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Checks & Balances: A Reply to Mr. Bradley

Posted by Rick · May 4th, 2005 · 4 Comments

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:

  1. Barnes & Noble CDs are not the most scholarly or reliable works.
  2. 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.
  3. 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”!

Categories: Constitutional Issues


4 responses so far ↓

  • 1 Mike // May 4, 2005 at 2:47 pm

    It’s a rather humerous strategy. Seems to go like this:
    Use straw man to prove ad hominem then commit ad hominem.
    Seems about right…odd approach…might suggest some kind of subconcious disconnect when his arguments are weak.
    Anyway…Here are my two bits…

    It seems like the original discussion is kind of lost as the posts progress. I’m a regular reader here, and Rick is very consistent.

    [quote]”I’d bet that there are more Methodists in Congress than fundamentalists. But this technique of vilifying a minority group is as old as politics, which might come as a shock to a group which hold itself out as the very incarnation of tolerance, open-mindedness and diversity.”[/quote]

    It doesn’t take many fundamentalists to ruin a good thing – especially if they are in the right positions. The Patriot Act was passed, but most of those voting didn’t read it. So what does that mean? It means well placed zealots can get their way.

    [quote]Also, you might want to bone up on the difference between “evangelicals” and “fundamentalists”. They are actually different groups entirely, a fact which they are often quick to share; for example, Lutherans are “evangelicals” but not “fundamentalists”.[/quote]

    Here is a similar concept: All squares are rectangles but not all rectangles are squares. He is right on this one. As an example, Methodists do not typically engage in “evangelical” behavior. It is fairly typical however that a fundamentalist WILL be evangelical. Thus the viral spread of non-denominational christianity (and really poorly founded denominational christianity). Note: the little “c” was intentional.

    [quote]You simply didn’t come to grips with my question about checks and balances. Try to see it from another perspective, which, I agree is difficult when you demonize and dehumanize the other side, but it is sometimes a useful exercise.[/quote]

    This quote really well supports my idea of his strategy. Claim ad hominem and then perform it yourself.

    [quote]So where do checks and balances fit into the constitutional scheme of things insofar as the judiciary is concerned? Do the courts always get the last say on political or legal matters?[/quote]

    If they didn’t, what would they be there for? Site an example where the courts having the last say has resulted in a violation of the Constitution or the Bill of Rights. One example is all you need – one that stuck.

    [quote]Third, what happened to my point about loose comment about “uneducated, easily manipulated white trash” voters, which I believe you would find singularly offensive if applied to, say, illegal immigrants or African-Americans? Is it only bigotry if it involves non-white, Democrat-approved minorities?[/quote]

    I think that your offense is out of context plain and simple. If the goal is to divert attention, it wasn’t a very strong effort. Not to mention that you just turned it into a partisan argument, which it wasn’t. It is relatively safe to say that someone who is uneducated may be more prone to being easily manipulated. Suffice to say, scams don’t typically target educated people and organized religion typically does not encourage free thought. While the statement may have been a generalization, it detracts from the main issue at hand and is thus a wierd combination of red herring and straw man mixed in with a twist of ad homimem.

    [quote]Fourth, “Live your religions – if you can”, what the hey? Is your message that all people of faith are hypocrites? If so, see my point about demonizing the opposition. The fair response is that the various Christian religious people I know do live their religion, which teaches them that they are sinners and in need of grace and forgiveness, but feel free to call them hypocrites if it makes you feel superior.[/quote]

    Ok. You may accept grace and forgiveness as the key tenet of Christ’s teachings HOWEVER, try to live a life according to the Bible. I dare you. I dare you because you cannot. It is a book of contradictions assembled and written by people based on years of oral tradition and personal spin. You cannot live all of the teachings. I would love to see you try to rationalize teachings found in the Old Testament with those of Jesus. They don’t work. Now…this of course depends on how much of a literalist you are. Pick any religion though and try to live ALL of it. According to whatever “holy book” they use. You cannot. Organized religion is a good idea that is poorly executed and won’t work. I’m an engineer, and I can promise you that based on those plans, you couldn’t build anything that would work.

    If this were debate limited to reason as it applies to an issue, you would take more time to support your position rather than resort to misrepresentation and personal attack. Instead, what I see is an obvious partisan attack at least partly based on rampant assumptions that are not supported by prior posts. I’d enjoy a more well prepared argument on the original topic, but is it possible to keep it to that?

