John Marshall, author of Marbury v. Madison.
May 28, 2012


The Supremes

There are several Federalist papers that deal with the judiciary. These are numbers 78 through 83, but 78 and 81 deal with the judicial power and the ability of the judiciary to declare a law unconstitutional.

First off, Hamilton, the author of the papers dealing with the judiciary, describes the constitution as being a limited constitution. Note that it is not the government that is limited, but the constitution itself that is limited. This difference is crucial. The UN, for instance, is fond of generating high flying, fine sounding documents that are approved by the civilized nations, and also consented to, ostensibly, by every misbegotten, anti-Semitic, tinpot kleptocrat on the planet. Every declaration of high intent, “high ideals, so called,” in the words of Mr. Potter, can be used to justify repression, Gulags, gas chambers, executions, and murders galore. If you don't believe me look at the history of Russia under the Soviets, China under Mao, Cambodia, Cuba, Germany, and on and on through the dreary annals of infamy.

A limited constitution means that the ideals are limited, and the practices, the legislation that can be derived from that document is also limited. The constitution does not seek to make the state co-equal with God so that it can reach down into the smallest areas of a person's life.

Hamilton, the author of the papers under consideration, maintained that:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
Now note that Hamilton says the court is least dangerous to the Constitution because it does not have enforcement powers, i.e., the police and armies are allocated to the executive, and the legislature controls the purse, taxing and spending. Now there is always the problem of the courts issuing an order to compel the executive to do something, and the executive refusing to comply. The court can then issue contempt citations till the congresscritters come home from their mistresses and girlfriends, but if either branch refuses compliance, the court is essentially helpless to obtain compliance.
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”*

*Hamilton, Federalist 78.

The power of the legislature is limited in Hamilton's view. The Constitution has what Hamilton describes as a “tenor,” not a musical range, but a pattern of meaning, of holding, and this tenor establishes rights against the legislative and executive urges to expand their power and dominance. In other words passages in the Constitution are not to be used to drive the truck of legislative imperium through. So the reasoning that sees abstinence from commerce as being part of commerce would seem to Hamilton absurd. The fact that the courts have accepted this doctrine as a precedent merely shows that they are not doing their job of protecting the people from the encroachment of the legislature.
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.”
Now I have to admit that my present way of thinking has been pretty much along the lines of sympathy with Jefferson, who did not think it proper for the Court to hold legislation unconstitutional, and I once argued that Marshall usurped an authority that had not granted the Court. However, Hamilton is pretty plain in saying that it was within the Court's power to overturn legislation. Hamilton gives an example of an argument against the Court's power:
The arguments, or rather suggestions, upon which this charge is founded, are to this effect: “The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the spirit of the Constitution, will enable that court to mould them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body.This is as unprecedented as it is dangerous. In Britain, the judicial power, in the last resort, resides in the House of Lords, which is a branch of the legislature; and this part of the British government has been imitated in the State constitutions in general. The Parliament of Great Britain, and the legislatures of the several States, can at any time rectify, by law, the exceptionable decisions of their respective courts. But the errors and usurpations of the Supreme Court of the United States will be uncontrollable and remediless.” This, upon examination, will be found to be made up altogether of false reasoning upon misconceived fact.”*

*Hamiltion, Federalist 81.

