Lies of Omission

Wednesday, February 5, 2014

Criminal Court

Almost the first act of the Supreme Court was treason. In Marbury v. Madison, we see the convoluted, political thinking of the time. True, it was a moment rare in the history of nations that a national power structure must define itself. But, a closer look at the actual case reveals the self-serving, illogical conclusions typical of the Supreme Court today.

Ironically, the part of Marbury v. Madison that the Court found unconstitutional, which gave it the ability to interpret rights, rather than merely rule that a law is either Constitutional or unconstitutional, was finding that when the Judiciary Act of 1789 was passed that it gave the Supreme Court more jurisdiction than the Constitution allowed.

The correct ruling in this case should have been that since the Supreme Court did not have jurisdiction in the case that it was in appropriate for it to hear it unless it heard it as a consequence of a lower court ruling. As is clear, by Article III, Section 2, Clause 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.

Marbury's case claimed that he had a right to his commission as a Justice of the Peace, not an Ambassador, not a Minister or Consul. He was not part of a case wherein a state was a party and so, the Supreme Court never should have heard the case. It did so to make a point as is clear in this look at Marshall's reasoning from Streetlaw:

Chief Justice Marshall understood the danger that this case posed to the power of the Supreme Court. Because Madison was President Jefferson’s secretary of state and Jefferson was head of the Democratic Party while Chief Justice Marshall and Marbury were Federalists, President Jefferson was almost certain to direct Madison to refuse to deliver the commission to Marbury. If the Court required Madison to deliver the commission and Madison refused, the Court had no power to force him to comply, and, therefore the Court would look weak. If the Court did not act, it would look like the justices made their decision out of the fear that Madison would not obey their decision.   

Marshall wanted to establish the role of the Supreme Court as having the power to interpret the Constitution. It might have been their role to interpret laws in accordance with the plain language of the Constitution. But, not to interpret the Constitution itself, certainly not to interpret definitions of words in order to arrive at opposite definitions and therefore opposite conclusions.

Few know the outcome of the Marbury v. Madison case. They know that it established the Supreme Court's right to interpret the Constitution. It is what is taught in school and the Court has no reason now to look on the actions of John Marshall as anything other than appropriate.

The ruling is almost as insane as the justifications for the Supreme Court to have ruled in the case at all. It was agreed by the Court that Marbury did indeed deserve to receive his commission, that all the functions of government had taken place, but that the Court did not have the right to issue a writ of mandamus and so ruled that Marbury had a right to his commission, but that the Court could not force the Secretary of State (Madison) to deliver the commission to him.

Further, it ruled, without jurisdiction, that the part of the Judiciary Act of 1789, which has governed these federal courts for over two hundred years almost without change, was unconstitutional in the fact that as part of the law it gave the Supreme Court the ability to issue a writ of Mandamus, which the Court claimed that was a power not given to it by the Constitution. Yet, the Law was never vacated. Since the whole of the law was not vacated, how is it possible that the Court edited the law? It can send the law back to the legislature to bring it into compliance with the Constitution, but justices cannot be allowed to edit laws, rewrite laws, etc.

Somehow, in all of this, the court failed to recognize that it did not have jurisdiction to hear the case at all, much less rule on particulars of it, including accepting for itself, for eternity, the right to interpret the Constitution. This case is how we got here, it was the first act of treason and it has followed a path through Dredd Scott, Roe v Wade and the Obamacare rulings to show us that these Justices are criminal. They have corrupted our system from the start and their rulings have led us into slavery, denied to us our rights and relegated us to positions below that of citizens.

14 comments:

  1. This case is how we got here

    Excellent. I grew up in Marshall, Virgina, though it was Salem during the Late Unpleasantness.

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  2. When there is a contest as to the constitutionality of a law, or the interpretation of a law, enacted by Congress, and signed by the President, which of the two will determine what the proper interpretation is? The Congress, since the enacted the law? Or, the President, since he signed the law?
    If there are three branches of government, which one should be the final determinant of the outcome of such a dispute?
    If not the judiciary, then there is no reason, at all, for a judicial branch of government.
    The Congress is motivated by politics (election and re-election). The President os motivated by politics (election and re-election). The reason for the permanence of the judiciary, especially the Supreme Court, is to remove it from that realm of politics that infects the other two branches.
    If you read the decision carefully, what Marshall said was that when there was a dispute as to the intent of a law enacted by Congress and signed by the President, the Court was the only party that could rule as to which side was constitutionally correct.
    It was never as broad as many suggest, in 1803. The changes since that time were not the fault of Marshall, as he dealt only with the problem then in dispute, though he did establish the judiciary as the arbiter in the dispute between the two.
    The case was brought to that Court by Marbury, there was no contest as to jurisdiction by Madison. Who can say now that both parties did not presume that the jurisdiction resided with the Supreme Court?

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    1. It was recognized by Marshall himself, but that he ignored it because he wanted to make a point and establish the role of the court. When Marshall cited the Constitution, he acknowledged that he did not have jurisdiction. Yet, he only claimed not to be able to issue a writ of mandamus, glossing over the whole idea that he did not even have jurisdiction to hear the case, but it is clear that the Supreme Court did not.

