reads “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The fourteenth amendment is longer, but here is the portion Andrew McCarthy refers to:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I have been thinking that Terri Schiavo is the Dred Scott case of this century, and it is interesting to note that the fourteenth amendment was a direct result of and a response to the Dred Scott case.

You can read more about the Dred Scott decision here.

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