  • 2 Peter Sean Bradley // May 5, 2005 at 6:20 pm

    Rick, your initial post was a cri de cour about the evil Republicans who were acting unconstitutionally, in your view, by taking various actions to limit the jurisdiction and power of the courts. You appeared to argue that such steps were unprecedented and unconstitutional and that the only check and balance the Congress had available was to amend the Constitution.

    Along the way you threw in a few gratuitous comments about the character, intelligence and morality of your opponents, to which I responded, not because I have any dog in the fight, since I cannot stress too much that I am not a fundamentalist, but because that kind of sneer sets me off. But, hey, thanks for eventually bringing the Inquisition into the discussion, which certainly is fair and legitimate. I am, after all, as you know, a ?papist? and we “Romans” long for the return of the auto da fe (except for that pesky ?religious? obligation we have to respect everybody?s freedom of conscience, which does get in the way re-establishing a theocracy that never existed.) If you really want to go the ?full monty? next time, try to work the phrase ?transitional pagan,? which is a favorite among various fundamentalists I?ve known.

    Now, as to the constitutional historical issue, my point was that congressional control over the Supreme Court – even to the extent of proroguing the Court for a year – was recognized as entirely constitutional in the early years. We both, apparently, agree that I was right, whenever the event occurred and for whatever reason it occurred.

    My question was, if Congress could constitutionally prorogue the Court in 1802, or 1799, or whenever, why can’t it do that today, or do something less than a complete prorogue of the court? When did Congress lose this check and balance?

    By the way, my point about Congress proroguing the court came from this excellent lecture series by Kermit Hall, who is the Editor in Chief of the Oxford Companion to the Supreme Court – and not just some goofball running off the legal equivalent of a comic book. Based on his the tone of his lectures, I assumed he is a liberal. Hall’s point was to underline the fact that the SCOTUS has grown in social importance over 200 years such that proroguing the court today would raise a public outcry. The point about public outcry, however, begs the question of whether it would be constitutional.

    Also, there has been a long discussion on limiting the jurisdiction of the lower courts. As you can see from the link, noteworthy scholars of every political persuasion have taken all kinds of positions on this subject, so that “check and balance” is hardly the product of my fevered imagination.

    The point – on which we should both agree – is that Congress has constitutional checks and balances that it can exercise over the courts, other than by amending the Constitution.

    Next, as to judicial review, there is no dispute that judicial review is not found in the text of the Constitution. Where that power comes from is one of the great games of constitutional law. It may come from the structure of the constitution or some principle buried in English common law. Whatever the source, no one ever disputed Marshall’s claim of judicial review.
    However, my point about judicial review being “smuggled” into the law by Marshall isn’t original with me; it is, in fact, what happened, and he did it in a case where he reversed his own action as Secretary of State and supported the Jeffersonian position.(Such a clever fellow!) These were the facts I was alluding to when I said “bone up on the facts.”

    As to the ?white trash? issue, you wrote, ??evangelicals largely tend to be poor, uneducated and willing to do whatever one or two charismatic leaders?? tell them to do,? and you don?t seem to see the slightest hint of bigotry or prejudice in the statement. This is unfortunate since that kind of statement is what the word ?prejudice? and ?stereotyping? means. If you were an employer and you said that about an employee, a plaintiff?s employment attorney, like myself, would make very quick work of the case.

    To deal with the substantive support for this point, no where does the ABC ?opinion poll? say anything about ?willingness to do whatever one or two charismatic leaders tell them to do.? That?s the phrase that makes the claim offensive and not very objective. Everyone knows that Protestants – as a group – are poorer and don?t get as many years of ?school learning? as other groups. But to argue from those facts that they are compliant tools of their charismatic leaders is wrong-headed and offensive. If someone said the same thing about African-Americans or immigrants – or suggested that there was an International Jewish Banking Conspiracy because some Jews worked on Wall Street – I would hope that the prejudice in those statements would be clear. The idea that fundamentalists are the ignorant and gullible dupes of their ?charismatic leaders? is likewise a canard, a stereotype, and a prejudice.

    Again, I don?t have a dog in this particular fight since I?m not a fundamentalist or an evangelical – and to be truthful I share your visceral antipathy to manifestations of fundamentalist culture, such as ?bible thumping? – but I recognize my attitude to be a product of cultural prejudice and I think that kind of prejudice ought to be challenged where it appears.