      On what grounds do you give the Supreme Court jurisdiction in that particular case?

      I am not even arguing that the Supreme Court does not have the role of deciding whether something is Constitutional or not, perhaps it does, but it is this type of political decision that has marked the Court from Marshall on down to today.

      If the legislature passes an unconstitutional law and the president signs it and the Supreme Court decides that it is unconstitutional because it violates the clear meaning of the Constitution, its role is fulfilled, but Marshall went the next step and instead of vacating the law, he edited it, because the rest of the Judiciary Act of 1789 has remained law up until today.

      Where did that authority come from?

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  3. When we look at the structure of the courts, today, we assume that it was always so. However, back then the Justices were also circuit judges. The jurisdiction of the Circuit Court was almost synonymous with that of the Supreme Court..
    Judiciary Act of 1789
    Chapter XX, (relevant parts)

    SEC. 4. And be it further enacted, That the before mentioned districts, except those of Maine and Kentucky, shall be divided into three circuits, and be called the eastern, the middle, and the southern circuit. That the eastern circuit shall consist of the districts of New Hampshire, Massachusetts, Connecticut and New York; that the middle circuit shall consist of the districts of New Jersey, Pennsylvania, Delaware, Maryland and Virginia; and that the southern circuit shall consist of the districts of South Carolina and Georgia, and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court, and the district judge of such districts, any two of whom shall constitute a quorum: Provided, That no district judge shall give a vote in any case of appeal or error from his own decision; but may assign the reasons of such his decision.
    SEC. 11. And be it further enacted, That the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and the United States are plaintiffs, or petitioners; or an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State. And shall have exclusive cognizance of all crimes and offences cognizable under the authority of the United States, except where this act otherwise provides, or the laws of the United States shall otherwise direct,...
    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.

    So, the authority for the Mandamus is in 13, and in the assignment of Circuits, the District (Washington City) was not addressed.

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    1. Except that it was this writ of Mandamus that Marshall found unconstitutional. And, he was acting as a Supreme Court Justice not on his circuit and acknowledged that much. He wrote:

      The authority … given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution….

      Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the Constitution, is void….

      I'm fine with that, find it void. It is not the role of the Court to find that which is unconstitutional to be void that I find fault with. It is the editing of the law, re-writing the law from the bench that I find offensive to liberty. Find the law void and let the Legislature re-write it without the offending language and re-pass it.

      In this instance Marshall did both: he took a case the Supreme Court had no right to hear except in their appellate duty, then re-wrote the law to let it all stand except the writ of Mandamus that he found unconstitutional. He should never have taken the case at all, but he wanted the opportunity to set the role of the court and that is offensive to liberty. Find another case.

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    2. In Marshall's own words and proof that he must have been cognizant of his lack of jurisdiction:

      When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.

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  4. The dilemma, at the time, was that the United States was venturing into an area untrodden by any other country or government. It was an experiment in self government.
    The Constitution was written with just over 4,000 words. Those few words created a government. There were many areas that had to be resolved, and over the next few decades, they were resolved, quite often by judicial decisions. The decision had 2.5 times as many words.
    A Mandamus is a command for an officer of government to do what it is instructed to do. To do so, that court must be superior to that officer that it is to instruct. To rule on constitutional does not assume the superior authority top command, only to judge.
    So, by judging, Marshall did not assume superiority over the other branches, only the authority to judge constitutionality.
    A similar problem arose in 1861, in Ex Parte Merryman (17 F.Cas 144)), where Taney found that the Court could not enforce its decision on the Executive. And in this instance, the Court was trying to force a protect (right) specifically identified in the Constitution. The Executive refused to respond, directly, though did, over time, mostly comply.
    I return, also, to the concept,. In a Tripartite government, if two branches disagree, who can arbitrate, or resolve, the dispute?
    To point out a problem is easy. To tender a solution is more often omitted in such criticisms.

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    1. So, if the Supreme Court and President disagree on the Constitutionality of a law the House or the Senate might arbitrate that disagreement?

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  5. Excellent review of Marbury and accurate as well.

    For your next act, I'd like to see your review of McColloch vs. Maryland, that other case that illegally expanded the power of the US government, by the same Chief Justice that acted unlawfully in Marbury.

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  6. According to what Marshall established in Marbury, it is only after there is a dispute between Article I and Article II that Article III has a role to play.
    Could the President have a dispute with the Court? How could that occur, since the Court requires to parties upon which to hear and make judgement?

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  7. Let's get in to some interesting, though little known, facts regarding the then relationship between the citizens and the federal government. These will be excerpted from "Habeas Corpus - The Guardian of Liberty" (http://www.outpost-of-freedom.com/hh06.htm)
    Begin with next post.

