Saturday, April 7, 2018

What would Patrick Henry's opinion of the Incorporation Doctrine be?

Founding Father Patrick Henry famously proclaimed "I smell a rat!"

What did it smell like? What was that rat's name? What was the rat's color: brown or grey? What was the rat's purpose? The rat's purpose really is the only important question here. I asked the other questions mainly in jest.

Welcome to the 6th and final posting in this series examining the claims that progressives make in regard to Marbury vs Madison. In parts 1 through 5, I mainly examined some of the inconsistencies relating to the progressives' claims. Here in part 6 I highlight where the problem actually exists. To put it simply: It's not Marbury that's the problem, it's the Incorporation Doctrine.

So, let's start here: what was the rat's purpose? In 1789, not everybody was so willing to trust the newly formed Constitution that had just been forged in Philadelphia. The rat, Henry believed, was a move toward tyrannical government. This post directly relates to the last posting in this series, in that the purpose of a bill of rights is central, and its purpose is as a limitation.

Why did Patrick Henry and others demand a bill of rights? In Patrick Henry's view, the Bill of Rights was necessary because it's function, it's only function, was to limit the power of the general government about to be established. Henry believed the Bill of Rights to be rat poison.

But wait a second. The courts tell us that because of the Incorporation Doctrine, the Bill of Rights UNLIMITS the government's power to command the states? What would Patrick Henry think of that? What would Patrick Henry say about the courts invention, this Incorporation Doctrine, which they claim is related to the 14th amendment,(but in reality is not, read the debate notes when they created the 14th amendment) and now the Bill of Rights is being used as a weapon against the very states he wanted to protect, with the very same Bill of Rights!

Think of that. Patrick Henry must be rolling over in his grave in the context of the notion of this Incorporation Doctrine. So for those who may not know, what is this Incorporation Doctrine anyways? Here is how the lawyers at the American Bar Association describe Incorporation:

“Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government,” wrote the Court.

Emanations and penumbras, my friend, emanations and penumbras. Notice the slimy language of this quote? It says "enforceable against them" ("them" being the states) and also "against the Federal Government". Now I may have been born last week, but I'm not a fool. Which court wrote this anyways? Oh yeah, the Supreme court. That's from the case Mapp v. Ohio. But there's just one problem with this. This is a Federal court saying this. So no, the Bill of Rights in the Federal Constitution is not being used both ways, it's expressly being used as a weapon against the states and only the states. Don't think I'm stating my case properly?

What's the most notorious incorporation case in U.S. history? If you said Roe v. Wade, you are correct. A cursory examination of the effects of Roe lead to an undeniable truth: Roe has placed no limitations upon the federal government. The feds have found nearly unlimited powers at the expense of the states and localities. There's nothing limiting the feds here, they are unlimited!

The point is this. The progressives are fantastic liars. They have many people hating on a case, Marbury v. Madison, that is (if you read the text of Marbury) not in any way related to the judicial problems we currently have. Judge Marshall specifically states just the opposite: We judges do not have the power to make law as we choose. What that means is that America would be a great place if we lived in a Marbury world, but we don't. We live in an Incorporation world.

The Bill of Rights exists expressly and solely to limit the power of the federal government and allow the states to flourish. But since the creation of the Incorporation Doctrine, the Bill of Rights exists expressly and solely to steamroll the state governments. Take a look at another Incorporation case, Everson v. Board of Education with its misquoted "Wall of Separation". How would Patrick Henry, a deeply Christian citizen, how would he respond to not only the perversion of the Bill of Rights into a weapon against his state and other states, but used expressly as a weapon against the faithful? When the Bill of Rights was first submitted to the states, there were 12 recommendations. But it wasn't just a randomized list of 12. It also had a preamble. That preamble states:

The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best ensure the beneficent ends of its institution; (source)

Did you notice that the only capitalized word is "Constitution"? Read the source, that's not my work.