    Finally, your theologically points raise some interesting questions, which might be explored if you some interest other than scoring debating points. But the short answer is that is not a show-stopper to claim or prove that 99.9% of Christians don?t live up to their ?apostle?s? teaching – no one has ever said anything to the contrary. According to St. Augustine, the church is a hospital for the sick, not a home for saints. Christians generally acknowledge that they are sinners and that they require grace – power from a supernatural source – to amend their ways.

    Accordingly, your point about ?living your religion? remains obscure. My ?religion? teaches me that capital punishment is unnecessary and that homosexuals must be accepted with ?respect, sensitivity and compassion.? Therefore, if I vote against the death penalty and for anti-discrimination laws, am I thereby ?cramming my religion” down your throat?

    Also, as I noted at the outset, my faith also recognizes freedom of consciences as a basic human right. Is it cramming my religion down your throat, if I oppose ?theocracy.?
    Or is it only ?throat cramming? when you don?t like the particular issues? The point is that ?religion? is a lot of things; not merely a tool to demonize other people.

    Oh, a last ironic point about “shoving religion down throats,” are you actually asking me to accept a sole fide construction of Galatians? Now that’s funny! (You see there’s this big faith v. works debate that started with the Reformation and.. oh, never mind.)

    But you never answered my original question, what could a liberal Democrat Congress do to rein in a conservative judiciary apart from amending the constitution?

    Good luck on your Evidence final.

  • 3 Rick // May 6, 2005 at 6:18 am

    Actually, my cri de coeur (if we wish to call it that) was intended to take aim at fanatical Republicans who are using religious rhetoric in an attempt to undo the Constitution, shutting down the courts that they feel stand in the way of their re-making our society into something resembling the one in Margaret Atwood’s The Handmaid’s Tale. And the main point of the article was that these folks are actually in the minority; by taking a less passive role, I said, the rest of us could put a stop to the fanatics before they completely trash the Constitution.

    Along the way, I noted that pseudo-christians are hell-bent on forcing their moral views on the rest of us — including forcing it on other christian sects, by the way — and that Republican leaders have become fixated on garnering their votes to the exclusion of everyone else. I pointed out that this had evolved out of the idea that the fundamentalist vote could give one party the edge over the other and morphed from that into the idea that only the fundamentalist vote counted. Additionally, I said, there were people who were now saying, on the basis of that same idea, that congressional leaders who resisted these people — who I now refer to as theocrats because of their agenda — had forgotten how they got there. (I noted in response to that idea, that these other leaders had been elected.)

    In reviewing that post, by the way, I now see how the evanglical-fundamentalist blur that was one irritant to you came into the picture: The people I particularly noted as behind this belong to a group who refer to themselves as evangelicals, but who are recognized as fundamentalists (Falwell and Dobson, primarily).

    Ironically — because, after all, it’s pretty clear the goal is the erasure of checks and balances on congressional power — you responded with what I’ll call your “Barnes & Noble” quote stating that de-funding of SCOTUS had occurred in the past, and no one complained about it and you asked,

    [W]here do checks and balances fit into the constitutional scheme of things so far as the judiciary is concerned? Do the courts always get the last say on legal and political matters?

    In that same post, you indicated that refusing to accept holdings of SCOTUS was okay in your book and you suggested that liberals like myself would agree with you if we could only imagine that SCOTUS might rule in ways we didn’t like. You suggested, as well, that I was part of the left’s program of “very deep bigotry…against this historically marginalized and politically weak social group.” The “this” referred to fundamentalists who were “easily led” because of their “lack of education.” It was me who had called them easily lead and lacking in education, based on an ABC poll (and my own personal experiences with folks I believe are members of that group).

    I responded to that by pointing out that you were in error about the cause of the missing session of SCOTUS and adding that it was unclear what would happen if Congress actually tried to limit SCOTUS via de-funding. (Specifically, I said, “if the Congress tried to completely annihilate the Court; e.g., if they did try to eliminate sessions.”)

    It was then that I suggested that,

    The proper response to not liking rulings of the Supreme Court is not to adopt the Republican plan of either starving the court, floating the idea of murdering Justices, or politicizing the legal system. The proper response is constitutional amendment.

    Following up on that comment, you returned to the “checks and balances” theme, stating that limiting the jurisdiction of the Supremes was a legitimate congressional response to not liking their rulings and that “[c]onstitutional amendments may be one check, but not the only one.” I’m not sure whether your use of the word “rogation” was a typographical error, or an attempt to invoke the early Roman (or maybe it’s the current Schwarzeneggerian) practice of “taking it to the people.” I took it to mean the latter, because that seemed to fit. But, if that’s correct, then (again) you appeared to be endorsing the idea that “the will of the people” should override the rulings of the Supreme Court sans amending the Constitution, that this had happened “in the early years of the republic” and that it “was not seen as an attack on the Constitution.”

