Hamilton & Madison: What little you think you know.

[manifold]

So where in the Constitution is the power of judicial review given to the Court? It may have been implied, accepted, thought about, agreed upon but where is it written? If if is not there and it is not, then the Court created law.

Judicial review is not law. So no law was created. The Framers themselves argued over powers in the Constitution implied or otherwise, amongst themselves. This we know for a fact.

Read arguments about "in the instrument' and 'intent' -- fascinating stuff even today. Especially today.

It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

He had an alleged personal interest, and ultimately voted against that personal interest.

Look it up.

 

[Procrustes Stretched]

serious discussion only

Judicial review is not law. So no law was created. The Framers themselves argued over powers in the Constitution implied or otherwise, amongst themselves. This we know for a fact.

Read arguments about "in the instrument' and 'intent' -- fascinating stuff even today. Especially today.

It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

He had an alleged personal interest, and ultimately voted against that personal interest.

Look it up.

in reply to regent: post #47: your argument is about the principle of implied powers within the US Constitution. I know some people like to argue that judicial review comes from a faulty interpretation of the US Constitution. To take this argument to it's logical conclusion would demand denying most all case law in US History. Frankly, that's irrational, an argument unworthy of serious contemplation.

Two Supreme Court cases form the foundation of what Americans have come to accept from the Courts, the Congress, and the Executive for around 200 years of US history: Marbury v. Madison (1803) and McCulloch v. Maryland (1819).

The first one: The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.

The second one:
Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."

---
Theories of Constitutional Interpretation

TAKING TEXT TOO SERIOUSLY: MODERN TEXTUALISM ...

Bork - Meese - others ... Original Intent: pages 5 and 6

 

[Peach]

serious discussion only

It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

He had an alleged personal interest, and ultimately voted against that personal interest.

Look it up.

in reply to regent: post #47: your argument is about the principle of implied powers within the US Constitution. I know some people like to argue that judicial review comes from a faulty interpretation of the US Constitution. To take this argument to it's logical conclusion would demand denying most all case law in US History. Frankly, that's irrational, an argument unworthy of serious contemplation.

Two Supreme Court cases form the foundation of what Americans have come to accept from the Courts, the Congress, and the Executive for around 200 years of US history: Marbury v. Madison (1803) and McCulloch v. Maryland (1819).

The first one: The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.

The second one:
Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."

---
Theories of Constitutional Interpretation

TAKING TEXT TOO SERIOUSLY: MODERN TEXTUALISM ...

Bork - Meese - others ... Original Intent: pages 5 and 6

See Federalist 78, Hamilton accepted the concept when promoting the ratification of the Constitution, also:

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.

 

[Procrustes Stretched]

Thomas Jefferson's Wingnuttiness in all things Marhsall

Intense in post #50 replied to Dante's post #48: It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

Intense has taken an attack against the Chief Justice's person. It's a Jeffersonian attack and it is well know that Jefferson and his cousin Marshall did not see eye to eye on many things. As a matter of fact, Jefferson was often criticized and cautioned by allies and friends for his irrationality when it came to anything Marshall.

 

[Procrustes Stretched]

arguments in posts addressed
Dante: post #49: "regent-- If you mean to imply that because you disagree with the power of judicial review, that all laws reviewed by the Supreme Court and struck down by it, is a case for the Court making law -- then you are in disagreement with the founders and the framers -- excepting Jefferson and a few others. Even Madison eventually went along with the principle. Proof? Look at what Madison did while President."

regent: post #51: "Whether I disagree with judicial review is immaterial, and if the framers intended to have judicial review and some did, it should be in the Constitution in black and white. It isn't. So the Court made an interpretation and of nothing and declared judicial review. It was a brilliant step by Marshall, but the irony of the case is the Court now talks of overstepping the Constitution."

Intense: post #57: You can find an argument for it in the Federalist Papers. I'm thinking 80 and 81.
------

no links from Dante in the above because...Dante will address posts #58 #59 #60 next
-------------------------------------------------
regent's argument:
Premise: something should be one way
Premise: that something isn't that way
Conclusion: case closed
--------------------------------------------------

regent: "the Court made an interpretation"

 

[Procrustes Stretched]

post #59 dispatched

...
Constitutionally...
...

you have a habit of thinking you are speaking 'Constitutionally' or that your arguments are 'Constitutionally' sound, and worse you speak as if your views are the definitive and final authority on what is or isn't Constitutional -- according to your own reading and interpretation of the US Constitution.