The problem we have is not Marbury. It's incorporation. The Incorporation Doctrine takes the 14th amendment out of context, it takes the Bill of Rights out of context, it completely ignores the original stated purpose of the Bill of Rights per this preamble, and it takes most of our other Founders' writings out of context as well. Consider this: When the Supreme Court cited Jefferson's Danbury letter in the 1878 Reynolds case, how many words did they quote? One hundred and thirty five. How many words of Jefferson's Danbury letter were used in the Everson case? Eight. That's all, just eight. They will take whatever out of context that they have to if it justifies their social justice cause.

With the Incorporation Doctrine, the Bill of Rights gives the federal government unlimited powers to lord over the states and ultimately, to lord over you. That's not what the Founders intended. That's not what the preamble indicates. That is more than anything else, was what Patrick Henry feared. Henry's proclamation may be the most visible personal example of the fears our Founders truely felt, but not a single one of the Founders had it in mind for the Bill of Rights to be used to squelch the states. The Bill of Rights was invented was to squelch the general government.

As I stated toward the beginning, Henry found a rat, and he believed the Bill of Rights to be rat poison. But because of the Incorporation Doctrine, the Bill of Rights is now poison for the states and food for the rat.

Saturday, March 24, 2018

What is the purpose of a bill of rights anyways? To expand government? Or to limit it?

In parts 1 through 4 of this series (Scroll to the bottom for more detail about the parts) I have been examining progressivism and its relation (or lack therof) to the 1803 court ruling Marbury vs Madison.

Here in part 5, I just want to ask two questions. First, what is the purpose of a bill of rights? We could be talking about the Bill of Rights of the Federal Constitution, or the Bill of Rights that exists in your State constitution. It doesn't matter really, where that bill of rights happens to exist.

What is it for: Is it there to expand the power of government and give them more power over jurisdictions which more local than itself? Or is said bill of rights there so that the people know what they should expect, and therefore to limit the power of government?

I'll state it plainly what I believe: I believe that a bill of rights exists for the purpose of setting limits to the government to which it is attached.

My follow up question is this: If a bill of rights, intended to limit government authority, is perverted into becoming an object that expands governmental power, is it no longer a bill of rights for the people? Does it then become a bill of rights for the government? As we come to the conclusion of this series, this is a very important question to cover.

In part 1 of this series, I asked one very simple question: Are progressives telling the truth about Marbury?

In part 2, I examined the gap between the activist cases of the early-mid 1900s and the 1803 ruling.

In part 3, the negative and positive aspects of how the Marbury ruling functioned were examined.

In part 4, the constitutionality of the judiciary act was examined.

Yes, this series is getting rather long, but I assure you it is going somewhere.

Thursday, March 15, 2018

The Origin of Progressive Hostility

There's an article recently written on a website Quillette titled The Psychology of Progressive Hostility which is very well written, I highly recommend it. One part of the article asks the following question: "So how and why have these activists become so intolerant and horrible to deal with?"

It is questions like that that this blog are built around. Due to the progressives' complete dominance of academia(history) and media(journalism), I think it is safe to say that progressivism is the least understood ideology of modern history.

For what the article is and how it is set out to examine what it examines, I could not have written it this well. That simple, I could not even have come close. That's not to say it isn't without fault, for example, when I see someone quote Mill I immediately roll my eyes. However, my main goal is to highlight the origin of progressive history, which is conspicuously absent from the article.

In short, the origin of progressive history can be summed up into one single word: rejection. That is the origin of progressive hostility.

That's it. Rejection. Before being rejected, progressives loved and I mean LOVED America - at least, loved its government and what they could do with it. Read speeches from Woodrow Wilson or Theodore Roosevelt, there is no bitterness whatsoever to be found. Progressive ideology was at its height, they were open about being progressive, and nobody could stop them, and their tone reflects this.

That came to an end in the election of 1920. There is so, so much to learn from the election of 1920. The progressives were beaten so badly, that the only way progressives could become viable again is to put on a mask and usurp the word "Liberalism" as their new home. This happened by 1932.