    I have (before and since that post of yours) contended the contrary: that it was seen even then as an attack on the Constitution. But, as now, it was not seen that way by everyone. (Although then it wasn’t theocrats against the rest of the country; it was two groups with different ideas of the ideal balance of power in the new republic. In other contexts, I’ve referred to them as Federalists and anti-Federalists.)

    In that same post of yours, you tossed in second, third, fourth and fourth (that’s not a mistype on my part; it’s a reproduction of your original mistype) points upon which the conversation focused somewhat more in my responsum (if I dare call it that under the circumstances; I do say it “tongue-in-cheek”). These points were your replies to my “few gratuitous comments about the character, intelligence and morality of [my] opponents.”

    Due to the historical development of our conversation, as just detailed, we have at least two primary arguments going on right now and we’ve both responded to one another on each of those tracks. I don’t think I’d be unfair to say that your responses have more firmly interwoven the two tracks — not that there’s anything wrong with that — so maybe “threads” is a better metaphor. Again, I don’t mean to imply that there’s anything wrong with this interweaving; I simply note it because our conversation is public and it’s possible that some others reading it might not recognize that they are actually separate arguments. It gets more confusing because (at least on my reading) as the conversation develops, each thread is independently becoming more complex.

    And so…

    Thread One: Marbury…and SCOTUS

    Despite your charge, repeated above, that I haven’t answered your original question, I believe I have. The answer isn’t different (and thus the question isn’t unanswered) just because you cast it as “what could a liberal Democrat Congress do to rein in a conservative judiciary[?]” whereas I’ve spoken of it in terms of what any of us could do to rein in any type of judiciary. It’s actually a separate cultural problem that both groups have abandoned their duty to the rule of law in favor of result-oriented judicial decisions. It is an unfortunate interaction of that problem with the constitutional form of government originally established that I think leads us to illegitimate attempts to reign over the courts. At any rate, an explicit statement of my answer to your question is that courts always get the final say on legal matters and on political matters when those political matters are effectuated in law and the only way to change the courts’ having the final say would be to change the Constitution, resulting in a radical restructuring of our Republic.

    The politicization of the courts is, not incidentally, a significant problem and I don’t know that I know what I think can or should be done about that. For the moment, though, I’m adhering to the point I’ve been pushing that we cannot try to solve it by running roughshod over the Constitution. Ultimately, I disagree with your comments on what’s constitutionally acceptable vis-à-vis the Court.

    First, I disagree that Congress has a constitutionally-acceptable power to limit the jurisdiction of SCOTUS. As I’ve noted above in the main blog article, Article III of the Constitution spells out SCOTUS jurisdiction, whereas nothing in the Constitution supports the idea that Congress may limit it. The “rogation” you referred to — which I now think I see is “prorogation” (this is not meant as any commentary on your sesquipedalian skill, which I believe probably surpasses mine; just noting how I misunderstood you earlier on this issue) — was a possibly legitimate reorganization, as I previously noted. Although it was apparently driven by a desire to punish SCOTUS and send a message about their having taken on the Marbury case, it was not exactly an attempt to directly limit their jurisdiction. And it wouldn’t surprise me if someone was able to show that the reason for this indirect approach was that “everyone knew” that any attempt by Congress to directly limit SCOTUS’ jurisdiction would be constitutionally improper. I don’t know that they knew this, but I think it’s a safe bet they did. Even Jefferson appeared later in life (after his Presidency) to give grudging acknowledgment of the power of the Court; he just didn’t like the way it interfered with his goals. But then, that’s partly what we’re arguing over, too, isn’t it? Some of us don’t like it any better. (I don’t deny that adherence to our constitutional system sometimes creates problems for democratic rule. But I believe that was deliberate; that it was set up the way it was set up for a reason; I concur with that reasoning; and I’m willing to live with the headaches even when they fall on my head, at least until something better is discovered that can ameliorate the problems while achieving the same goals the Founders enshrined.)

    Second, I disagree with your reading of Marbury. I concede that you aren’t the only one who reads it this way; as you note, the idea isn’t original with you. I believe that in the main article above, I have addressed this. Your current comment adds, by the way, something I have not heard before and I believe may be original with you: that Marshall “reversed his own action as Secretary of State and supported the Jeffersonian position.” I don’t know what you mean by that.

