i liked your title freedom for the change On 9/2/09, Daniel Seigler <[email protected]> wrote: > > The Marbury v. Madison Mantra > By Chuck Baldwin's Son, Timothy Baldwin > September 1, 2009 > > > This column is archived at > http://www.chuckbaldwinlive.com/c2009/cbarchive_20090901.html > > > [Note: My son, Tim, writes today's column. He is an attorney who received > his Juris Doctor degree from Cumberland School of Law at Samford University > > in Birmingham, Alabama. He is a former felony prosecutor for the Florida > State Attorney's Office and now owns his own private law practice. He is > author of a soon-to-be-published new book, entitled FREEDOM FOR A CHANGE. > Tim is also one of America's foremost defenders of State sovereignty.] > > The arguments against the power of the states to arrest federal tyranny are > > as predictable as the sun coming up in the morning, and they are as > philosophical in nature as the Declaration of Independence. One of the most > > commonly used arguments against such a State power is the United States > Supreme Court (US S CT) dicta opinion in Marbury v. Madison in 1803, > written > by Chief Justice John Marshall. Before getting into the misunderstandings > and misapplications of that infamous decision, we must first recognize the > source and character of Marshall's opinion. As Marshall himself admitted > that the US is to be a country of "laws, not men," we must establish that > Marshall's opinion does not equate to the "supreme law of the land" which > the states and individuals are bound to obey. If our submission only > requires that the US S CT speak, then we do not live as freemen, but as > slaves. > > Marshall was an ardent member of the Federalist Party (a pro-centralist > party) and served as the Secretary of State in the pro-centralist > administration of President John Adams, who appointed Marshall to the US S > CT in 1801 at the "midnight" hour before Thomas Jefferson was sworn into > office as President of the US. Marshall's nationalist opinions were no > secret either. Marshall believed that the US Constitution and Union were > formed by the aggregate whole of the American people, and not by a compact > of the states; that the Union formed "one nation, indivisible" and not a > confederation of states; that State sovereignty as expressed in the Tenth > Amendment equated more to a general idea than to any real applicable and > relevant State power over the federal government; that the Constitution > must > be liberally interpreted for the sake of expanding federal powers at the > expense of State sovereignty; and that the idea of State sovereignty was > literally ridiculous. By the way, even most self-called conservatives today > > probably subscribe to these political beliefs, not even knowing the real > historical facts behind such fallacious ideology. > > Concerning Marshall's philosophical belief relative to the formation of the > > USA, this historical fact must be admitted. It is crucially important for > our discussion today in America. Historian and politically-motivated > author, > Edward Samuel Corwin, said of Marshall in his book, "John Marshall and the > Constitution" (New Haven, CT, Yale Univ. Press, 1920), p. 34: "[Marshall's] > > attitude [to strengthen the national power and to curtail State legislative > > power] was determined not only by his sympathy for the sufferings of his > former comrades in arms and by his veneration for his father and for > Washington . . . but also by his military experience, which had RENDERED > THE > PRETENSIONS OF STATE SOVEREIGNTY RIDICULOUS IN HIS EYES." (Emphasis added.) > > There is no question that Marshall had a pre-destined belief against State > sovereignty in favor of national power. Corwin describes Marshall's > political belief regarding the US as a "nationalistic creed." > > So, is the nationalistic political persuasion of one man (appointed by a > nationalistic President) and one court to form the basis of the true > understanding of the nature and character of the USA? After all, Marshall > admitted that the US is established by the rule of law, and not the rule of > > men. So, by Marshall's own definition in Marbury v. Madison, a US S CT > opinion does not establish law, but rather should reflect what the > paramount > law already is: "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." So, as the age-old question has gone: who > determines whether or not the federal government has usurped power from the > > people of the states and from the State governments? The Marbury v. Madison > > believers are likely jumping up and down right now, raising their hands, > saying, "Oh! Pick me! Pick me! I know! I know!" I can just see smirks on > the > faces of most ABA-law school graduates as they condemn anyone who would > advocate another position to be true which is contrary to what Marshall > presupposed to be true. Of course, their rationale goes as deep as a > kiddy-pool and their thought process as far as an inner-city driveway. > > Since 1803, the nationalists have pointed to Marshall's declaration to > conclusively say the states have no power over the opinion of the US S CT, > for as Marshall states: "It is emphatically the province and duty of the > judicial department to say what the law is." From this, most American > lawyers and law students come to the conclusion that there is no authority > above and beyond the US S CT's interpretation of the US Constitution. > Whatever the US S CT rules becomes "settled law" and the states are > completely bound--of course, unless the US S CT says something different > later. I was taught this in law school and every other ABA-accredited law > school in America teaches this. But a true legal study of Marbury v. > Madison > reveals that Marshall's opinion (which was actually dicta) never addressed > the issue of State sovereignty whatsoever. American historian, Forrest > McDonald, reveals this fact in his book, "State's Rights and the Union: > Imperium in Imperio, 1776-1876." McDonald states, "Marshall was careful not > > to claim that the Supreme Court was the SOLE or FINAL ARBITER of acts of > Congress." (Emphasis added.) Ibid., (Lawrence, KS, Univ. Press of Kansas, > 2000), p. 56. This is, in fact, the case. > > Perhaps most telling about Marshall's silence on the issue of being the > sole > or final arbiter is the fact that just a few years prior to his decision, > Thomas Jefferson and James Madison, through the Virginia and Kentucky > Resolutions of 1798 and 1799, had advocated the State's ability to actively > > nullify and resist unconstitutional actions from the federal government. > Since Marshall's opinion was mostly dicta anyway--meaning it had no > relevance to the issue at hand--why not go ahead and state that the US S CT > > is the ONLY final arbiter of the US Constitution? But Marshall never did, > and neither has any US S CT decision since Marbury v. Madison. > > Thus, when someone suggests that the states possess the sovereign power to > arrest federal encroachments outside of constitutionally enumerated powers, > > the nationalists emphatically argue their unsupported conclusion that the > USA is one nation, indivisible, where the US S CT possesses the sole > authority as the final arbiter on all matters politically relative to the > US > Constitution, and to suggest otherwise is treason!--even when the most > authoritative sources have been so pointedly laid out to the contrary. > Marshall's opinions have not settled this matter, and the USA must come to > grips with who we are, what we are and how we are. > > What's more, Marshall's opinions of national expansion were conclusively > derived from one main principle: that the USA is a nation formed by the > whole people and not by individual states through a compact. This fact was > admitted by Marshall-lover, Corwin, in 1920. Corwin clearly expresses this > point as follows: > > "The great principles which Marshall developed in his interpretation of the > > Constitution from the side of national power . . . were the following: '(1) > > THE CONSTITUTION IS AN ORDINANCE OF THE PEOPLE OF THE UNITED STATES, AND > NOT > A COMPACT OF THE STATES. (2) Consequently it is to be interpreted with a > view to securing a beneficial use of the powers which it creates, not with > the purpose of safeguarding the prerogatives of state sovereignty. (3) The > Constitution was further designed . . . to be kept a commodious vehicle of > the nation life . . . . (4) [The national government] is a sovereign > government, both in its choice of the means by which to exercise its power > and in its supremacy over all colliding or antagonistic powers. (5) The > powers of Congress to regulate commerce is an exclusive power, so that the > States may not intrude upon this field even though Congress has not acted. > (6) The National Government and its instrumentalities are present within > the > States, not by the tolerance of the States, but by the supreme authority of > > the people of the United States.' Of these several principles, THE FIRST IS > > OBVIOUSLY THE MOST IMPORTANT AND TO A GREAT EXTENT THE SOURCE OF THE > OTHERS." "John Marshall and the Constitution," pp. 144-145. (Emphasis > added.) > > Corwin admits that all of Marshall's opinions were based upon the > presumption that the USA is a nation formed by the whole people as one body > > politic, and not by the individual, sovereign states via a compact. From > this premise comes the vast expansion of federal power under the guise of > constitutionality. Thus, if it were to be contrarily presumed that the USA > is in fact a compact acceded to by the states, then the rules of > interpretation that Marshall and subsequent US S CT justices used were > wrong > and require a different outcome. This fact cannot be overstated and is the > source of all of the federal tyranny that many of you reading this article > complain about. Thus, it behooves Americans to truly know WHAT IS THE TRUE > NATURE AND CHARACTER OF OUR UNION: is it a National government formed by > the > whole people, or is it a compact among the states and acceded to by the > states (otherwise known as a Confederacy)? > > This article does not allow me to expound upon this subject in great depth, > > but it should be sufficient at this point at least to call into question > Marshall's presupposition regarding the nature and character of the USA by > referring to some of the most authoritative sources on the subject during > the formation of the US Constitution. Let us start with James Madison, who > was one of the Federalist Paper authors and considered to be the Father of > the US Constitution. In Federalist Paper 39, Madison examines the nature > and > character of the formation of the Union under the US