The American Bar Association announced that it is "celebrating" the 215th anniversary of Marbury v Madison - the case taught in all law schools across the nation indoctrinating the young mind of would be attorneys that THIS is the basis of the power of judicial review by the U.S. Supreme Court of unconstitutional decisions by the government.
I posted my opinion about the case - and an interesting discussion ensued showing just about everything that is wrong about our judicial system, as well as about judges regulating livelihood and reputation of legal experts.
First, the history of Marbury v Madison.
One and the same person in this case appears in two capacities - a party in interest and a judge, and that person has actually presided over the case.
President John Adams has appointed William Marbury as a Justice of the Peace, but John Marshall, the then-Secretary of State in President John Adams' administration, neglected his duty and did not deliver the commission.
John Marshall's successor in the position of the Secretary of State, James Madison, refused to correct John Marshall's mistake, and William Marbury sued James Madison.
So, who got himself presiding over the case - tada! John Marshall, the person whose mistake was the central issue of litigation.
Yet, on September 25, 1789, 14 years before Marbury v Madison, the U.S. Congress ratified the 5th Amendment to the U.S. Constitution with a due process clause within it:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation".
William Marbury's ability to work in the appointed position was certainly a due process liberty and property interest.
And, William Marbury also had a due process right to a fair and impartial judge - at the very least, to a judge who is not one of the parties in interest and who is not a person who decides upon his own errors that are the subject of litigation.
For example, in 2017 the New York State Court of Appeals has ruled that a judge - who had no personal involvement in the case, let's assume - could not preside as an appellate judge over the case he decided as a trial judge.
" The right to an impartial jurist is a "basic requirement of due process";
"[t]he Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his [or her] position is 'likely' to be neutral, or whether there is an unconstitutional 'potential' for bias" (Caperton, 556 US at 881).
Not only must judges actually be neutral, they must appear so as well. We therefore conclude that, under principles of due process (see US Const, amend XIV, § 1]; NY Const, art I, § 6), a judge may not act as appellate decision-maker in a case over which the judge previously presided at trial; and
"where there is no opportunity for independent scrutiny by a new decision-maker, the appellate process is compromised, and due process has been violated."
Of course, here NYS Court of Appeals referenced the Due Process Clause of the 14th Amendment, but the 14th Amendment was enacted only in 1868, 65 years after Marbury v Madison was decided.
Yet, at the time Marbury v Madison was decided, an identical Due Process Clause of the 5th Amendment was in effect and applied to actions of the federal government, including U.S. Supreme Court judges - I cannot bring myself to call them "justices", as "justice" has a double meaning which is the opposite of what Judge Marshall did in this case.
The U.S. Supreme Court's review of William Marbury's petition was a one-stop deal - there was no appeal from a higher court available.
Thus, the U.S. Supreme Court had to make sure that the review of the case not only conducted by an actually impartial judge, but that the process would appear impartial to a reasonable observer.
Of course, a party in interest whose mistake is being litigated could not be a disinterested decision-maker in that same case, and John Marshall should have kept himself as far from the case as possible.
That is not what John Marshall did.
John Marshall, instead, grabbed the case, stuck to it like glue, decided it against the victim of his own mistake and, in order to do that, claimed that the U.S. Supreme Court now has the power to review unconstitutional decisions that is not found in the text of the U.S. Constitution.
So, the case is VOID as decided by a party in interest acting as a judge - but at the same time the VOID case is the "basis of the power of the U.S. Supreme Court", and the power is what people do not shed lightly.
Thus, fast forward 215 years, what we have now is the supposed power of the U.S. Supreme Court of CONSTITUTIONAL review based on an UNCONSTITUIONAL and void decision of the same U.S. Supreme Court, and on nothing else.
Now, let's see what the American Bar Association and supporters of this "power of judicial review" say about the case - and remember that licensed attorneys are deathly afraid not to criticize American judges, especially judges of the U.S. Supreme Court, because a judicial whim is all that separates any attorney in the United States from being unable to work in his profession - or in any other decent profession.
So, here is the "Emperor's New Clothes" moment.
So, the ABA celebrates "judicial review" by celebrating a case born of misconduct of a judge in order to quash the victim of his own mistake in his previous position of Secretary of State. Lovely.
I made a comment about it, here.
Here is the first "watch their hands" reply to it:
As I understand, this commentator is a 3rd year law student:
Let's see what this 3rd year law student says:
"We're celebrating the fact that 'it is emphatically the province and duty of the judicial department to say what the law is," and thank goodness for that.
For all its faults, and there are many, it is still THE landmark case that explains how the law of the land works. The judicial branch interprets the laws and its decisions are binding."
Let's go step by step with this announcement, as it mays many things that - legally - do not make any sense.
1. If a decision is void - as it is in Marbury v Madison, because a party in interest decided the case, several things follow from a court decision being void, not voidable, but void, like "a nullity":
- it is not in existence;
- it cannot be THE or "a" landmark case of any kind, and what it explains is irrelevant;
- a judicial decision is not binding if it is made by a disqualified judge.
