Skip to comments.Marbury v. Madison and the Supremes
Posted on 04/02/2012 3:36:22 PM PDT by MsLady
I've been talking to some people on fb and someone mentioned Marbury v. Madison. I know nothing about it. But, what I'm hearing is this. Marbury v. Madison was a huge fight where the concept of judicial review was established for the first time. Jefferson and Madison were apoplectic at the thought that the Supreme Court could be able to strike down laws as unconstitutional.
So is this what Obama is going to try to use? It doesn't make sense to me. If the Supremes can't strike down an unconstitutional law, what good are they? They can't keep a run away congress, President in check. Doesn't make sense to me.
If someone explains this, please be gentle, I am a lay person. ;)
The USSC was empowered to hear disputes between different states,case with foreign nations,and to review appeals from lower federal courts. Judicial review was something John Marshall pulled out of his a*s.
And the problem is, to paraphrase, Orwell, Marsall made one branch of government more equal than others.
There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.
Here is a good article from the Claremont Review of Books
Sometimes SCOTUS is the last word - or their interpretation of the limits of federal government power is the last word. But, depending on the case, Congress can step up and do its job (fat chance, I know), and overrule a SCOTUS decision. I think early wiretapping laws and phone privacy are Congressional constructs, in light of SCOTUS allowing warrantless wiretapping shortly after phones had been invented, just to pick an example.
As an academic point, there is also the remedy of impeachment, for judges who credibly stray outside of constitutional boundaries. Congress will never use that.
-- I feel that we Conservatives have rolled over for the black robes of many courts and THAT is why we are in a slow boat to Socialist China in our own current government! --
Courts and Congress working in cahoots. Powerful forces at work. There's a sort of Gordian knot, and the people are none too concerned over having a federal government that is radically outside of its boundaries.
We also live way out in no where so it’s either dial up or satellite. We went with hughes net because at the time we couldn’t get Wildblue. They were all filled up, I’m guessing they can only have so many people hooked up per satellite. Since then they launched another satellite so when our contract with hughes net runs out we can switch. And if they don’t fix this thing, we will most certainly be switching.
The 4 liberal justices won’t care. The question is, will Kennedy care?
Good summary and I agree that the precedent is clear beyond cavil that USSCt has final authority over constitutionality of acts of Congress, BUT Obama styles himself as a law professor (lie) and feels he is equally qualified to determine the constituionality of legislation. Today he said that Congrees agreed with him that it was Constitutional, and he said it was not up to a “group of unelected individuals” to say otherwise. He has already called out the court and scolded them to their face in the State of the Union address where they sat as guest stooges with a salavating media trying to read the expressions on their faces or their lips (Alito). He is a true gutter street punk, in your face, without class or pedegree. A constitutional crisis looming. He’s made recess appointments with no guts from Congress to stop or challenge him. Everyone is afraid of him. The Court may well say to hell with it and just let him have his way rather than risk incurring his wrath. Hope not. One thing backing ghe court through the years was free press. No more. The media herd is already saying if they strike down the law then they are guilty of judicial activism and legislating from the bench.
Greta has a couple of posts up about it.
It is the Supremes’ job on the constitionality or unconstitutionality of laws.
So of course Obama want’s us to believe otherwise. That’s what I supsect he ‘professed’ while he was a Constitutional ‘scholar’ as some called him...
And I shall. But, not all that long ago, even we lay people were taught about Marbury vs. Madison in elementary school. It was considered important.
At least you've found a place where you'd hear about it eventually and grasp its importance.
The courts have overturned cases before, you just haven’t heard about it...
Chapter 4 of the TRUTH!
The TRUTH About Income!
In the last chapter we learned the truth about income tax. In this chapter we will learn the truth about the real definition of income itself! Nowhere in the Internal Revenue Code (IRC) is income defined.
So the big question becomes, what IS income? And did you have any that was taxable?
The word “income” is not defined in the Internal Revenue Code, as the court stated in U.S. v. Ballard 535 F.2d 400 at 404, but the Supreme Court has defined it for us in numerous cases.
