Tuesday, October 19, 2010

QOTD: John Marshall

Today's Quote of the Day comes to us courtesy of the Cornell Law Library's online repository of court cases:
The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
Chief Justice John Marshall, in delivering the opinion in Marbury v. Madison

Our Constitution is the fundamental founding document of our Government. It has specific and defined limits of authority assigned to each branch of our Government. It has proscribed areas in which the Government may not meddle. Any actor or agent of the Government who attempts to usurp power not given them through the Constitution is an outlaw. Any person who attempts to enforce laws which are repugnant to the Constitution is an outlaw and a criminal, is violating their Oath of Office, and should be defended against as such. This is one of the reasons that the Statists try so hard to nominate people to the courts who have an elastic view of what is Constitutional. If they twist the plain meaning of the plain text, if they torture the words enough, perhaps anything they can then dream up will be deemed as acceptable to the Constitution.

When I was in high school, our civics class covered the Constitution, including the Marbury v. Madison case. Do they still do so? I would bet not. It interferes with the teaching that the State is supreme...



Mike W. said...

When I was in high school, our civics class covered the Constitution, including the Marbury v. Madison case. Do they still do so?

I know they still taught it in my undergrad Con Law classes as of 2004.

Obsidian said...

They do teach it in High School, and of course no 1L Con Law syllabus is complete without a lengthy discussion about Marbury and it's arguably more important cousin, McCulloch v. Maryland.

I'd like to point out that Marshall's opinion in Marbury, for all the speechifying it does about placing limits on the federal government, is actually quite a power grab for Marshall and the Supreme Court--Judicial Review of Congressional Acts, for example, is found nowhere in Article III, nor is it found anywhere else in our Constitution.

Newbius said...


The irony of that was not lost on me. In pointing out that "laws repugnant to the Constitution are void", he usurps Judicial Branch power over the Legislative body in a manner that is itself repugnant to the Constitution. In so doing, he also places newly-enacted legislation in a type of limbo, upon the first challenge to the new law.

Would that we could depend upon our Legislators to only act in a manner that is faithful to the Constitution's limits to their authority. Sadly, the nature of power is corrupting, and desires to be self-protecting once gained.