    Marshall previously failed to deliver all the commissions he was to deliver before the end of the term of the Administration under which he served as Secretary of State. Consequently Marbury, among others, didn’t get his. The commissions were made possible by the creation of new judgeships under the Judiciary Act of 1801. Marbury sued in the Supreme Court because, if I recall this correctly, the Judiciary Act of 1801 had also expanded the jurisdiction of SCOTUS (beyond its original Article III limits) in a way that indirectly allowed that. Part of what Marshall did in Marbury — and this is where people perhaps correctly consider his move an act of political genius — was to utilize the doctrine of judicial review to abrogate the act of Congress that had (apparently) given jurisdiction over Marbury’s case to SCOTUS in the first place. The net effect of Marshall’s holding was that Marbury didn’t get his commission. Perhaps that’s what you mean by “supported the Jeffersonian position”? (I don’t know; I’m asking.)

    At any rate, the following falls out of my understanding of Marbury and, also (i.e., additionally), my understanding of what you’ve said about Marbury:

  • Marbury, as I keep saying, didn’t create judicial review out of thin air. I’ve already made my arguments for this. You haven’t refuted those arguments; you’ve simply pointed out that your understanding of Marbury on this point wasn’t original with you (and I agree). I won’t reiterate my prior arguments; I think they show that the traditional view is incorrect.
  • Marbury doesn’t constitute a “reversal” by Marshall of anything he did as Secretary of State. As noted, what he did as Secretary was to fail to deliver a commission for a judgeship that had been created by the Judiciary Act of 1801. Marbury did not hold that this judgeship was invalid, because it did not hold that the entire Judiciary Act of 1801 was invalid; it only held that the expansion of SCOTUS jurisdiction was invalid and that, thus, SCOTUS was without original jurisdiction over Marbury’s case. Being without original jurisdiction over Marbury’s case, SCOTUS could provide no relief; it was analogous to a modern “12(b)(6)” holding. SCOTUS being without original jurisdiction on Marshall’s view (a questionable holding, btw), Marbury had filed in the wrong court. Unfortunately for Marbury, Congress repealed the Judiciary Act of 1801 before he could file in a proper court. As just noted, the merits of Marbury’s case were, interestingly, actually never fully adjudicated. Prior to noting that SCOTUS lacked jurisdiction, Marshall’s opinion makes a run at it and appears to indicate that Marbury would have prevailed. But as the judgeship was eliminated by the repeal of the Act before Marbury could sue in a proper court, Marshall’s comments respecting Marbury’s potential claim should be counted as dicta; a substantive ruling on his claim was thus never obtained.
  • On account of that last point, it’s misleading to say that Marshall “supported the Jeffersonian position.” The net effect of Marbury was to support Jefferson’s refusal to allow Marbury his commission. But your use of “supported” seems to imply intent to agree on the substantive issue which, as I noted above, Marshall never arrived at, other than in dicta.

    Marbury is an interesting and complex case. You previously stated (more than once now) that I needed to “bone up” on it, but I believe I’ve shown that I am quite familiar with it. That I disagree with the traditional view, for reasons given elsewhere, does not mean I’m inadequately familiar with the case.

    Thread Two: The Theocracy Thread

    If I understand you correctly, then I believe I have caused you to misunderstand me.

    I believe the Theocracy Thread offended you because of my comment that Theocrats should live their religion and my failure to take account of the fact that unlike fully-declined languages, the English “you (plural)” and “you (singular)” have actually just one form: “You.” I further confused things by invoking the memory of the Inquisition, failing to take account of the fact that you, personally, are a “papist.” (Well, I’m not sure if you put that in quotes to indicate “not so much” or what.) I didn’t drag in the Inquisition because of you (meaning “you, Mr. Bradley”), but because contrary to one of your opening parentheticals, it represented a world where Theocracy was the essential controlling power. (Yes, I know there was a King, but even the King challenged the religious power at his peril, as the famous English back-and-forth to which I’ve referred elsewhere shows.) A final compounding of my original error, wherein I caused you to think I was denigrating you (meaning “you, Mr. Bradley”) came in the post above, because this time you (meaning “you, Mr. Bradley”) misread the post.

    In the “Checks & Balances: A Reply To Mr. Bradley” article above, I referred to you in the third person as “Mr. Bradley.” When I said, in one of the final paragraphs, “Let me say again…[,]” I was referring to you generically, not to you (meaning “you, Mr. Bradley”). I’m not actually sure I know enough about your (meaning “you, Mr. Bradley”) beliefs and how you (meaning “you, Mr. Bradley”) live your life to make any complaint that you’re a) a theocrat and b) a pseudo-christian.

