On May 8, 6:40 pm, "M. Johnson" <[email protected]> wrote: > "Oops! Right off the bat, in its very first session, Congress therefore tried > to do something it was not empowered to do (if you'll allow for the moment > that, contrary to Spooner, the Constitution actually empowered anyone to do > anything). In so doing, Congress demonstrated its disdain for the fences > placed around it by Articles Two and Five. Very clearly, government today > acknowledges no limits on its power; the 1789 Judiciary Act made it plain > that Congress never did acknowledge such limits, even in its very first > session."1789by Jim Davies > It's often said that America was once a free country, but that its freedom > has been heavily damaged by a relentless growth in government. Some (like > Aaron Russo in his documentaryAmerica: from Freedom to Fascism) date the > decline from 1913, when the Federal Reserve was chartered and the Income Tax > enacted; but I no longer think it began that late. The "Pristine State" > advocates suppose that there was once in our history a kind of Eden from > which we have fallen, and so that all we need now is somehow to get back > there – to "constitutional rule." There wasn't, and we don't. I think our > troubles began no later than 1789. > The drafting was done in 1787, and the needed nine States had ratified it by > June 21st, 1788, so the Constitution became supreme law on that day. Then on > March 3rd 1789 Congress opened its doors and the following month George > Washington presided. It's very interesting to notice what the new Congress > did, in its first session, from March through September of that year. > It committedsix acts, before going home for the winter in September. See if > any of them give you warm, fuzzy feelings; and in a moment I'll focus on the > sixth, because of its huge importance. > First came some administration; deciding on how oaths of office were to be > taken. Not too much there to bother us. > Second was the "Hamilton Tariff," under which revenue was to be raised. So > the second-ever Act of the US Congress was to arrange for the confiscation of > property. Sure, it was Constitutional – it was a set of tariffs, imposed on > certain imports; some must have recalled that it was a tariff on tea that had > sparked the Revolution in the first place, so may have wondered whether > anything had changed except the geographic location of the thieves. The > import duties favored Northern manufacturers by making foreign goods seem > more expensive – it was protectionist – and hurt Southerners by making them > pay more. From Day One, a division was being fashioned that led after seventy > years to open warfare. So the first substantive thing Congress did was to > start to set the scene for internal conflict. > Third came an establishment of "Foreign Affairs" – now the Department of > State – by which the new government was to execute "policies" towards other > nations. If the intention was to have a perfectly uniform policy towards all, > that would not have been needed. By establishing one, it was clear there were > to be some nations more favored, others less favored. That's what a "foreign > policy" means, and it is ultimately the cause of war and, in our own era, of > the unconventional war called "terrorism"; for had there been no foreign > policy favoring Israel (recall Biden's call in March for "no space" between > the policies of the US and Israel?) there would have been no 9/11, or if > there had been one favoring Palestinians there would have been a "9/11" much > sooner and much more devastating, executed by Mossad. So the third Act in the > history of the new government was to set the scene for all future external > conflict. > Fourth was an Act to set up a Department of War – now euphemized as "Defense" > – and that was very logical. You play favorites with other nations, > eventually you'll need to fight some of them. Better get ready. > Fifth came the Department of the Treasury, to take in and account for the > collection and spending of the money confiscated by Act Two. It is to this > Department that today's IRS belongs, so I need say no more. > So far, it's not too hard to detect the beginnings of all the most loathsome > attributes of any government: tax, distortion, discord and warfare. This is > to what our well-meaning "Constitutionalist" friends want to get us back. > The sixth action of that first session bore fruit on September 24th, 1789 and > was the "Judiciary Act" – and it's notorious and breathtaking. Here's why. > On its face, its purpose was just to flesh out Article Three, which said > there was to be a Judicial Branch in the new government. It had to do with > establishing Courts – Supreme, District, Circuit – and government Attorneys, > General and less general. But as well as that administrative stuff, the 1789 > Judiciary Act declared that the Supreme Court had the power to hear actions > for "writs of mandamus" as one oforiginal jurisdiction,and so not to be just > a court of appeal. Congress was therefore purporting to grant to its sister > Branch a power which Article Three never gave it. > Oops! Right off the bat, in its very first session, Congress therefore tried > to do something it was not empowered to do (if you'll allow for the moment > that, contrary to Spooner, the Constitution actually empowered anyone to do > anything). In so doing, Congress demonstrated its disdain for the fences > placed around it by Articles Two and Five. Very clearly, government today > acknowledges no limits on its power; the 1789 Judiciary Act made it plain > that Congress never did acknowledge such limits, even in its very first > session. > Was this arrogation of power deliberate, or inadvertent? > Either is possible if the Act is considered in isolation, but it wasn't > isolated. While the Constitution was being drafted, Alexander Hamilton and > other Federalists had wanted to specify powers for the Judicial Branch, just > as the charter did for the other two Branches, and in particular to grant it > the power of "Judicial Review," i.e., to say what is, and is not, valid law. > He argued that that is what high courts normally do. However in Article Three > no powers were granted to it at all, so as it's fair to presume that it was > not to have zero powers (otherwise, why set