I guess, they do not teach about judicial disqualification in law school - cautiously so, because if law students do know what attorney regulation is really like, how easily judges may yank an attorney's license on a whim because of criticism of themselves, law students will not pay money for law school and will likely choose another profession, with a less volatile investment into it.
2. "it is emphatically the province and duty of the judicial department to say what the law is," and thank goodness for that".
This is a 3rd year law student, a future lawyer of America talking, after having a mandatory course in Constitutional law (taught in the 1st and 2nd year).
Last time I checked the text of the U.S. Constitution though, it is emphatically the province and duty of the U.S. Congress to say what the law is, and the "province and duty" of "judicial department" is, most emphatically, not to legislate from the bench, but to OBEDIENTLY apply the law of the U.S. Constitution, as well as the law described in its Supremacy Clause - Article 6 Section 2:
- the text of the U.S. Constitution;
- international treaties that the U.S. is a party to;
- laws made by the U.S. Congress.
If the text of the law is not clear to an average person, then the law needs to be re-written by legislators, but the judge's "province and duty" stops at stating - this law is clear and I apply it this way, or "this law is not clear and needs to be rewritten".
So, the province and duty of a judge is to look at the written law and if it is not clear, not even try applying it to facts, but stop right there and say - cannot go further, the law is not clear, the buck passes back to the U.S. Congress to change the law and make it clear for an average person to understand, BECUASE if an average person cannot understand the law, he cannot be expected to abide by it. Easy. That concept, by the way, was pronounced by the U.S. Supreme Court in 1972 in Grayned v City of Rockford (but the court would, of course, never apply its own musings to its own deeds).
There is no "third" in judicial review - "this law is not clear, and I think it means" - and especially not "my decision on what it means is binding". That "third" would be changing the written law through its interpretation, and changing the law is the "province and duty", and exclusive authority of the U.S. Congress, under Article I of the U.S. Constitution.
Yet, law students in the United States are thoroughly brainwashed and indoctrinated to think that anything that the U.S. Supreme Court is doing must be good, excellent, worthy and honorable, even when what the court is doing is clearly wrong and illegal.
Law students are taught, through indoctrination in law schools, and later, through sanctions as attorneys for criticism of judges, not to believe their own judgment applying the law to the facts - especially where it concerns judicial disqualification, or to keep their critical judgment to themselves and voice only praise to the hand that feeds them, the judiciary.
Thus, a "thank goodness" for the judicial legislating from the bench from law student Ginan Acosta regarding the 215th anniversary of Marbury v Madison, thank goodness:
- to the void decision made by a party in interest in litigation;
- to the illegal usurpation by the judiciary of the power "to say what the law is", and
- for insisting that their illegal decisions as to "what the law is" are somehow "binding" on the entire country.
It is that THIRD view that has prevailed so far for 215 years.
That is why people are praying as to what the U.S. Supreme Court might or might not decide as to what this or that law is, and praying for the U.S. Surpeme Court to be so good as to choose to review their petition, while the U.S. Supreme Court in their laziness takes only 70 cases out of 8000 per year, less than 1%, making its direct duty - enforcement of the U.S. Constitution and delivering legal remedies to victims of violations of the U.S. Constitution - "discretionary", a matter of their personal whim.
Let's celebrate the 215th anniversary of the start of this slippery slope.
I had one more commentator on the ABA website, a Michele Thorne. Her profile was empty, but there is a lawyer in the U.S. by the name of Michele Honora Thorne, with 27 years of experience, from Wilmette, Illinois.
I am not at all sure that the commentator is one and the same with the Michele H. Thorne, Esq. from Wilmette, Illinois, but I am positive that the commentator Michele Thorne had a legal training.
Here is what she said.
Let's analyze first just the two first phrases:
1. Arguably Marshall should have recused himself since he was involved in the facts of the case.
2. But that doesn't take away from the significance of the case.
Really?
Look how cautious the commentator is not to say point blank that what Judge Marshall did was atrocious, judicial misconduct and a constitutional violation - a violation of the judge's constitutional oath of office.
It is only "arguably" that Marshall "should have recused" (instead of "had to recuse").
The reason why Marshall "arguably should have recused" is also stated very cautiously: "since he was involved in the facts of the case".
It was a little more than that, actually.
Even though he was not an actual party in litigation (was not included as a respondent or defendant), he was a "party in interest", a person who could have been sued on the same facts of the case as a defendant or respondent.
It was the judge's own mistake in his previous capacity that was to be resolved through the litigation.
And, as we discussed above, when a party or party in interest decides his own case, such a decision is VOID - not voidable, but void, a nullity, as if it never existed.
Yet, Michele Thorne, cautiously acknowledging that the judge "arguably should have recused", then says that "it doesn't take away from the significance of the case" that the judge "arguable should have recused".
Of course, recognition that the obligation of the judge to recuse was not optional, and that the failure of the judge to recuse resulted in a void decision would have made the difference in the argument - but that difference would have resulted in a revolutionary idea that an American lawyer cannot possibly voice: that the entire body of decisions for 215 years, as well as the current "power" of the U.S. Supreme Court may be - let's whisper "wrong?" "unconstitutional?" "illegal?".