Constitution. He > admits > that the US was formed by a federative (league of states) and NOT a > national > act. Madison proclaims: > > "[T]he Constitution is to be founded on the assent and ratification of the > people of America, given by deputies elected for the special purpose; but . > > . . this assent and ratification is to be given by the people, NOT AS > INDIVIDUALS COMPOSING ONE ENTIRE NATION, BUT AS COMPOSING THE DISTINCT AND > INDEPENDENT STATES TO WHICH THEY RESPECTIVELY BELONG. It is to be the > ASSENT > AND RATIFICATION of the SEVERAL STATES . . . The act, therefore, > establishing the Constitution, will NOT BE A NATIONAL, but a FEDERAL act. > > "That it will be a federal and NOT A NATIONAL ACT . . . THE ACT OF THE > PEOPLE, AS FORMING SO MANY INDEPENDENT STATES, NOT AS FORMING ONE AGGREGATE > > NATION, IS OBVIOUS from this single consideration, that it is to result > neither from the decision of a MAJORITY of the people of the Union, nor > from > that of a MAJORITY of the States. It must result from the UNANIMOUS ASSENT > OF THE SEVERAL STATES that are parties to it . . . [T]he new Constitution > will . . . be a FEDERAL, and not a NATIONAL constitution." (Emphasis > added.) > > Madison pens in the clearest of terms that the US Constitution is a compact > > assented to by the State sovereigns in their legal capacities as individual > > bodies politic, and NOT as one mass of people, forming one body politic. If > > this were not enough to at least raise a serious question as to what has > been shoved down our throats for 150 years, consider that even Alexander > Hamilton confirms that the US Constitution is a compact between the states, > > and NOT a national act of the whole people. He says in Federalist Paper 85: > > > "To its complete establishment throughout the Union, [the US Constitution] > will therefore REQUIRE THE CONCURRENCE OF THIRTEEN STATES . . . [T]he > necessity of moulding and arranging all the particulars which are to > compose > the whole, in such a manner as to satisfy all the parties to the COMPACT . > . > . WE MAY SAFELY RELY ON THE DISPOSITION OF THE STATE LEGISLATURES TO ERECT > BARRIERS AGAINST THE ENCROACHMENTS OF THE NATIONAL AUTHORITY." (Emphasis > added.) > > Just in these two short excerpts from Founding Fathers, James Madison and > Alexander Hamilton, we see that Marshall's premise that the USA is a nation > > formed by the whole of the people and not by the compact of the states is > seriously called into question, which, of course, calls into question all > of > the principles of constitutional interpretation and resulting conclusions > which derive from that false premise. > > An honest look at the presumption that only the US S CT has the power to > interpret federal encroachments on State sovereignty will reveal that the > states have more power than what has been admitted ever since Marshall took > > the position of chief justice of the US S CT. For as Marshall admits in > Marbury v. Madison, "questions [that are] in their nature political . . . > CAN NEVER BE MADE IN THIS COURT." (Emphasis added.) By definition, issues > of > State sovereignty are in their nature political, just as a treaty between > the USA and foreign countries regards the matter of political sovereignty. > Therefore, when our states begin to assert their natural and sovereign > right > of self-defense against federal tyranny, each State will answer to their > sovereign--the people--and NOT to the United States Supreme Court. > > *If you appreciate this column and want to help me distribute these > editorial opinions to an ever-growing audience, donations may now be made > by > credit card, check, or Money Order. Use this link: > > http://www.chuckbaldwinlive.com/donate.php > > (c) Chuck Baldwin > > NOTE TO THE READER: > > This email editorial cannot be considered Spam as long as the sender > includes contact information and a method of removal. > > To subscribe, click on this link and follow the instructions: > http://www.chuckbaldwinlive.com/subscribe.php > > To unsubscribe, click on this link and follow the instructions: > http://www.chuckbaldwinlive.com/unsubscribe.php > > Chuck Baldwin's commentaries are copyrighted and may be republished, > reposted, or emailed providing the person or organization doing so does not > > charge for subscriptions or advertising and that the column is copied > intact > and that full credit is given and that Chuck's web site address is > included. > > Editors or Publishers of publications charging for subscriptions or > advertising who want to run these columns must contact Chuck Baldwin for > permission. Radio or television Talk Show Hosts interested in scheduling an > > interview with Chuck should contact [email protected] > > Readers may also respond to this column via snail mail. The postal address > is P.O. Box 37070, Pensacola, Florida, 32526. When responding, please > include your name, city and state. And, unless otherwise requested, all > respondents will be added to the Chuck Wagon address list. > > Please visit Chuck's web site at http://www.chuckbaldwinlive.com > > > > > > > > > ------------------------------ > Hotmail® is up to 70% faster. Now good news travels really fast. Try it > now.<http://windowslive.com/online/hotmail?ocid=PID23391::T:WLMTAGL:ON:WL:en-US:WM_HYGN_faster:082009> > > >
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