I would wager you just don't get IT here. You're stuck.

now on the post # 58 and post #60

 

[Procrustes Stretched]

post #61: mani: "He had an alleged personal interest, and ultimately voted against that personal interest. Look it up." - this was in response to Intense's repetitious refrain of "Chief Justice Marshall had a personal interest"

The concluding paragraph here is pretty good for it addresses the reality of Marshall being a Federalist. But so? Everyone belonged to one side or the other.

The 4th paragraph mentions a previous point I've made: namely that the Court's constitutional power of judicial review was already established in American jurisprudence by the time Marbury v. Madison firmly ensconced it in principle and in accepted fact.

 

[Intense]

Thomas Jefferson's Wingnuttiness in all things Marhsall

Intense in post #50 replied to Dante's post #48: It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

Intense has taken an attack against the Chief Justice's person. It's a Jeffersonian attack and it is well know that Jefferson and his cousin Marshall did not see eye to eye on many things. As a matter of fact, Jefferson was often criticized and cautioned by allies and friends for his irrationality when it came to anything Marshall.

Good to know. I would need to know more about Marshal to have an opinion on him. I really don't know that much about him as a person. I just think that there were better options in how the case was handled.

 

[Procrustes Stretched]

Thomas Jefferson's Wingnuttiness in all things Marhsall

Intense in post #50 replied to Dante's post #48: It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

Intense has taken an attack against the Chief Justice's person. It's a Jeffersonian attack and it is well know that Jefferson and his cousin Marshall did not see eye to eye on many things. As a matter of fact, Jefferson was often criticized and cautioned by allies and friends for his irrationality when it came to anything Marshall.

Good to know. I would need to know more about Marshal to have an opinion on him. I really don't know that much about him as a person. I just think that there were better options in how the case was handled.

Not if one takes the Federalist position.




btw, you mentioned what you thought about Hamilton. Marshall is just as fascinating a character. More so since he drove Jefferson batshit crazy.

 

[regent]

post #59 dispatched

...
Constitutionally...
...

you have a habit of thinking you are speaking 'Constitutionally' or that your arguments are 'Constitutionally' sound, and worse you speak as if your views are the definitive and final authority on what is or isn't Constitutional -- according to your own reading and interpretation of the US Constitution.

I would wager you just don't get IT here. You're stuck.

now on the post # 58 and post #60

You take a word out of context and build a case on how I speak. That's pretty nutty.
In any case can you give us the part of part of the Constitution that states the Supreme Court has the power to declare an act of Congress unconstitutional. Now I'm not defining or acting as the final authority just asking where that power is given to the Supreme Court by the Constitution. So far the evidence seems to be the Federalist Papers, Marshall's forceful argument, its been around for a while, Madison later agreed and other like statements. So point out where in the Constitution.

 

[Intense]

Thomas Jefferson's Wingnuttiness in all things Marhsall

Intense in post #50 replied to Dante's post #48: It's not Judicial Review that is the problem, when it connects the dots. It is when Judicial Review connects dots that aren't there, we have a problem. Marbury V.S. Madison was an atrocity, not because the Court was involved, but because Justice Marshal had a Personal Interest in the Case.

Intense has taken an attack against the Chief Justice's person. It's a Jeffersonian attack and it is well know that Jefferson and his cousin Marshall did not see eye to eye on many things. As a matter of fact, Jefferson was often criticized and cautioned by allies and friends for his irrationality when it came to anything Marshall.

Good to know. I would need to know more about Marshal to have an opinion on him. I really don't know that much about him as a person. I just think that there were better options in how the case was handled.

Not if one takes the Federalist position.




btw, you mentioned what you thought about Hamilton. Marshall is just as fascinating a character. More so since he drove Jefferson batshit crazy.

Jefferson was never that fond of Federalism, in spite of his closeness to Madison. Madison was a true Federalist. To Hamilton, Federalism was a tool, a phase, Government would pass through, before the People knew what hit them, it would morph, transform into his brand of Statist Utopia.

On Marshal, in relation to Marbury V.S. Madison, that the whole Appointment Notification/Certification might have been handled incompetently? That the flaw was in the process itself? Why not post Notices, to have the Appointee's meet at designated places, before said date, or at a certain time? Why not consider Law that with the exception of New Vacancy, no Person should be appointed after a certain date, in relation to the Election date. If a vacancy is open, unfilled for extended periods, why is it so important to flood the ranks at the last minute? Appears like the only winners are the incompetents that can't achieve through normal channels or due process.

Hamilton was notorious at appointing hacks himself. He was the Master at it.

 

[Procrustes Stretched]

Process v. System

Here are a couple of thoughts from Federalist No. 80.

Whatever practices may have a tendency to disturb the harmony between the States, are proper objects of federal superintendence and control.