No, we cannot possibly say that.
Here is what Michele Thorne says next, let's go by the argument, sentence by sentence.
"The Constitution is the Supreme Law of the land" - true. That is in the text of the U.S. Constitution, Article 6, Section 2, the Supremacy Clause.
"and the Court has the power of judicial review to determine whether acts of governments are constitutional" - the U.S. Constitution has nothing in its text about this power of judicial review, this is what John Marshall decided, not only allowing himself to sit in review of a case where he was a party in interest, but, for that purpose, to give himself the power which is not reflected in the text of the U.S. Constitution.Yet, this double usurpation of power by Marshall is, for the commentator "huge and emphasizes the importance of three strong branches of the government".
How does a double usurpation of power by a disqualified judge, and a grab of power so successful that it
- lasted so far 215 years,
- propelled the U.S. Supreme Court from an insignificant entity occupying one room in the Capitol building to a marble palace and a position of power higher than all other branches, to the point that people are praying what this "court" would or would not decide, and the whole country seriously discussing "stolen seats", stressing partisanship of judges and significance of every of the 9 votes on the "Court" in "making the law" - instead of the U.S. Congress
"emphasize the importance of three strong branches of the government"?
Further statements of the same commentator are even more disturbing.
"Our national legislative branch has become sickly and shrunken when it should have been vibrant and strong".
I do not agree about the "sickly and shrunken" part, but, if that is so, isn't it because the U.S. Supreme Court makes the law, and there is no need for the U.S. Congress to be "vibrant and strong" when the 9 elders sitting (or sleeping) in their marble palace for life decide what the law is for them?
The next comment is just ... rich, I would say:
"Our judicial branch cannot be grafted with unqualified candidates or swayed by the political winds of their appointers".
It would be an ideal situation, yes - but that is definitely not the situation with the U.S. Supreme Court, and this phrase has no relevance to validity of Marbury v Madison, the discussed issue.
The conclusion from this pristine, but irrelevant (for the validity of Marbury v Madison's case) phrase was actually tied right to the supposed greatness of Marbury v Madison. Once again, follow the hands - validity is skipped over, but greatness is emphasized.
The judiciary "must remain strong" - whatever, judges just need to do their job in accordance with their oath of office, whether they are weak, strong or 50 shades in between.
The judiciary must "grow in the direction set forth by the guiding principles of our U.S. Constitution".
It is a lofty phrase, but a totally wrong one. The judiciary must not "grow in the direction" of "guiding principles" of the U.S. Constitution, the judiciary must be able to UPHOLD the U.S. Constitution and qualified to do so at the time of appointment or election to the bench. If the judiciary has yet to "grow" in the direction of the U.S. Constitution, judicial candidates need to do so BEFORE coming to the bench. The judiciary is not a kindergarten for judges who prepare themselves to "grow" towards their own oaths of office.
"Marbury v Madison is an assertion of that power and responsibility".
Once again - Marbury v Madison, as a decision made by a party-in-interest in litigation, is VOID, and an example of judicial misconduct.
An example of judicial misconduct and an unconstitutional decision cannot be a valid assertion of anything - much less of "power and responsibility".
That was not all from that commentator.
When I responded to her comment, she continued to promote her idea that Marbury v Madison is valid.
If my statement that the case is VOID because of a conflict of interest of the presiding judge/a party-in-interest, how can this case be of any importance at all, or a "pillar of our understanding of Constitutional Law".
This last phrase is actually a very revealing one.
"Our understanding" is an attempt to present uniformity of thinking about the U.S. Constitution - that necessarily stems from whatever the U.S. Supreme Court says, however wrong that may be.
That is ideology, ladies and gentlemen, and a long-standing one.
That is also an article of FAITH - because we do not need any oracles to tell us what our own Constitution means, and to shape our uniform "understanding" of our own Constitution.
The 9 people in that marble palace are not gods to be worshiped.
What they say or write is not Gospel.
And, what they say is not the Law of the Land - just read the Supremacy Clause already.
It DOES NOT include decisions of the U.S. Supreme Court - no matter what John Marshall said in Marbury v Madison.
The only reason why such a clearly wrong decision survived for so long is because there are many people who benefit by the usurped power of the U.S. Supreme Court - a power that is NOT in the U.S. Constitution.
But, for an association of professionals whose duty is to ensure people's access to courts and protection of people's constitutional rights, to celebrate 215 years of an unconstitutional decision illegally made as a personal vendetta for embarrassment by a party-in-interest, a case that established the usurpation of legislative duties by a court and establishment of that court as some kind of a collective 9-people monarchy for over 2 centuries in what is claimed to be a "constitutional democracy" is truly shameful.
PS. An update: the ABA deleted the string with "politically incorrect" comments, including comments from two more people that I did not have a chance to see yet - just saw notifications, but needed to do something else before I visited the page.
Quick work, the ABA. As my Russian grandmother used to say, the cat knows whose meat it has stolen.
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