humanities.philosophy.objectivism

On Apr 3, 7:22 am, Charles Bell wrote:
> On Apr 2, 8:48 pm, Mark Sieving wrote:
>
> > Actually, the decison in Marbury v. Madison was in Jefferson's favor,
>
> Actually, not.  Jefferson was set to ignore any writ given to Madison
> whether or not to confirm Marbury, et al. So Marshall walked around
> the trap set for him by declaring the new 1802 law nullifying the
> judgeships conferred on Marbury et al. by the previous Administration
> "unconstitutional" thereby rendering whatever Madison was set to do
> moot, and precedent -- that Marbury, et al. would be confirmed --
> would prevail.  

Your understanding of the case is defective. Here's what really
happened.

On March 2, 1801, after the election of Jefferson but before he took
office as President, President Adams appointed, and on March 3 the
Senate confirmed, a number of judges and justices of the peace. (They
did such things a lot quicker in those days than they do now.)
However, the commissions for these appoitments were not delivered to
all the newly appointed judges and JPs before Jefferson took office on
March 4. Jefferson immediately ordered his acting Secretary of State,
Levi Lincoln, to withhold the undelivered commissions. This order
extended to James Madison when he became Secretary of State.

William Marbury and three other appointees asked the Supreme Court to
issue a writ of mandamus ordering Madison to deliver their commissions
as Justices of the Peace. Marbury based his petition on the Judiciary
Act of 1789, which gave the Supreme Court the power "to issue . . .
writs of mandamus . . . to any courts appointed, or persons holding
office, under the authority of the United States."

The Court ruled, unanimously, that while Marbury and the others had a
legal right to their commissions, the Supreme Court did not have the
power to issue the writ. The argument of the Court was that issuing a
writ of mandamus constituted an act of original jurisdiction, while
the Constitution granted the Court only appelate jurisdiction.
Therefore, the provision of the Judiciary Act of 1789 that gave the
Court power to issue such writs was unconstitutional and void.

Marbury and the others were never seated as Justices of the Peace.

> but Jefferson still
> lost because he wanted to establish the principle of absolute
> legislative control over judicial appointments.

The process of judicial appointments is clearly laid out in the
Constitution: the President appoints and the Senate confirms.
Jefferson was hardly interested in giving up his power to make
judicial appointments. What he wanted to do was to defy the Senate's
confirmation of Marbury and the others, by holding that the Executive
had the power to withhold the commissions. He got away with that in
this case, though fortunately that never became accepted as a general
principle.

> > However, the
> > Supreme Court ruled that the law granting jurisdiction in the case to
> > the Supreme Court violated the Constitution, so they dismissed
> > Marbury's suit.
>
> But the Constitution, and the prevailing opinion of the signers, and
> particularly that of the authors of the Anti-Federalist Papers, never
> intended a judicial oligarchy that "judicial review" engenders.

It was a long established principle at the time that when two laws
conflict, the superior law prevails. Since the Constitution is the
highest land of the land, when an act of the legislature conflicts
with the Constitution, the Constitution takes precedence and the act
is void. Marshall said it very well:

"...If two laws conflict with each other, the courts must decide on
the operation of each. So if a law be in opposition to the
constitution: if both the law and the constitution apply to a
particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably
to the constitution, disregarding the law: the court must determine
which of these conflicting rules governs the case. This is of the very
essence of judicial duty.

"If then the courts are to regard the constitution; and the
constitution is superior to any ordinary act of the legislature; the
constitution, and not such ordinary act, must govern the case to which
they both apply.

"Those then who controvert the principle that the constitution is to
be considered, in court, as a paramount law, are reduced to the
necessity of maintaining that courts must close their eyes on the
constitution, and see only the law.

"This doctrine would subvert the very foundation of all written
constitutions."

Have you read Madison's "Notes of Debates in the Federal Convention of
1787"? There was some discussion of giving the Supreme Court a veto
over laws, similar to that given to the President. The counter
argument was that such a veto was unnecessary, as the courts would
have, as a natural part of the judicial powers, the ability to strike
down any law contrary to the Constitution. This was not disputed by
anyone at the Convention.