So it is possible, and Hamilton acknowledges it, that the Court may “legislate from the bench.” Now whether this in fact happens is hotly debated, and some remarkably jugheaded and evil decisions have been made. Finding that a Negro, in the old terminology, is not human, a finding that flies in the face of biology and anthropology and common decency is jugheaded; finding that a farmer who raises and consumes his own food is by not participating in interstate commerce is in fact participating in such commerce, or finding that an unblighted home is subject to the whim of a city council on the expectation of a social reward, or deciding that a penalty is a tax come close to “legislating from the bench." Hamilton also seems to believe that the power of the legislature to bring impeachment proceedings against the judges will effectively limit their power:
There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. While this ought to remove all apprehensions on the subject, it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments.”
There are problems with this view:
  1. The courts may rule in favor of evil principles (Dred Scot, Kelo), or in favor of controversial ones (Roe, Obamacare), and because of the political circumstances not be subject to the legislative reprisals that Hamilton apparently envisions.
  2. The storm may blow over, and the public, and the legislature move on to other topics.
  3. The dispute may be corrected or resolved by other, less palatable means, i.e., the Civil War resolved the issues of secession and slavery and eventually the humanity of the non-white population.
In Marbury v. Madison 5 U.S. 137 (1803) John Marshall established the principal of judicial supremacy. A man, Marbury, had been appointed to Federal office, and this office required that he be given a commission as a federal office holder. For one reason or another he didn't receive it, and he sued to compel the administration, that of Thomas Jefferson, to deliver him the commission. This required that the court issue a writ of mandamus, which is a writ that compels the performance of an action. Marshall and the court decided that while Marbury was due the commission that he did not have the means to compel performance because the Court could not issue the writ of mandamus. Now I'm not sure that I follow Marshall's reasoning here. Presumably courts had been issuing that writ since it was first conceived. In any case the court reasoned that:
  1. Marbury was legally entitled to his commission as Justice of the Peace.
  2. Madison's refusal to issue the commission was illegal and remediable.
  3. The Court had no authority to issue the writ of mandamus because the section of the Judiciary Act of 1789, which extended the Court's original jusrisdiction and permitted Marbury to sue was unconstitutional.
  4. Consequently Marbury's petition was denied.
Now note that Marbury's appointment by John Adams, the day before Adams handed the presidency over to Thomas Jefferson, was legal, and that Marbury was entitled to relief, but that the Court could not issue the required writ because Marbury had come in through the wrong route, original jusdiction, rather than through the appelate process. Was Marbury precluded from asking for a hearing in the appelate courts after he had been refused relief by the Supremes?z

What are the problems that inhere in judicial review? In my view, there are several:

  1. The courts focus solely on the issue of constitutionality. Now it is possible for the a constitution to contain evil, malignant, and repugnant things. So the courts focus solely on the positive, man-made law, rather than on any idea of natural law.
  2. It is possible for the courts to come up with rulings that are based on junk science, such as Brown v. Board of Education in which a study of attitudes towards dolls was taken seriously, and aided in making the decision.*
  3. The judge can also choose to create law, “legislate from the bench,” by issuing prescriptive policies. The most egregious recent example of this was Justice Roberts decision that Obamacare was a tax rather than a penalty. Since the “tax” only kicked in upon failure to comply it was clearly a penalty, not a tax. Roberts evidently felt that he had a stake in preserving this law, and essentially rewrote the law.
Now this can be a prescription for judicial oligarchy. The court ultimately substitutes for the legislature, and imposes its own will upon the people. Thomas Jefferson reacted poorly to Marbury and said that the Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.* Jefferson fulminated against the decision periodically for the rest of his life.

*Jefferson, Letter to Judge Spencer Roane, Nov. 1819
For more by Jefferson on Marbury

The Constitution is vague in some areas, perhaps deliberately so. Take for instance the prohibition against “cruel and unusual punishments.” Exactly what does that mean?
  1. Must a punishment be both cruel and unusual?
  2. What if it's cruel, but not unusual because it is widely practiced?
  3. What if it's unusual, but not cruel?
  4. How is the determination made? Is it by a poll of the world? A poll of the country? How do we accommodate changes in attitudes towards punishment?
You could multiply the list for ages, and not cover all of the ramifications of the prohibition. When a case comes before the Court, however, there is no practical limit to the court's ability to decide, on whatever grounds it sees fit, that a punishment is “cruel and unusual.” So it can decide that life without parole for teenagers is cruel and unusual, as is executing them. It can also get involved in the minutiae of prison administration and decide that prison overcrowding is “cruel and unusual.”

Because lawyers are lawyers, and are trained to argue that the worse is the better case, a charge first pressed against the Greek sophists, they have a knack for taking something like “Congress shall make no law&hellip,” and then arguing that despite the fact that it is an E type proposition, a universal negative, that it does not mean that Congress shall make no law. Or that speech includes nude dancing, or other silliness. Since institutions seek to grow and expand their power at the expense of other institutions, legislatures will seek out every vagueness, and every grant of power and authority, and seek to drive a truck through it. The Commerce clause served as the justification for much of the New Deal legislation. Now the New Deal did not, in fact, work. It took Adolf Hitler, Mussolini, and Tojo to rescue us from the Great Depression. The question as to whether the New Deal worked is not a legal question; it is a political question, and as such not subject to litigation. So the question is was the Court wrong in deciding these cases in such a way that Congress was able to create and enforce dictatorial decrees over people? I've already framed the question in a way that indicates my belief that it was wrong to so rule.

