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The Myth Of Marbury Vs. Madison

Constitution-thumpic

This article comes from the tenthamendmentcenter.com

The common understanding of the famous Marbury v. Madison case is that it established the authority of the Supreme Court to determine what the Constitution says. From there, it’s held that the Court gets to determine the limitations placed on the federal government as well as the states. In short, the rest of the federal government, and the states, are bound by what the Supreme Court decides.

But is that the truth? A paper from Northwestern University School of Law Constitutional Theory Colloquium Series seeks to clear up the myths associated with the Marbury decision. In the first sentence of his 2004 paper, “The Irrepressible Myth of Marbury,” Michael Stokes Paulsen sets the mood for the rest: Nearly all of American constitutional law today rests on a myth.

“A long, long time ago — 1803, if the storyteller is trying to be precise — in the famous case of Marbury v. Madison the Supreme Court of the United States created the doctrine of ‘judicial review.’ Judicial review is the power of the Supreme Court to decide the meaning of the Constitution and to strike down laws that the Court finds unconstitutional.”

This myth, he continues, allows the Supreme Court to dictate what the Constitution means via “opinions,” i.e. ex cathedra pronouncements. Though those rulings are supposed to be binding and create a firm precedent, this doesn’t stop them from being overruled by future courts.

“Nearly every feature of the myth is wrong,” Paulsen writes. “For openers, Marbury v. Madison did not create the concept of judicial review, but (in this respect) applied well-established principles. The idea that courts possess an independent power and duty to interpret the law, and in the course of doing so must refuse to give effect to acts of the legislature that contravene the Constitution, was well accepted by the time Marbury rolled around, more than a dozen years after the Constitution was ratified.”

Alexander Hamilton addressed this in Federalist No. 78, writing that the Constitution itself was supreme over any law or ruling.

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. . . .(emphasis added).

Yet, Paulsen says, the power of judicial review was “never understood by proponents and defenders of the Constitution as a power of judicial supremacy over the other branches, much less one of judicial exclusivity in constitutional interpretation.”

Read more here.

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Shorty Dawkins

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6 comments

  1. This case is about STATUTES, not LAW (Rights). I dont expect any BAR members to know the difference since their teachers are selectively teaching them what they are programmed to know. I’ve talked to BAR members who dont even understand Corpus Delicti and what it means and how it pertains in a court setting. I dont expect any truth from a BAR member as they swear an Oath to the British, via the AMA a subsidiary of the British Accredited Registry and upon this Oath, they instantly lose US citizenship and become a foreign agent, all confirmed in Federal Statutes. This is Fact. Learn Common law and how to apply it properly to avoid their BS statues and codes (called Codes for a reason), which ONLY work via your consent, knowing or not-knowing, its the only way to save yourself from the BAR members running and operating the courts extracting money from people via admiralty law. Cops issuing phony bills of exchange (tickets), to pay off the debt still owed to the Crown. All cops and politicians, any person who takes an Oath to the corporate constitution, enacted in 1871, is a foreign agent. Sorry for the rant but i always drop FACTS in hopes someone who thinks i am wrong, will go research the info themselves, thus awakening another sleeping soul trapped in the matrix. BTW, this didn’t even scratch the surface of what is going on within occupied America.

  2. It sure is not that way now. I believe the 9 people setting on the bench now think they are the law of the land. It’s not the law they follow but there thinking, either left or right.

    1. Very well put, and if not for two things they would be… When they become a law unto themselves, along with the other players in DC (which they have) And WE the People Wake up, Patriots and the 2nd Amendment is the only saving grace for our Republic.

  3. [Editor’s Note: TyranniCull Ent., Thank you for reading and posting here at Oath Keepers. I have clipped the over-hang of that longish essay by Spooner because it exceeds our text-box limitations. I have included a link to the entire essay below the introductory paragraph here. Thanks for understanding.
    Salute!
    Elias Alias, editor]

    No Treason: The Constitution of No Authority

    by Lysander Spooner
    I.

    The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see.
    (snip)

    Please read entire essay at this link: http://lysanderspooner.org/node/44

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