Stratton’s Independence v. Howbert 231 U.S. 399 (1913) “As has been repeatedly remarked, the corporation tax act of 1909 was not intended to be and is not, in any proper sense, an income tax law. This court has decided in the Pollock Case that the income tax of 1894 amounted in effect to a direct tax upon property, and was invalid because not apportioned according to population, as prescribed by the Constitution. The act of 1909 avoided this difficulty by imposing not an income tax, but an excise tax upon the conduct of business in a corporate capacity, measuring, however, the amount of tax by the income of the corporation, . . .”
“As to what should be deemed “income” within the meaning of Sec. 38, it of course need not be such an income as would have been taxable as such, for at that time (the 16th amendment not having been as yet ratified) income was not taxable as such by Congress without apportionment according to population, and this tax was not apportioned. Evidently Congress adopted the income as the measure of the tax to be imposed with the respect to the doing of business in corporate form because it desired that the excise should be imposed, approximately at least, with regard to the amount of benefit presumably derived by such corporations from the current operations of the government.”
The Supreme Court defines “income tax”, as an excise tax “imposed with respect to the doing of business in corporate form”. If you are not engaged in any corporate activities then you are not liable for an “excise income tax.” This Supreme Court decision also states that Congress cannot tax an individual’s income directly. All direct taxes must be imposed on the states with apportionment. U.S. Constitution Art. 1 Sect 2. Cl. 3 and Sect 9 Cl. 4.
The above case applies to corporations, so if you are not a corporation, then the Corporation Excise tax does not apply to you. The important thing here is the clarification that the income tax is an excise tax, imposed upon the doing of business in corporate form. An the tax is determined by how much income is received. But WHAT is income? The Supreme Court again tells us:
Eisner vs. Macomber 252 U.S. 189 pg 205 (1920) The Sixteenth Amendment must be construed in connection with the taxing clauses of the original Constitution and the effect attributed to them before the Amendment was adopted. In Pollock v. Farmers’ Loan and Trust it was held that taxes upon rents and profits of real estate and upon returns from investments of personal property were in effect direct taxes upon the property from which the income arose, imposed by reason of ownership; and that Congress could not impose such taxes without apportioning them among the states according to population, as required by Art 1 Sect. 2 Cl. 3 and Sect. 9 Cl. 4 of the original Constitution.
Afterwards, and evidently in recognition of the limitations upon the taxing power of Congress thus determined, the Sixteenth Amendment was adopted: . . . As repeatedly held, this did not extend the taxing power to new subjects, but merely removed the necessity which might otherwise exist for an apportionment among the states of taxes laid on income. . . . it becomes essential to distinguish between what is and what is not “income’, as the term is there used;
After examining dictionaries in common use we find little to add to the succinct definition adopted in two cases arising under the Corporation (Excise) Tax Act of 1909 (Stratton’s Independence v. Howbert 231 US 399, 415; Doyle v. Mitchell Bros. Co. 247 US 179, 185)
“Income may be defined as the gain derived from capital, from labor, or from both combined”, provided it be understood to include profit gained through a sale or conversion of capital assets, to which it was applied in the Doyle case pp. 183, 185.
“Derived — from — capital”; — “the gain — derived — from — capital,” etc. Here we have the essential matter: not a gain accruing to capital, not a growth or increment of value in the investment; but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested or employed, and coming in, being “derived,” that is, received or drawn by the recipient (the Taxpayer) for his separate use, benefit and disposal; — that is income derived from property. Nothing else answers the description.
That Congress has power to tax stockholders upon their property interests in the stock of corporations is beyond question; and that such interests might be valued in view of the condition of the company, including its accumulated and undivided profits, is equally clear. But this would be taxation of property because of ownership, and hence would require apportionment under the provisions of the Constitution, is settled beyond peradventure by previous decisions of this court.
Clearly, the definition of corporate income means a gain or profit received from an excise taxed activity. But does this same definition apply to individual income tax? To the Supreme Court again:
Merchants’ Loan & Trust Co. v. Smietanka 255 U.S. 509 (1921) “It is obvious that these decisions in principle rule the case at bar if the word “income” has the same meaning in the Income Tax Act of 1913 that it had in the Corporation Excise Tax Act of 1909, and that it has the same scope of meaning was in effect decided in Southern Pacific Co. v. Lowe 247 U.S. 330, 335, where it was assumed for the purposes of decision that there was no difference in its meaning as used in the act of 1909 and in the Income Tax Act of 1913. There can be no doubt that the word must be given the same meaning and content in the Income Tax Acts of 1916 and 1917 that it had in the act of 1913. When to this we add that in Eisner v. Macomber, supra, a case arising under the same Income Tax Act of 1916 which is here involved, the definition of “income” which was applied was adopted from Strattons’ Independence v. Howbert, arising under the Corporation Excise Tax Act of 1909, with the addition that it should include “profit gained through sale or conversion of capital assets,” there would seem to be no room to doubt that the word must be given the same meaning in all the Income Tax Acts of Congress that was given to it in the Corporation Excise Tax Act, and that what that meaning is has now become definitely settled by decisions of this Court.”
