It’s another one of those days when I should not be blogging — my Evidence Final is tonight and I should be reviewing my notes — but I find that a response to one of my readers results in what could stand alone as a blog article.
Today, I’m responding to a comment left by Peter Sean Bradley in a discussion that was being carried on following my article While There Are Still Courts.
To get a complete understanding of what I’m replying to, one might want to read at least the last two or three comments to that post. However, many of the points I make here constitute another lesson concerning the proper division (and occasional overlap of) powers of government. For that reason, and because it’s longer than I like for a regular comment, I decided to post this as a free-standing article.
On,and for those who like those things, you get a little taste of Balaam’s Ass at the end.
Jumping to conclusions and making unfounded/unsupported claims is unfortunately starting to become a past-time for Mr. Bradley. Among other things, he accuses me (I guess) of toeing the party line by focusing on Moveon.org position papers and ignoring law review articles. I can honestly say that I’m not sure when I’ve ever read a MoveOn.org position paper. Those guys spam me constantly and I virtually always hit the delete key without reading what they have to say. I will admit that during the Bush campaigns, I watched some of their commercials. No doubt I’ve read some blogs that have depended upon their material. And I know I’ve referred people to the aforementioned commercials. I tend to like to do my own research though, when I can.
Part of that research does sometimes include reading what others have written. As the attorney for whom I work often complains, I probably read too many — not too few, as Mr. Bradley complains — law review articles. I read them on any topic for which I need some background, before digging into the cases to which they refer to see if they really say what the authors of those articles claim they say. (Indeed, one of my clerkships right now is with the James K. and Carol Sellers Herbert Professor of Constitutional Law, working through an article by Brownstein on How Rights Are Infringed and dissecting every case he references, for the sole purpose of providing an analysis of whether each and every case he cites actually says what Brownstein says it says, or not.)
Which is what brings me to my next point: Mr. Bradley, who recommends that I “bone up on Marbury[,]” may wish to do some boning up on Marbury himself. Firstly, he made the claim in his first comment that SCOTUS didn’t meet one year because Congress didn’t fund it. And apparently he supported that proposition by “footnoting” (of sorts) to a set of popular CDs he bought from Barnes & Noble. I suggest Mr. Bradley may be surprised to note the following points:
- Barnes & Noble CDs are not the most scholarly or reliable works.
- SCOTUS did, indeed, not meet for a ten-month period starting in 1802 (April 1802 to February 1803, to be exact). The reason was a repeal of the Judiciary Act of 1801, which resulted in a reduction of terms for the Supremes from two terms per year to one per year; the August term was thus cancelled. I suppose a creative thinker could refer to this as a “de-funding,” but technically it was a reorganization.
- The idea that Marbury announced judicial review, which is not found in the Constitution, is a popular myth, but not accurate. As I noted in one of my earliest and most detailed exegeses of Marbury, “[i]n the battle for ratification of the Constitution itself, Alexander Hamilton, writing in Federalist No. 78, had stated that the constitutional limitations upon the other branches of government were in the safekeeping of the judiciary.” In Federalist No. 78, Hamilton noted,
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. — The Federalist No. 78: The Judiciary Department, online, (Alexander Hamilton)(MacLean’s Edition/Avalon Project)(italics, except for the words “ex post facto” added).
Contrary to Mr. Bradley’s dual (but related) claims that I ignored his comments on “checks and balances” and that the Constitution allows the Legislature to check the Judiciary by limiting jurisdiction, the Constitution does no such thing; my quote from Ariens’ article was intended to point out that it was the Court’s duty to be the final arbiter of the Law — indeed, the quoted portion states that very proposition. (To see the quoted portion of Ariens’ article, read the comments which caused me to write this blog entry.)
Judicial review, as I noted, was not announced out of thin air by the Marshall Court. Popular though this myth may be, the Constitution itself lays out the Court’s power in Article III. The “check” of limiting SCOTUS’ jurisdiction — regarding which Mr. Bradley did not cite authority from either the Constitution or anywhere else — is nowhere to be found in the Constitution. Article I, Section 8, clause 9 comes the closest when it notes that Congress has the power “[t]o constitute Tribunals inferior to the supreme Court.” Nowhere does the Constitution allow that Congress may limit the jurisdiction of the Supreme Court to include anything less than the duties outlined in Article III.
Further evidence — beyond the Constitution and beyond the explication of it contained in Federalist No. 78 (among others running from 78 through 83) — that judicial review was not plucked out of thin air by the Marshall Court, is found in Ware v. Hylton (1796) 3 U.S. 199, 237 [1 L.Ed. 568, 585], which states
That it is the declared duty of the State Judges to determine any Constitution, or laws of any State, contrary to the treaty (or any other) made under the authority of the United States, null and void. National or Federal Judges are bound by duty and oath to the same conduct.
This recognition of judicial review of legislative acts at both the State and Federal levels is some five years before the Marbury opinion.