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  8. We will begin in the year 1833,... Mr. Barron owned a dock in Baltimore, Maryland. The City of Baltimore, in dredging the river, made the area in front of Barron's dock too shallow for normal traffic. Barron filed suit against the City of Baltimore, arguing that under the Fifth Amendment to the Constitution, his property was taken without "just compensation". This case was heard by the United States Supreme Court, Chief Justice Marshall giving the opinion of the Court. Understand that in this decision, the "general government" refers solely to the national government, and that "local government" refers to state and/or lesser governments. Barron v. City of Baltimore, (32 U.S. 243):
    ...The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated... The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument.
    If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves.
    So, the Constitution was only between the people and the general government. The people of each state were free to decide what constitution and laws best suited them.
    Marshall then explains the evidence in support of the proposition of that separation by reference to Article I, Sections 9 and 10, of the Constitution:
    If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the state; if, in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed…Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safe-guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.
    The concerns that lead to this separation of powers are explained:
    Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general government- [and] not against those of the local governments…These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.
    We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.
    What? The Constitution does not foreclose protection from the state government; only from the national government. Well, that is exactly what Chief Justice Marshall said.

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  9. Continuing with the relationship of the people to the federal government, this touches on limited jurisdiction:
    Perhaps another way to understand the limitations of the national government, is to look to a law enacted in 1825. Article I, section 8, clause 17, grants Congress the power "to exercise exclusive legislation" over lands ceded to the United States by the state in which the land lies.
    "An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes. (March 3, 1825)"
    "That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully..."
    Now, this law was enacted just 35 years after the first Congress sat under the Constitution. What did they know that we do not know? For them to punish you for crimes against property of the United States, the property had to be on land ceded to the United States, and jurisdiction also ceded to the United States. That means the state had to relinquish its jurisdiction over the property. Can there be any doubt that the Congress, in 1825, understood the limitations of their authority under the Constitution?
    Perhaps now we can understand why it was decided that the Constitution did not extend its powers to the detriment of the state; why Congress should enact a law to protect its property only if that land where the property was had been ceded, so that the national government had jurisdiction over that land. By looking at what Justice Marshall said, in Marbury v. Madison (5 US 137) in 1803:
    "Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void. "
    Now, this was not a novel idea on the part of Justice Marshall, because in 1787, before the Constitution was ratified by the states, the North Carolina Supreme Court addressed the state legislature enacting a law that was in contradiction to the state constitution, when they said, in Bayard v. Singleton (1 N.C. 42):
    "But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established. "
    Interestingly, they recognized that should such a law be upheld, it would have the effect of dissolving the government created by the North Carolina Constitution because that government violated the instrument of its own creation. Does that concept also apply to the United States Constitution?

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  10. Jefferson made it clear that the Court was NOT to have final say or it would be an Oligarchy.
    America was established under FOUNDERS LAW, not the new US Constitution. It is Founders Law we should have been obeying all this time- not what comes out of DC ! DC has no jurisdiction or authority outside of their own DC borders ! DC cannot make laws over the states ! Ther is no such thing as "Federal Law" in the states !
    "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." -- Thomas Jefferson


    "When injustice becomes law....Resistance becomes DUTY !" - - Thomas Jefferson


    "If a law is unjust, a man is not only right to disobey, he is obligated to do so." - - Thomas Jefferson



    "It is the people, to whom all authority belongs." -- Thomas Jefferson


    "The ultimate authority ... resides in the people alone." -- James Madison


    "When injustice becomes law....Resistance becomes DUTY !" - - Thomas Jefferson

    "If a law is unjust, a man is not only right to disobey, he is obligated to do so." - - Thomas Jefferson


    The people are to have the same weapons as the military !
    Govt is NOT to be armed - only the PEOPLE are !
    When it is in the reverse - that is a Dictatorship, not freedom.



    "Congress have no power to disarm the militia. Their swords, and every other Terrible implement of the soldier, are the birth-right of an American ... The Unlimited power of the sword is NOT in the hands of either the Federal or state Governments, but, where I trust in God it will ever remain, in the hands of the People." -- Tench Coxe (1755-1824) American political economist 20 Feb 1788


    These are just a few of Founders Law. The Founders did not write the new US Constitution - they only wrote the Bill of Rights that they had to fight long and hard to get added to the Elite's new Constitution. THey were tricked and lied to to get that convention going supposedly just to revise a few things in the standing Articles of Confederation that was their Constitution at the time.. So upset by the trick when they saw a whole new Constitution was being written, that they did not agree with, that many of them refused to sign it (ratify it) - and they didn't. They correctly saw the new Constitution as a set up for a Dictatorship. Not many write about that today as Lincoln burned most of our early hisotry to cover up his own crimes and Treasons and war crimes and the fact that he took TWO American nations that the Foudners establsihed America to be from the beginning, into one huge nation under HIM, that the Founders never wanted to happen. They had left a Europe like that and did all they could NOT to let it happen here. But Lincoln's coup on DC in 1861 changed and REPLACED everything our Founders established. OUT TRUE history is much richer and exciting then the fabrications that all today have been indoctrinated with by the US DC Govt run schools ! If there was room here, I'd give the details of how Lincoln did it and where the saying "do-nothing Congress" comes from, but let's say Obama is copying Lincoln to a tee. Hitler idolized Lincoln as well ! Lincoln is why we are having all the problems we have today - it all began in 1861. And we are repeating history again. But the Communist OWG actually ACTIVELY began in 1861.

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