    It’s worth noting, in this discussion about Theocracy, what I said in Religion and Logic in Politics. I believe that article answers your question of what constitutes “throat cramming.” And I believe you’ll agree, after you read it, that I would probably not refer to your (meaning “you, Mr. Bradley”) activities as “throat cramming.” Your question does raise an interesting question I hadn’t thought about, though: If someone’s religion teaches tolerance of others and they therefore support less regulation and more freedom for others in a pluralistic society based on “religious arguments,” would that constitute “throat cramming”? And, if it did, should I care? I’ll have to think about that one. 😉

    At any rate, I think my “sole fide construction” of Galatians 2:21 was not an inappropriate use of the point. I understand “this big faith v. works debate[,]” though I disagree that it “started with the Reformation” — on my reading it was a big part of the Pauline message. (It also marks a distinguishing characteristic between Christianity and Judaism in my opinion, but that’s another tome entirely.) Paul’s message sometimes appears to equivocate on “this big faith v. works debate[,]” but I think he’s pretty clear that salvation does not come to you (generic “you”) because of your (again, generic) act of following [in his case, Judaic] law. My use of his phrase is aimed directly at theocrats: Righteousness (or salvation or whatever you’d like to call it) does not come through legislation. Laws should exist for the sole purpose of allowing us to live together while still allowing us each as much freedom as possible to live according to our own self-chosen mores. Your (generic use of “your”) choices should not be legislatively imposed upon the rest of us.

    I do not retreat from my belief that legislating in a way that imposes their beliefs upon the rest of us is exactly what theocrats want to do, and because they think it’s not only right, but righteous, for them to do so.

    I suggest anyone who wishes to legislate their religious beliefs in a way that precludes my freedom to live as I wish where my doing so does not constitute a direct impingement (e.g., by murder, assault, robbery, et cetera) upon their lives is acting inappropriately and, in the United States, theoretically, in violation of the Constitution.

    And perhaps that’s how we get a solution for the question you caused me to ponder above about what to do when someone’s religious arguments support tolerance and freedom. Because such a religious argument makes it possible for others to live according to their own choices for themselves, we don’t have a problem. So maybe I want to say religious arguments that reduce the amount of legislation limiting the free choices of others are okay; religious arguments that increase the amount of legislation limiting the free choices of others are not okay.

    Because the ultimate point here is that I don’t want someone else, based on their religious view, telling me how to live my individual life any more than is necessary to keep me from stopping them from living their individual life.

    A Third Thread: “White Trash”

    I just realized that there’s actually a third thread in the discussion now, because of the direction things went after you took issue with my comments on evangelicals and fundamentalists with respect to the ABC Poll.

    First, I reiterate that I never referred to either evangelicals or fundamentalists as “white trash.” I actually believe they find their most vehement support from people who might be so labeled, but it was you who brought that pejorative to the discussion, not me. I simply relied upon the ABC Poll to say they were poor and uneducated. I believe, therefore, that this can count as “self-reporting”; ’twas the poor and uneducated evangelicals and/or fundamentalists, in their responses to the poll, who made it possible to recognize they were largely poor and uneducated.

    You are correct that “willing to do whatever one or two charismatic leaders…tell them to do” was not a direct quote from the poll. I took it to be a fair reading. It also doesn’t require a pejorative reading such as you’ve given it. It’s a plain statement of fact. (And, besides, willingness to do what one or two charismatic leaders ask of us isn’t limited to the poor and uneducated. I don’t like it, because it’s usually an unreasoned act to follow such leaders.) I believe it’s more likely than not that the more poor and uneducated one is, the more likely it is a) that one will do such a thing and b) that it will be an unreasoned act.

    Nevertheless, I’m not exactly sure why just because I don’t like something, this automatically transforms all my descriptions of what’s happening into pejorative statements. Remember, I didn’t call them “poor” and “uneducated”; they fell into those categories through self-reporting. I did add to that the “willing to do whatever one or two charismatic leaders…tell them to do” part. I’m sorry you were offended. I don’t retract the statement. And I think the self-reported nature of the attributions “poor” and “uneducated” distinguish this from your examples of bigotry.

    At any rate, a desire not to be a bigot does not require one to stop disliking the goals of any apparent group just because some people in the group might not completely “fit the mold” for casting members of that group.

    ‘Nuff said for now. I need to get back to bed. 😉

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