It may be esteemed the basis of the Union, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." And if it be a just principle that every government OUGHT TO POSSESS THE MEANS OF EXECUTING ITS OWN PROVISIONS BY ITS OWN AUTHORITY, it will follow, that in order to the inviolable maintenance of that equality of privileges and immunities to which the citizens of the Union will be entitled, the national judiciary ought to preside in all cases in which one State or its citizens are opposed to another State or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.

Federalist Papers: FEDERALIST No. 80
​

Though History has shown us that the Court is not immune to Partiality, too many 5/4 split decisions that abandon reason, it was the intention to have the Court take responsibility here. I wouldn't argue that. What one does with that responsibility is another matter. The End does not Justify the Means. I'm not sure Hamilton ever learned that. Personally, I think it was the Death of Him. It is not enough to have the Authority. You must show Cause. It is not about having the Authority, but using it to the best of your ability to Serve Justice, not Convenience. One feeds Integrity, the other Laziness. I have a lot more respect for Pre Ratification Hamilton, than Dr. Hyde.

pardon: I keep seeing Hamilton and Marshall as one person. Bad habit from reading so much about them all. In the battles over separation of powers between the branches of government, these two gents were one.

The quoted section of Federalist #80 concerns issues between states; between citizens; between the states and citizens. It does not address the balance of power between branches of government.

A few things: Intense mentions 5/4 split decisions of the Court as proof of an inability of the Court to be impartial in cases between citizens and the states, or between states, or between citizens. Using the term subjective phrase 'too many' leads me to believe we have a partisan argument here. Too many compared to what? Using the phrase 'that abandon reason' afterwards is about as subjective an argument as can be.

Then Intense says he wouldn't argue his own subjective arguments. Then he does. Then he lodges a partisan attack on Hamilton.

On that other thought,
Who knew, huh...........

"From this review of the particular powers of the federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconviences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages."​

I can't help but wonder how much inconvenience would be avoided if Congress actually read and debated proposed Legislation before signing and Ratifying it?

I can't imagine why it is not a Crime to not do so?

So when the Congress Fails us, and the Court fails us, where are we??? .... Oh yeah.... Right here.

a few points on the quoted text: 1) "it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences." 2) "The possibility of particular mischiefs can never be viewed, by a wellinformed mind, as a solid objection to a general principle, which is calculated to avoid general mischiefs and to obtain general advantages."

1) The Court recognized the Legislature's duty and powers to rectify what may ail part of the system (maybe I'm not clear enough here?).

2) Most people who attack the system and the political process will have a difficult time reconciling their world view with these words.
...

Intense: "I can't help but wonder how much inconvenience would be avoided if Congress actually read and debated proposed Legislation before signing and Ratifying it? I can't imagine why it is not a Crime to not do so?"

Congress does so. Individual Congresswomen and Congressmen may not. Congress has staff. Congress has rules. Rules are often used to further a political cause or value. So what? It's process within the system.

A crime? You're mad.

Intense: "So when the Congress Fails us, and the Court fails us, where are we???"

We have failed ourselves. The governmental system is fine. The governmental process is being abused in new ways...thank you Newt and GOP. The political system is fine. The political process is broken. Thank you conservative arguments and Court decisions.

 

[Procrustes Stretched]

Good to know. I would need to know more about Marshal to have an opinion on him. I really don't know that much about him as a person. I just think that there were better options in how the case was handled.

Not if one takes the Federalist position.




btw, you mentioned what you thought about Hamilton. Marshall is just as fascinating a character. More so since he drove Jefferson batshit crazy.

Jefferson was never that fond of Federalism, in spite of his closeness to Madison. Madison was a true Federalist. To Hamilton, Federalism was a tool, a phase, Government would pass through, before the People knew what hit them, it would morph, transform into his brand of Statist Utopia.

On Marshal, in relation to Marbury V.S. Madison, that the whole Appointment Notification/Certification might have been handled incompetently? That the flaw was in the process itself? Why not post Notices, to have the Appointee's meet at designated places, before said date, or at a certain time? Why not consider Law that with the exception of New Vacancy, no Person should be appointed after a certain date, in relation to the Election date. If a vacancy is open, unfilled for extended periods, why is it so important to flood the ranks at the last minute? Appears like the only winners are the incompetents that can't achieve through normal channels or due process.

Hamilton was notorious at appointing hacks himself. He was the Master at it.

You ascribe motivations to Hamilton of which I am unfamiliar. Maybe link to something?

Statist Utopia? Jefferson was the one with visions of Utopia swirling around his head. Jefferson argued for the USA to be an agrarian utopia. How swell that would have prepared the USA for the coming Industrial Revolution.

Appointing hacks? Jefferson started the first political party ...hack central. It's main purpose was to undo things for partisan ideological reasons.

