Every time there's an open spot on the Supreme Court, a political free-for-all erupts to fill it. Those who believe they have a claim on your life, liberty, and property take the nomination of a Supreme Court justice very seriously, indeed. It's no wonder, given the power those calling themselves "government" currently enjoy.
Almost none of this power is constitutional; even less is legitimate.
In the 1803 case of Marbury v. Madison the Supreme Court decided to steal for itself a power not granted by the U.S. Constitution: to be the final arbiter on what the Constitution allows government to do. They stole this power so long ago that almost no one even realizes the coup took place.
That was the end of the Constitution as the operating manual for the U.S. government. The brakes on government were disabled, and now almost every part of your life is under some form of government control. Everything not prohibited is mandatory.
For any branch of a government to decide how far that government is allowed to control or meddle in your life is a conflict of interest. No one working for government should ever have this power.
The people are supposed to have power over government, not the other way around. As has been said many ways, by various people: when government fears the people there is liberty; when people fear government there is tyranny. If you have ever stopped to wonder whether something you were about to do was legal or not, though it would harm no person or private property, you've felt the birth of tyranny.
How did we get here?
Constitutionality isn't difficult to judge. The Constitution wasn't written for lawyers, but for average people. It's not up for interpretation or "judicial review", it says what it means. If a law limits what government can do, it is probably constitutional. If it limits what you can do, or would force you to do anything, it is almost certainly unconstitutional. Read the Constitution yourself if you have doubts.
Only the Supreme Court, acting outside what it was allowed to do, could have misinterpreted the document so badly, leading to a government which is at least 95% unconstitutional, and laws which are approaching 99% unconstitutional. Just kidding-- it's much worse than that but few would believe the truth.
Under these conditions, you don't have to wonder about the hysteria surrounding a Supreme Court nomination. It's a consequence of the power the Supreme Court has but was never intended to possess.
Congrats on getting the news about Marbury v Madison into the wider media!
ReplyDeleteIt was an extremely cunning trap for Jefferson. What Marbury tried to do was clearly unconstitutional, but the very act of declaring it so was also unconstitutional! - for there is no power purportedly granted in Article 3 for SCOTUS to declare what is, or is not, constitutional. In fact there are virtually no powers listed there at all.
Is it fair to say that the incident proves that limited government is impossible?
Limited government requires almost as much diligence on the part of the citizenry as a complete lack of archation -- a willingness to boot out of office people who try stuff like Marbury vs. Madison, then shoot out of office if the above doesn't work.
ReplyDelete"Limited" government actually requires MORE diligence than anarchy. Not only do we have to worry about the common criminals, we also have to pay attention to a group of people with "legitimate" power and convince our neighbors to help us keep them accountable. It's far easier to defend yourself from an individual criminal or small gang than it is to defend yourself from a "legitimate" government.
Delete"Limited" government [sic] requires so much diligence that it has shown itself to be impossible.
DeleteI didn't mean "difficult", but "logically impossible."
ReplyDeleteI can't just locate the quote, but I'm pretty sure Jefferson saw the problem: if SCOTUS can declare whether a law is or is not constitutional, then ultimately government is not being controlled by voters and their congresscritters, but by a small bunch of lawyers appointed for life.
Democracy and the constitution are supposed to limit government; for this purpose let's leave aside whether they do so in practice or not. That's the theory, of limited government.
But if that small bunch can over-rule what the Demos decides, then it is instead an oligopoly. No limits. Yes?
By setting the Marbury v Madison trap, the founders (excepting Jefferson, I think) accomplished exactly that, exactly as they intended. Had they written it into Article 3, they would almost certainly have scuppered ratification.