The word “income” has the same meaning in ALL the income tax acts of Congress. That meaning has been declared to be corporate profits and gains and has been definitely settled by the Supreme Court. So, did you have income that is taxable? Did you have a gain or profit from a corporate activity? Remember that the income tax is an excise tax on the doing of business in a corporate capacity. That is the ONLY way that you can receive taxable income, as legally defined by the Supreme Court.
If you relied on these never overturned Supreme Court rulings in your beliefs, does your reliance on these plain rulings constitute a frivolous position? The IRS says it does!
So, if you had NO corporate income tax liability for this year, you had zero “income” as legally defined by the U.S. Supreme Court. A corporation is NOT taxed on ALL its income, from whatever source. It is only taxed on it’s profit. If that is the case then why are YOU taxed on ALL your income from whatever source? You are also allowed to deduct SOME expenses. Does that mean that if you work for a corporation and you exchange 40 hours of your labor for $600, that you had $600 of profit, minus deductions? If a corporation exchanges $600 for 40 hours of your labor, did they also have a profit? NO! They can claim ALL your labor as a deductible operating expense. So why is it that why you exchange one property (your labor) for another property ($600) that in that exchange, you had a profit and the corporation had a deduction? Why is it a profit for you but not for the corporation? The answer is that it is not a profit for EITHER of you! And therefore it is not taxable income, as defined by the Supreme Court.
The Supreme Court has ruled:
Eisner vs. Macomber 252 U.S. 189 pg 205 (1920): “ The Sixteenth Amendment must be construed in connection with the taxing clauses of the original Constitution and the effect attributed to them before the Amendment was adopted. . . .taxes upon rents and profits of real estate and upon returns from investments of personal property (labor) were in effect direct taxes upon the property from which the income arose, . . . that Congress could not impose such taxes without apportioning them among the states”
The Supreme Court has plainly stated that an individual’s income cannot be taxed directly: But an individual’s income CAN be taxed with an excise tax, IF it was received in a corporate activity. More on this later.
Stratton’s Independence v. Howbert 231 U.S. 399 (1913) “As has been repeatedly remarked, the corporation tax act of 1909 was not intended to be and is not, in any proper sense, an income tax law.
Corporate “income” (profits and gains) CAN be taxed with an excise tax, but the income itself is not taxed because it is property. Therefore income tax is not on income, it is on profits. It is not an income tax law, it is a profits tax law. Are you engaged in, or did you receive income in connection with, any corporate activities? Receipts received from labor or private investments are not corporate “income” and therefore do not fall within the legal definition of “income” as defined by the Supreme Court.
“Income” is legally defined as a corporate gain of profit in the Internal Revenue Code. Nowhere is there any different definition.
The definition of income used in the Corporate Excise Tax Act of 1909 is the same definition used in ALL the income tax statutes.
“Gross income” would then be the total income of a corporation, from all sources.
“Taxable income” would therefore be corporate gross income, minus allowable deductions. Also known as profit. If a corporation had no profit, then it had no taxable income. If you are an officer of a corporation, then you had individual income that is taxable.
Anytime the Internal Revenue Code mentions the word “income” it is talking about corporate income.
More info on this is in the chapter on the 16th Amendment.
If a case of the types you mention comes before the Court in the ordinary course of its business, and the Court is faced with a conflict between a federal law and the Constitution, it obviously must decide which of the two should be enforced. Equally obviously, it should be the Constitution.
Do you think otherwise?
Judicial review has obviously been wildly overused and misused, but the principal itself is implicit in the Constitution.
The most egregious examples of Court abuse of its powers, such as Roe v Wade, have little or nothing to do with judicial review as such. The Court in these cases isn't settling a conflict between the Constitution and a law, it's making things up and then claiming they were in the Constitution all along.