 

[Peach]

Lots of shit-talkin' here about the US Constitution, The Federalist essays and other stuff.

Do any of you who speak of The Federalist essays and orginial intent (original intent being a term coined after originalism was first used by Ed Meese in 1985) realize that both Madison and Hamilton spoke out of both sides of their mouths on how to interpret the Constitution?


*waiting

Are you referencing The Federalist PAPERS? Got my copy on a bookshelf.

look at the title: The Federalist a collection of essays. that be it.

The Papers will not please today's extreme right:
IX: THE UTILITY OF THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION & INSURRECTION

XII: THE UTILITY OF THE UNION IN RESPECT TO REVENUE........................

 

[Procrustes Stretched]

Are you referencing The Federalist PAPERS? Got my copy on a bookshelf.

look at the title: The Federalist a collection of essays. that be it.

The Papers will not please today's extreme right:
IX: THE UTILITY OF THE UNION AS A SAFEGUARD AGAINST DOMESTIC FACTION & INSURRECTION

XII: THE UTILITY OF THE UNION IN RESPECT TO REVENUE........................

for the right wing...
selective readings will suffice.

 

[shock]

During the Philadelphia Convention, he was a friend and ally of George Washington and others who favored a strong central government. Morris was elected to serve on a committee of five (chaired by William Samuel Johnson) who drafted the final language of the proposed constitution. Catherine Drinker Bowen, in Miracle at Philadelphia, called Morris the committee's "amanuensis," meaning that it was his pen that was responsible for most of the draft, as well as its final polished form.[5]
Wikipedia

===============================================================

I know of no secular instruments
better reasoned and better written
than the American Constitution.

 

[blimpo]

I read the draft was supplied by Sam Adams.

Lots of bitter hops made for bitter beer faces at the convention..

 

[Peach]

Another favorite: XLV, A Further Discussion of the Supposed Danger from the Powers of the Union to the State Governments.

 

[Procrustes Stretched]

Good to know. I would need to know more about Marshal to have an opinion on him. I really don't know that much about him as a person. I just think that there were better options in how the case was handled.

Not if one takes the Federalist position.




btw, you mentioned what you thought about Hamilton. Marshall is just as fascinating a character. More so since he drove Jefferson batshit crazy.

Jefferson was never that fond of Federalism, in spite of his closeness to Madison. Madison was a true Federalist. To Hamilton, Federalism was a tool, a phase, Government would pass through, before the People knew what hit them, it would morph, transform into his brand of Statist Utopia.

On Marshal, in relation to Marbury V.S. Madison, that the whole Appointment Notification/Certification might have been handled incompetently? That the flaw was in the process itself? Why not post Notices, to have the Appointee's meet at designated places, before said date, or at a certain time? Why not consider Law that with the exception of New Vacancy, no Person should be appointed after a certain date, in relation to the Election date. If a vacancy is open, unfilled for extended periods, why is it so important to flood the ranks at the last minute? Appears like the only winners are the incompetents that can't achieve through normal channels or due process.

Hamilton was notorious at appointing hacks himself. He was the Master at it.

"Madison was a true Federalist." - I always wonder why Madison fought so hard against almost all of Hamilton's plans. Madison won many battles at the convention and Hamilton lost, yet Hamilton was the fiercest proponent of ratification in his home state of NY, which is who the Federalist Papers were addressed

Madison: Father of the Commerce Clause
February 24, 2012

Exclusive: The Tea Party has been fueled by the idea that key Founders, like James Madison, opposed a strong central government and thus laws like “Obamacare” are unconstitutional. But Madison was the framer who devised the Commerce Clause upon which health-care and other reforms are based, notes Robert Parry.

By Robert Parry

One has to hand it to the American Right. It has invested so heavily in its falsification of U.S. history – and in its propaganda machinery – that it can convince millions of Americans that up is down. A case in point is the notion that James Madison, “the father of the Constitution,” opposed a strong central government in favor of a system of states’ rights.

The fact that Madison orchestrated American history’s greatest single shift of power into the hands of the central government and, conversely, away from the states, i.e. the U.S. Constitution, is transformed into its opposite by taking a few of Madison’s words out of context and ignoring what he actually did and why.

http://consortiumnews.com/2012/02/24/madison-father-of-the-commerce-clause/

 

[JakeStarkey]

Madison, the True Federalist at the Convention, fought with Hamilton and Jay for the constitution's ratification in NY, started moving to the right with Hamilton's funding and assumption bill and the natiional bank bill. He had them passed in the Congress despite his misgivings and in exchange for the bill locating and building Washington DC across the river from Washington's home. By 1796, Madison firmly opposed the Federalists and allowed the first national bank bill to expire in 1811 during this first term as president.