Think about that. Who is your worst arch-nemesis? What if Rand Paul had to wear a mask of that guy - his next door neighbor who put him in the hospital, or if Steve Scalise had to wear a mask of James Hodgkinson? What if Mahmoud Ahmadinejad had to wear a Benjamin Netanyahu mask? What if Donald Trump had to wear a Hillary mask?

You get the idea. Your rejection is so complete that you had to look like the exact opposite, otherwise face extinction. Yeah, that would piss you off too. That's what the progressives have had to deal with since the 1930s. That is the origin of progressive hostility.

And to top it all off? The progressives first time in 90 something years that the they start to take their "liberal" masks off and start calling themselves progressive again, as represented by the Hillary campaign. And they lost again. To Donald Trump of all people! (Who in the progressives' minds, is the lowest of the low)

Yeah. You'd be hostile too. This must mean that you need to wear a mask again for yet another 90 years. Who WOULDN'T be pissed and hostile about that? This is why their pitch gets so much worse after 2016. It's 1920 all over again! I challenge anybody, ANYBODY, go read Wilson's or TR's speeches, read their books. You will not find any bitterness. Contrast that with the progressives of today, and the comparison could not be more stark.

There's a strong link between rejection, bitterness, and ultimately hostility. And this is their history. The progressives own it.

Saturday, March 10, 2018

Marbury v. Madison: Was the 1789 Judiciary act actually unconstitutional?

In part 1 of this series, I asked one very simple question: Are progressives telling the truth about Marbury?

In part 2, I examined the gap between the activist cases of the early-mid 1900s and the 1803 ruling.

In part 3, the negative and positive aspects of how the Marbury ruling functioned were examined.

Here in part 4, we will look at the constitution and look at the judiciary act.

Since we know that progressives don't tell the truth about anything, then we have to start from square one. Why this is important, is progressives have long linked judicial activism to Marbury as the home of every scheme they've devised, but the more I look into it, the less I can see this is true. I'm quite certain you won't conclude that the progressives are being honest either. Why would anybody ever conclude that?

There are three major pieces here. First, here is section 13 of the judiciary act:

SEC . 13. And be it further enacted, That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. And shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul, or vice consul, shall be a party. And the trial of issues in fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

Then, here is a portion of article III, Sec. 2:

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.

Finally, William Marbury filed his claim straight to the Supreme Court under section 13.

It does appear to me that the 1789 act grants extra-constitutional powers in regard to mandamus. That puts congress in the wrong here. It does not benefit the liberty of the people to have any branch of government stepping outside of its constitutional bounds, be it the courts, congress, or the president.

Understanding the constitution as well as the judiciary act itself does not vindicate judge Marshall. Maybe to you it does, but that's not why I'm doing this. Progressives use the courts to create new legislation in a positive way, wheras Marshall did no such thing. The constitution does not, in fact, give the legislature the right to say that the courts can originate mandamus.

That would require an amendment. Congress does not have the ability to amend the constitution on its own by simple legislation and neither do the courts. Looking at the text of what Marshall actually wrote, that was not his intent nor his result. The progressives have indeed pulled a fast one here.

Monday, February 26, 2018

Is "Judicial Review" a negative power or a positive power?

In part 1 of this series, I asked one very simple question: "Are progressives telling the truth about Marbury?"

In part 2, I examined the gap between the activist cases of the early-mid 1900s and the 1803 ruling.

Here in part 3, the negative and positive aspects are examined.

The negative power to say something is unconstitutional is clearly a different animal than the positive power of cooking up whole new legislation. It is not uncommon to read or hear judicial review cast as a veto or a nullification - a negative - and with a view on Marbury veto and nullify are two words which are both fairly accurate terms to use.

I'm not saying that I wholly agree with judicial nullification of laws, however, we have yet another huge gap to examine. That gap is the gap between negative judicial vetos, as exists with Marbury, and positive judicial law creations, such as Miranda v. Arizona. Is that a bad example? How about Roe v. Wade? I'm sure I could find others where "the law of the land" has absolutely zero legislation backing it.

