FReeper Book Club: The Debate over the Constitution, Brutus #11

A Publius/Billthedrill Essay | 7 September 2010 | Publius & Billthedrill

[Publius]

Ping! The thread has been posted.

Earlier threads:

FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46

[Virginia Ridgerunner]

Yates obviously had a very potent crystal ball.

[Publius]

Either that, or he had a good eye for loopholes within the law.

[AnalogReigns]

At 39 through 41, Brutus points out that decisions of the Supreme Court are final and cannot be appealed to Congress, short of amending the Constitution. Is this something that should be changed, and in what manner?

I wonder about this, as, as heretical as it seems to most all lawyers and judges (since it is foundational to their power and importance...), I'm still not convinced as to the full constitutionality of Marbury v. Madison. It seems to me that Marbury was the first major incidence of judicial activism which today of course in certain incidences has become full blown judicial tyranny (see Roe v. Wade).

I can't say I have any solution, except that there needs to be one:

5 senior citizens should not be deciding the most controversial issues of the day based on the fictional quicksand of a "living Constitution" as that is simply not in any way democratic...or fit for a great Republic.

[Cheburashka]

Newt Gingrich demolishes Judicial Supremacy.

http://www.judicialsupremacyvscoequalbranches.com/?page_id=2#video

Newt should not have gone into politics, teaching his what he does best.

[Virginia Ridgerunner]

Pennsylvania Surpeme Court Judge John Bannister Gibson's famous dissent in the case Eakin v. Raub concerns this very issue. I used to think that Gibson was crazy in my young stupid student days, but have come around to thinking that he was absolutely correct.

Marshall V. Gibson: Head To Head

[Bigun]

I'm still not convinced as to the full constitutionality of Marbury v. Madison. It seems to me that Marbury was the first major incidence of judicial activism which today of course in certain incidences has become full blown judicial tyranny (see Roe v. Wade).

That my FRiend is a VERY astute and correct statement!

The idea that men who had just defeated the greatest power on earth to gain their freedom would turn around and give federal magistrates the power to determine the limits of that new federal government is just plain ludicrous!

[Bigun]

I had not previously seen these lectures but I can tell you that my estimation of him has just been elevated by several degrees as he is RIGHT ON in what he has to say in them!

Thank you VERY much for posting the link!

[Publius]

Several weeks ago, someone posted an article from "Natinal Review", "Weekly Standard", or some other publication that argued that Marbury never was intended to be as sweeping as has been claimed. It was the Warren Court that took Marbury to excess.

I wish somebody could find that article.

[Publius]

Never mind. I found the information in the first half of Gingrich's speech. It was the 1958 Cooper decision.

[Cheburashka]

As a teacher Gingrich is brilliant. A year or two after he left the speakership he did a series of lectures called “Renewing American Civilization”. They were broadcast on Saturdays on a small radio station near me. I was blown away by how good they were. I wish I could find them on the internet, or even on CD for a reasonable price.

Newt as a politician, anyone who says he is fatally flawed will get no argument from me.

[Bigun]

I have now listened to both parts of the lecture series you posted and it has certainly been worthwhile. I find myself in agreement with Newt on all points except his seeming agreement with Lincoln in asserting that the Declaration of Independence is law in the U.S. With that I fervently disagree.

[Huck]

Brutus attacking Article 3. It’s almost like listening to music. Of course he was deadly accurate about the supreme federal judiciary. If you wanted a restrained federal government, you couldn’t want Article 3.

[Huck]

I can't say I have any solution, except that there needs to be one:

The solution is to ditch Article 3.

[Huck]

I find myself in agreement with Newt on all points except his seeming agreement with Lincoln in asserting that the Declaration of Independence is law in the U.S. With that I fervently disagree.

I may have to watch it. I'm curious. I think big government constitutionalists ("federalists", and later lincoln, webster, now most conservatives are at best "federalists") need to give the declaration force of law. They need to BIND everyone together as one nation, by hook or by crook.

[Billthedrill]

There is a rather interesting school of legal thought named Declarationism, whose proponents favor incorporating the Declaration of Independence into formal American jurisprudence, largely around principles of natural law that informed the Declaration. That opens up a rather sweeping critique of case law as it is currently implemented in the United States.

Clearly these principles were in the minds both of the Federalists and the anti-Federalists as well, and will develop as we continue our study of the Federalist Papers. Fascinating stuff.

[Huck]

Newt's out of his mind. He's arguing that 1958 was a turning point in judicial supremacy? Brutus' attacks on Article 3, here and elsewhere in his writings, clearly demonstrate that the problem is structural, and was present from the beginning. It didn't happen in 1958. It happened in 1787.

Once the system got up and running, how long did it take for the tenor of the "federal" court to be clear? Maybe up until the Adams administration? The problem is Article 3, as written and understood at the time.

[Bigun]

Did you even listen to Newt’s lectures? Are you even remotely familiar with the material he cited in those lectures?

If not, take the time to listen to what he says before going of the deep end.

[Huck]

Yeah, I listened. He said so many foolish things I bailed out, but I’m listening again now. I doubt he’s going to convince me of anything. His premise is incorrect. But I’m listening.