Necessary and proper, the general welfare,; and a few other phrases are also weasel words that are used in the Congressional Truck Rodeo. By invoking these words it may be possible for someone to say, ;it is necessary and proper and beneficial to the general welfare to do&hellip. You can fill in the blanks with any damn fool thing you want, however, nonsensical, evil, or malicious it is.

It might be possible for some future administration to argue that given the vast increase in the taxing power made possible under the ruling of Justice Roberts that something like China's one child policy could be justified as benefitting the general welfare, and that the legislation is necessary and proper to achieve that goal. An argument might be made that would go as follows:

  1. Population is growing at a steady rate, and threatens to overwhelm food supply, exhaust fuels, and lower the standard of well being for the population of this country and the world as a whole.
  2. It is therefore in the interest of the general welfare to limit population.
  3. To achieve this it is legislated that no family may have more than one child. No woman may produce more than one child in her lifetime.
  4. A woman known to be carrying more than one child must abort the excess children. A woman who carries to term more than one child must pay an excess child tax equivalent to 100% of her income for 10 years.
  5. Freedom of religion refers solely to private belief or to public ceremonial practice and no further.
  6. As a consequence of 5 there will be no religious exemption from either the mandated abortion, or the tax.
We have here a law that can be justified as Constitutional, but which is repugnant to the moral sense. It is also repugnant to what Hamilton described as the “tenor” of the Constitution.

The Constitution is not a “living” document, whatever that means. It is thoroughly and completely dead. If standards of what is cruel change, then it is for the states to incorporate the change, and for the courts to not rule on such issues until such time as the emerging social consensus becomes clear. If standards of decency change, it is for the local governments to recognize them as they emerge, not for the court to impose its standards, so that nine men/women decide what is fit for the nation. If new technologies emerge, do they imitate or mirror older technologies, older methods of disseminating ideas and information, then they should have the same liberties as those older methods. Things like that can be achieved without invoking a “living” Constitution. I'll be talking about other cases as part of my continuing education project, so bookmark this page for further updates.

Update July 22, 2012 I posted that little piece up above on an Internet mailing list. I thought there might be some lawyers on there who would offer opinions as to whether it would get past the Supremes. I didn't hear from any lawyers, that I know of, but I did find several liberals who endorsed the proposals, including the limitation of religious freedom. The most often cited idea was that Catholics need to give up their opposition to contraception and abortion for the good of the planet. In the process I learned several things.

  1. Anti-Catholic bigotry is alive and well.
  2. People are willing to subordinate personal freedom to “the greater good” at the drop of a hat.
  3. The idea that a person's religious faith should find expression in action, whether public or private, is accepted only when it meets the liberal definition of acceptable action. Ministers who march for civil rights, good; priests or nuns who march for the unborn, bad.
  4. Taxation is conceived of as non-violent, rather than as the violent expropriation of property that it is. If you don't think taxation is violent, ask Al Capone or Wesley Snipes about the men who showed up to escort them to prison.
  5. A woman's right to choose extends only so far as she has the right to choose to abort. It does not extend to her right to choose multiple pregnancies. Many people evinced no discomfort with forced abortions.
  6. There was no willingness to entertain the ideas that:
    1. Population might not grow to Malthusian limits;
    2. Food production, mineral production could grow, or alternative resources be developed;
    3. Population could be shifted through means such as space colonization, etc.
  7. The general welfare was accepted as a valid rationale for any violation of individual liberty or freedom of conscience.

Here you have the liberal view of human rights as subordinate to the doctrines and whims of the moment.


Hamilton, Alexander; Madison, James; Jay, John (2011-06-19). The Federalist Papers [Illustrated] (Kindle Locations 6918-6924). MacMay. Kindle Edition.

Hamilton, Alexander; (Kindle Locations 6935-6939).

Hamilton, Alexander; (Kindle Locations 6943-6946).

Hamilton, Alexander; (Kindle Locations 7182-7190).

Hamilton, Alexander; (Kindle Locations 7232-7235).


*While Brown may have reached a correct decision on both moral and legal grounds, the acceptance of the doll experiment as a serious reason for overturning Plessy was flawed. It would have made more sense to look into the history of discriminatory statutes to determine whether such legislation assumed within itself the concept of inequality, or if some discriminatory legislation does not. It would seem, based on the little that I know, that the laws of Manu postulate the inferiority of certain castes, while the isolation of ancient Israel and Israelites from their gentile neighbors does not necessarily imply the inferiority of those neighbors.