it up?) consequently Article > Three left them wide open – for unlike the wording of Articles I and II there > are no limits or prohibitions named, either. It was a blank check, whose > detail could be filled in later. > If Hamilton had had his way and the Constitution as drafted had said > something like "The Supreme Court shall have power to decide what is law and > what is not law" the new government would have been plainly seen as a > dictatorship, and in my humble opinion it would have not had a snowball's > chance of getting ratified; even as it was, that process was no sure thing. > So that's why they left it blank – while the Federalist majority intended all > along that such a power should, indeed, be owned by the Judicial Branch so > that the new government could (with a little delay, and with its cooperation) > do anything it wanted to do, while operating under the pretense of being > strictly limited. > So Congress' 1789 attempt to endow the Supreme Court with a new power (to > hear certain cases with original jurisdiction) was not accidental, but > deliberate; that particular power wasn't very important, but it was to test > the waters, establish a precedent. If they could grant it one small power > then, they could later grant it bigger ones, and so eventually equip it with > absolute, law-determining power. Take an inch at once, so as to take a mile > later on. > Success came soon: Jefferson won the 1802 election and in the changeover from > Adams' administration a certain judge, William Marbury, was not given his > proper paperwork to take up an appointment in D.C. So he took advantage of > the Judiciary Act, and filedwith the Supreme Courta suit for a "writ of > mandamus" – to handle that matter at once – against the new Secretary of > State, Madison. > John Marshall's Supreme Court delivered awell-reasoned opinion, which > confirmed that Marbury was properly entitled to his new job, but that the > Supreme Court was not legally entitled to issue the requested writ. Marshall > wrote that the Congress had no power to endow the Court with the right to > hear such petitions as one of original jurisdiction, for by so doing it would > have amended the Constitution, contrary to Article V. He was right; the 1789 > Judiciary Act was unconstitutional. So as to clarify that Congress was not > the final arbiter of law he then went on to write the sentence now engraved > on the wall of the Supreme Court building:IT IS EMPHATICALLY THE PROVINCE AND > DUTY OF > THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS > > Now, here's the awesome trick that was being pulled: in the very act of > declaring that Congress was not entitled to amend the Constitution,Marshall's > court was itself amending the Constitution! –or purporting to do so. Why? – > because in Article Three, the Judicial Branch is not empowered to declare > whether or not a law that Congress wrote conforms to the Constitution. That > power of final arbitration or "judicial review" is simply not there. Hamilton > wanted it there, and argued that it was implicitly there, but in fact it is > not. Therefore, in issuing theMarburyopinion, Marshall put it there: he did > for his own Branch exactly what the decision itself said was not allowed for > another Branch. > Did his court have any alternative? – I don't think so, but to judge from the > enthusiasm Marshall used in the quote above, I doubt whether that worried > him. TheMarburydecision filled in the blank check of Article Three; that was > how power was grabbed. Since 1803, what is and is not law has been determined > not by "The People" or their alleged representatives in Congress, but by a > cabal of government people who decide what's to be done and, if challenged, > get the Judicial Branch to declare it legal. The yawning chasm between what > courts now routinely enforce regarding income tax, for example, and what USC > Title 26 actually says (and indeed what the Supreme Court said about > unapportioned direct taxes, between 1896 and 1921) is thereby fully > explained: the Judicial Department "says what the law is," really and truly > and actually, and so it's been ever since 1803 thanks to the empty text of > Article Three and toMarbury v Madison. > Was theMarburydecision itself Constitutional? – that's the nub of the matter. > No, of course it wasn't, for the Court exercised a power it had never been > given. Yet on the other hand it exercised a power it had never been denied, > either, and as Hamilton persuasively argued in theThe Federalist #78, > Judicial Review is quite customarily a normal function of high courts and so > the power was implicit in Article Three even though not explicit. We can note > also that even the power to decide simple cases of lawbreaking is not > explicitly described there either, along with the prerequisite power to > interpret what laws mean; yet those are accepted as normal functions of any > judicial branch of government. In any case, who is to decide that key > question? Some kind of super-supreme court? Sorry, that's not covered in the > Constitution, not even in Article Eight. We have here reached the ultimate, > fatal flaw in the pleasant fiction that governments are entities capable of > being limited. > Ever since 1803, America's government has pretended to operate a limited, > democratic republic but has actually been an oligopoly of lawyers. And since > Article Three was crafted (and left blank) with all deliberate intent, I > suggest that's the way the founders always planned it. The 1789 Judiciary Act > was a kind of delayed-action poison pill, a really cunning plot, planned and > executed by those honored even today as the founders of a free society. And > this is perfectly logical; the notion that a government (something > thatgoverns) can ever be subject to limits (things that prevent governing) is > nonsense on its face, an absolute > contradiction.http://www.lewrockwell.com/orig6/davies2.1.1.html > > > > -- > Thanks for being part of "PoliticalForum" at Google Groups. > For options & help seehttp://groups.google.com/group/PoliticalForum > > * Visit our other community athttp://www.PoliticalForum.com/ > * It's active and moderated. Register and vote in our polls. > * Read the latest breaking news, and more.
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