"...someone mentioned Marbury v. Madison. I know nothing about it. But, what I'm hearing is this. - Marbury v. Madison was a huge fight where the concept of judicial review was established for the first time. - Jefferson and Madison were apoplectic at the thought that the Supreme Court could be able to strike down laws as unconstitutional.
So is this what zer0 is going to try to use? It doesn't make sense to me. If the Supremes can't strike down an unconstitutional law, what good are they? - They can't keep a run away congress, (and/ or) _resident in check. Doesn't make sense to me.
Article and # 29.
. . . . See # 17, also.
Sorry. The enumerated powers of the Supreme Court don’t include judicial review. And the concept of an “implicit”power is right up there with the Constitution as “living document”.
Exactly. In Roe v. Wade the Court implicitly inserted a right to privacy into the Constitution.
In other cases, such as Gideon v. Wainwright, the Court extrapolated language that was already in the Constitution and interpreted that it meant indigent persons were to be provided the assistance of counsel by the state. This was a correct interpretation, IMHO.
Still further, the Court has also taken the EXACT words of the Constitution and applied what it believes the Founders' intent was when drafting the Constitution - as in District of Columbia v. Heller [right to bear arms].
ALL of these opinions stem from Marbury v. Madison, where the Court asserted the right to judicial review. And it is this case that forms the bedrock of moral authority the Court enjoys as a check on the other two branches of Government ...
One of the ultimate forms of legal checks-and-balances has been pretty much ignored.
Article III “The trial of ALL CRIMES shall be IN THE STATE...”
This was slightly amended by the sixth amendment, The trial of all crimes shall be in the state or the district where committed... but the sixth amendment DID NOTHING TO EXPAND THE FEDERAL DISTRICT BEYOND IT’S ORIGINAL MEANING!!!
The FEDERAL DISTRICT IS THE TEN SQUARE MILES CEDED FOR THE PLACE OF GOVERNMENT, FORTS, DOCKS, PORTS OF ENTRY, AND ANY LAND LAWFULLY CEDED TO THE FEDERAL GOVERNMENT!!!
So if some alphabet agency busts down your door for not having a low flow toilet, they are supposed to get charges filed against you IN THE STATE!!! IN A STATE COURT and let things go from there!!!!
The states NEVER, either before or after the ratification, gave the federal government ANY KIND OF GENERAL POLICE POWER!! NEVER!
That’s just about the ultimate power of sovereignty, and they just did not give it up. Plain and simple.
this is a good thread. Excellent remarks, both lay and expert.
I especially like the added oomph! provided by the double postings.
Ok, got my tin foil hat on. Why did homeland security just purchase 450,000(or was that 450 million?)rounds of hollow point bullets? Taking tin foil hat off.
This is true. At least for now anyway. It might have been taught in school, but, I’ve been out of school for many, many, many....well you get the picture ;)
"...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights..." (Alexander Hamilton speaking of standing armies in Federalist 29.)Interesting, isn't it, that we hear all this crap about the sportsman and the 2nd Amendment from those politicians who are the most eager to exert supreme national power over every aspect of the citizens' lives? No, the 2nd Amendment is for the people to protect themselves from those politicians who overstep the Constitutional bounds of their elected office.
"Besides the advantage of being armed, which the Americans possess over the people of almost every other nation. . . Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." (James Madison, author of the Bill of Rights, in Federalist Paper No. 46.)
"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." (Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym `A Pennsylvanian' in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1)
"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people" (Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788)
"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." (Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights, Walter Bennett, ed., Letters from the Federal Farmer to the Republican, at 21,22,124 (Univ. of Alabama Press,1975)..)
"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined" (Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836)
"Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?" (Patrick Henry, 3 J. Elliot, Debates in the Several State Conventions 45, 2d ed. Philadelphia, 1836)
"The strongest reason for people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government." -- (Thomas Jefferson)
"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence ... From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . the very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good" (George Washington)
Your right they weren’t hollow point. It’s a scary thought of why they might need this much ammo. What are they expecting? Is it overreacting of paranoid government officials? Are they trying to corner all the ammo so there is a shortage? I can bet you it isn’t for the occupy crowd. If Occupy had done to the government what they have done to businesses and local communities the government would not have been so generous.
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