Mount Vernon v. Marbury, or: Two shall enter, one shall leave...

>> Friday, February 19, 2010

The Mount Vernon Statement might be the gift that keeps giving this week. Yesterday, I planned on writing about a minor what-the-hell-were-they-thinking aspect of the Constitution, but ended up writing, instead, about how the American Civil War was the Founding Fathers' fault. So maybe for today's entry I should go back and talk about Article III like I meant to in the first place. What the hell, right? And maybe I can come up with something interesting for the weekend.

One of the funny things about originalists like the Vernonites is that if you go back to the Constitution they think existed and try to read it, you discover that it describes something alien and unrecognizable. Presidents are elected by states, not the people. Senators are chosen by state legislatures. Some people only exist as fractions. States have rights, sort of, as long as they stay in line. And then there's Article III.

Here it is, in all its glory:


Article III

Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.
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;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.


Nice, isn't it? Succinct, to the point, establishes a branch of government that hasn't existed since 1803.

Those who have heard of Marbury v. Madison know where I'm going with this, and I have to wonder if I should belabor the point. What happened, for those needing the refresher, is that Congress unconstitutionally tried to give the Supreme Court the power to issue something called a Writ Of Mandamus, which is basically an order to do something (in this instance, a Writ directing the Secretary Of State to deliver the previous presidential administration's mail); however, when asked to execute this power, the Supreme Court responded by unconstitutionally decreeing that it didn't have the power Congress had unconstitutionally extended to the Court.

See, one of those simple cases of two wrongs making a lasting historical and legal precedent radically altering the relationship between civic institutions.


If you want to understand, sort of, the logic of the Supreme Court's decision in Marbury, you can just scroll up the page, or maybe hit "CTRL-F" in your browser and typing "writ of mandamus" (capitalization optional unless you checked the box that makes it not). Scroll through Article III, reproduced above, and read the part where it says "Writ Of Mandamus." See--it's not in there, so the Supreme Court can't issue one, neener neener.

But now for the fun part. Scroll up again, or "CTRL-F" and type "declare act of Congress unconstitutional" and try to find that. Yeah, yeah, you already know--that's not in there, either. Matter-of-fact, the Article III version of the Supreme Court doesn't actually do much of anything. Okay, that's an exaggeration--the Supreme Court is a court in Admiralty, so they (or such inferior courts as established by Congress) decide shipping disputes and marine salvage claims. And lawsuits between states. And cases involving ambassadors. Alright, so the Article III court actually does a lot, I take it back. But what the Supreme Court Of The United States explicitly does not do in any way shape or form according to Article III of the Constitution Of The United States is the thing that everybody thinks the Supreme Court does, namely, decide whether statutes are unconstitutional or not.

The closest, the very closest you can come to that is in Section 2, first paragraph: "cases, in law and equity, arising under this Constitution." But note that this doesn't give the judicial branch the power to throw a law out, it just gives the judiciary the power to hear cases. You could (and perhaps if you want to be strictly constructional, should) read that to mean that the judiciary has the power to try cases that the Constitution says the judiciary has power to try--i.e. treason. Limited government, indeed.

At this point, I have to admit that I don't know if the Vernonites really believe American law should be rolled back to 1803, or if they want to have-and-eat the cake, or if they're just liars. The last one seems plausible--one can imagine some of the Vernonites believe Marbury was wrongly decided and ought to be reversed (good luck!) and just don't want to tell anybody because, really, most conservatives like getting laws declared unconstitutional as much as anybody. (See also.) Saying that the country has been on the wrong course since Obama's election or the Clinton administration or FDR is one thing--saying American history has gone straight to hell since the beginning of the Jefferson administration is pretty damn hardcore. I have to respect that. Grudgingly. And ask if you own a powdered wig.

Or is it that the Vernonites just don't know what the hell they're saying? Did I hear a bell? Do we have a winner?







Image ©2007 swatjester provided via Wikimedia Commons,
used under a
Creative Commons Attribution-Share Alike 2.0 Generic license.

1 comments:

neurondoc Friday, February 19, 2010 at 10:25:00 PM EST  

I learn so much from these posts. thanks, Eric.

Oh -- dingdingding -- you do have a winner.

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