The point is this: We have three separate terms which I will examine here. Those terms are

1) Judicial Review

2) Judicial Activism

3) Judicial Supremacy

There is a huge difference between a case that is horrible and rotten such as Dredd Scott and a case like Miranda. Dredd Scott, while one of if not perhaps the worst case to ever come out of the court, is not a judicial review case.(or more precisely, I have not found any source which calls Dredd Scott a judicial review case) It is, at the end of the day, "simply" horrible judicial outcome. Miranda, on the other hand, is an affront to the constitution. Ironically, it's actually also an affront to Marbury.

Can anybody point to me the new law that was manufactured out of Marbury? Because I can't find any. I can find, however, a law that was negatived by Marbury on the grounds that said law was unconstitutional.

This is a negative vs a positive. This is important to understand, because Judicial Supremacy means that the judiciary is the most supreme, even more supreme than the constitution itself. If a judicial body has the ability create new legislation and to re-write the constitution any time it sees fit, then it is practicing judicial supremacy. The constitution is not supreme here, the court is supreme.

The concept of judicial activism really has no definition and for many, the term is thrown around based on if one does or does not like the results of any particular case. Anything can be activist, regardless of the constitutional aspect.

Finally, the concept of judicial review. Let's be real, not only did the Founders discuss it at the Convention, it also existed prior to Marbury.(See the Hylton case) At the end of the day, Marbury manufactured no new laws out of whole cloth. The power to negative is clearly and plainly different than the power to positive.

Miranda created new law. Roe created new law. Obergefell created new law. There are dozens of others.

Let's cite a little bit of Marbury here. Marshall wrote:

The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Please note, that Marshall does not say "You congressmen do not have the power to positively create new constitutional statutes without amendments, but we judges do!" "You congressmen do not have the power to place yourselves above the constitution" "BUT WE DO!!!" He never says that, and he deliberately says the opposite. Here is more Marshall:

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

This is the supremacy clause of the constitution that he is referencing here. Note that in the supremacy clause, the laws(meaning the legislature) and treaties are mentioned second. The courts are mentioned last.

These are not insignificant things to ponder when you consider how progressives position themselves. We have a big gap between Marbury and when the courts started, consistently started, creating new laws of the land.(as a non-legislative body) Judicial review may be a problem we need to solve and dial back, but clearly what the courts are doing today in the 21st century and what they started doing in the early-mid 1900s is not in any way because of the events that transpired during the course of Marbury v. Madison, no matter how many times progressives may loudly shout as to its affirmative.

Sunday, February 25, 2018

When did the courts stop looking at Marbury v. Madison as "that mandamus case"

In part 1 of this series, I asked one very simple question: "Are progressives telling the truth about Marbury?"

Since we know that progressives don't tell the truth about anything, then we have to start from square one. Why this is important, is progressives have long linked judicial activism to Marbury as the home of every scheme they've devised, but the more I look into it, the less I can see this is true. And if Marbury is not the source of the problem, then we need to identify the real cause. You don't stop cancers with flu medicines and bandaids.

An interesting thing occurs if you look into some of the past court rulings and how/why they either reference or cite Marbury. For clarity, I use "reference" to mean that the judges are aware of Marbury, they are talking about Marbury, but it doesn't necessarily have any direct bearing and its not being used to move the ball down the field. I use "cite", on the other hand, in the context as how Marbury is used in the case Cooper v. Aaron: they cited Marbury as a direct order of precedent for their current action in the case.(My use of cite/reference may or may not be how it is legally used)

Now, progressives tell us today that Marbury is so important, it's such a pinnacle, it granted all of these wondrous powers and it even delivered a new loaf of bread to boot. But then why did the courts for so many years merely look at it as some compartmentalized mandamus case with no other real context? Take for example the 1838 case of Kendall v. United States and others; Mississippi v. Johnson (1866), Ex Parte Bollman and Ex Parte Swartwout (1807), Kendall v. Stokes (1838), United States v. Schurz (1880), and Poindexter v. Greenhow (1885). In some cases, such as Insurance Company v. Comstock (1872) and Reeside v. Walker (1850), Marbury is nothing more than a footnote at the end of the decision, as opposed to a more central part of the opinion/dissent reasoning.