A few less important points (which are less interesting in terms of Marbury — because they have nothing to do with it — but which respond to other points Mr. Bradley’s comment suggested):
Mr. Bradley implies that I have taken the threatening words of some Republicans, which they aimed at the Judiciary, out of context. Yet were the words of Tom DeLay and John Cornyn, among others, those of “a single legislator taken out of context,” neither of them would have taken the step of apologizing for their “inartful” remarks and President Bush himself wouldn’t have distanced himself from their remarks. Furthermore, Justice O’Connor wouldn’t have taken some of the extraordinary measures she’s taken to sit down over tea and talk to congressional representatives. A move that was done partly because judges are receiving increased death threats in the face of a Congress which not only does not speak out against such activities, but encourages such sentiments. Of course, maybe by “echo chamber,” Mr. Bradley meant to refer to Republicans in Congress and their infamous “talking points” papers. Until Mr. Bradley’s comments, though, I was unaware that the Republicans were brazenly distributing judicial threats in the same way they exploited the Terri Schiavo case.
As to Mr. Bradley’s assertions regarding my purported “prejudice” against, and “hatred” of, fundamentals, he complains that I lump all religious conservatives together and erroneously (in his opinion) refer to them all as “fundamentalists.”
Firstly, I deny that I hate fundamentalists; have you not heard the saying, “hate the sin, love the sinner”? 😉 I hate what they do.
Secondly, I don’t confuse all little-c christians with fundamentalists. However, I considered that using the more appropriate term, “American Taliban,” would confuse too many people. In terms of the theocratic threat, I see no difference between “evangelicals” of a conservative bent and “fundamentalists” of an extremely-conservative bent. This does not mean I am unaware of their doctrinal differences on other issues, just that those issues are not germane to my comments.
Interestingly, I believe proof that Mr. Bradley rails against a straw man is his question, “[W]hat happened to my point about loose comment about ‘uneducated, easily manipulated white trash’ voters[?]” Until he asked why I had ignored this “loose comment[,]” neither I nor Mr. Bradley had referred to “white trash[.]” I had noted, on the basis of a poll published by ABC News, that “evangelicals largely tend to be poor, uneducated and willing to do whatever one or two charismatic leaders” tell them to do. Somehow, my repeating the results of a poll not created by me is a slam on evangelicals. My re-stating the results of that poll — presumably compiled, by the way, from asking evangelicals about themselves — makes me a bigot.
Next, Mr. Bradley says that only SCOFLA [Supreme Court of Florida] found in favor of Gore during the U.S. Supreme Court’s uncustomary intrusion into political matters — which, incidentally, apparently resulted in a political 5-4 split within the Supreme Court of the United States itself. That may be true (I haven’t researched that issue and can’t right now due to the Damocles’ sword of my Evidence Final), but a) it was a question of the meaning of State law, which is normally the province of a State court to interpret and b) you don’t get any more political than an election. The U.S. Supremes should have abstained, as they usually do when it comes to such issues. (Especially since it was contrary to virtually all the precedent the five-member “majority” normally follows respecting federalism issues.) At any rate, this is a red herring. Whatever result other courts did or did not arrive at themselves is irrelevant to the questions of propriety concerning the actions of the United States Supreme Court.
Lastly, Mr. Bradley takes my comment “Live your religions — if you can —” as an insult. He is not entirely wrong to take it thusly. However, he expands it too far. I do, indeed, believe that most “people of faith” do not and cannot live according to the teachings of Jesus. In fact, I have frequently stated that I think “99.99%” of them do not and cannot. This does not ipso facto mean that I intend to insult all “people of faith” by my comment. I have also said that “If America were truly officially a Big-C-Christian nation, I’d still long for the days of freedom of religion, but I have to agree the world would be a nicer place.”
And, finally, nothing in Mr. Bradley’s response addressed the end of my sentence containing what he suggests is an insult to all Christians — faux and real. The rest of that sentence was “don’t cram [your religions] down our throats as compensation for the fact that your light does not shine before men as an example to be followed.” (Last sentence of While There Are Still Courts.)
Instead of agreeing — as the Founders and pastors, ministers, priests, etc. during the constitution of the United States — that this might be an acceptable path for those who follow specific religions in a pluralistic society, Mr. Bradley skips my point and accuses me of “demonizing.”
Let me say again: Live your religions — if you can. I propose to you that this will not only be completely in keeping with the teachings of Jesus (see Matthew 5:14 and Matthew 22:21), but your example will convert more people to your belief systems than forcing your moral code upon them legislatively.
In the old days, as I understand it, Catholics were fond of saving people’s souls from the eternal fires of hell by torching them in earthly fires when they refused to accept Jesus as their Lord and Savior. Apparently, some have yet to recognize the irony of “saving” people by force. Notwithstanding the irony of killing them before they could agree with John 3:16, according to the “Apostle” Paul — the real source of modern-day Christianity —:
[I]f righteousness could be gained through the law, Christ died for nothing! — Galatians 2:21 (NIV).
We pray and beseech Thee, O L-rd, that the heathen who have perverted the message You gave to Abraham, Isaac and Jacob, will at least listen to their own “Apostle”!