You will notice by the dates above, that I focused in on cases that existed prior to the perversion of progressivism. Prior to basically 1900. I am sure there are other court cases, but you get the point.

I do want to make it plainly explicit here, I am only taking a cursory look into cases which are coming into contact with Marbury, and looking at what these cases are saying and the context of how they are saying it. Some of these cases are thousands and taken together tens of thousands of words long - I haven't read all of these word for word. However, it does stand to reason that we have a huge gap between 1803 and the 1930s before the courts truely start becoming this out of control monstrosity. Well Marbury wasn't decided in 1929!! So why the gap? Why does this over 100 year gap exist between when the courts supposedly went out of control, to when they finally decided to go out of control? Shouldn't this big black hole gravity-well be nonexistent? Shouldn't it be 1805 and 1809 when all of this is occurring, and not 1958? None of what the progressives assert makes any sense at all when closely examined, particularly with a calendar in hand.

Now in most instances, a mandamus case that is about mandamuses is going to cite Marbury in the context of mandamuses. But outside of the context of mandamuses, it appears to me that the first case that actually cites Marbury in some meaningful manner is the case Mugler v. Kansas. (1887) So you mean to tell me that Marbury was stuck in the mandamus box for 84 years? Yes, Mr. Progressive, that Marbury case is such a pinnacle of judicial activism!

The Bollman Swartout case is a particularly amusing read, at least a line like this:

The original jurisdiction of this Court is restricted to cases affecting ambassadors or other public ministers and consuls and those in which a state shall be a party. In all other cases within the judicial powers of the union, it can exercise only an appellate jurisdiction. The former it possesses independently of the will of any other constituent branch of the general government. Without a violation of the Constitution, that division of our jurisdiction can neither be restricted or extended. In the latter, its powers are subjected to the will of the legislature of the union, and it can exercise appellate jurisdiction in no case, unless expressly authorized to do so by the laws of Congress. If I understand the case of Marbury v. Madison, it maintains this doctrine in its full extent. I cannot see how it could ever have been controverted.

Because, clearly, the courts looked at Marbury as a limiting factor, and not one that grants all of these wondrous powers and a loaf of bread. This is also the case where I got the line "the mandamus case" from, as if Marbury wasn't viewed to be all that consequential at all to prior courts. "Oh that was just that mandamus case, that was no big deal. Moving along." And just the fact that it was viewed as a mandamus case only, also brings its own limitations. Kendall uses similar language:

On the legislature was imposed the duty to give it effect; it was wide as the land, and extended to every portion of it, and by the Judiciary Act of 1789, section 13, Congress attempted to invest the Supreme Court of the United States with the power to issue writs of mandamus to persons holding office under the authority of the United States. But the Constitution having restricted this Court to the exercise of certain original powers, and this not being amongst them, it was holden in Marbury v. Madison, l Cranch 137, so much of the act was void.

Isn't it interesting? Everybody wants to be limited by and to the Constitution in the earlier years.

Now I can only imagine that some will reply "Yes, but, that's only because the courts did not at first realize what they truely had on their hands." Is that so? Or is it that the progressives went on a treasure hunt way after the fact for anything that they could take out of context, to justify their usurpations?

I lean strongly toward the second.

Friday, February 23, 2018

Marbury v. Madison: The one place progressives are telling the truth?

Progressives claim that judicial activism was born with John Marshall's most well know ruling.

But we all know that progressives don't tell the truth. So then what actually is Marbury all about, and what are its true results?

Since progressives are not honest, where did judicial activism truely get established? What is the difference between judicial activism and judicial review?