Marbury

by Jim Davies

Exclusive to STR

November 5, 2009

There's a legal case which changed the face of America, and which poisons a great deal of contemporary life; it's known as Marbury v. Madison, and was decided by the Supreme Court of the United States (SCOTUS) in 1803. That was the year the Judicial Branch drove through the gaping hole left for it by Article Three of the Constitution (which gives it very few powers and imposed few restrictions) and handed itself the power to act as the final arbiter of law in this country. In its decision came these words of John Marshall, the Chief Justice:  

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."  

The details of the case are not important, so let's dispose of them quickly and then get down to its serious significance for us. In the waning days of Adams ' Federalist administration, he had appointed one of his cronies, William Marbury, a Judge in the District of Columbia . However, it fell to Madison, the Secretary of State in Jefferson 's incoming anti-Federalist government, to confirm the appointment by issuing the papers of commission, but he declined to do so. Marbury was naturally peeved, and sued to have Madison compelled to issue them, by a "writ of mandamus."  

Marbury chose to file with the Supreme Court directly, and not first to some inferior Court, because the Judiciary Act of 1789, in §13, expressly gave the Supreme Court the "power to issue writs of . . . mandamus" as well as the power to hear appeals from lower courts, which does appear in Article Three.  

Here's where the brain begins to bend. Marshall's Court rejected Marbury's suit, on the grounds that a mere act of Congress cannot delegate power to SCOTUS; that's the right of the Constitution writers or amenders only (so far, so fair) and hence that Judiciary Act was unconstitutional and so Marbury was in the wrong jurisdiction.  But then Marshall continued with the words quoted above: "It is emphatically the province and duty of the judicial department to say what the law is." This is breathtaking; he was saying that Congress can not define the powers of the judicial branch, but that the judicial branch itself can!  And he did so by declaring the act, which purported to give his court extra powers, to be void! Don't know about you, but I think that's one of the most cunning and hypocritical power-grabs in history.  

I suppose he might, had he been challenged, have defended his action with a straight face, saying that in order to prevent Congress setting a precedent by amending the Constitution (which the Judiciary Act would indeed have done) he "had" to take the power himself, for the Court, to determine what is, and is not, Constitutional. If not he, then who?  

That five-word question was never asked, as far as I know, and yet it is critical to the theory of limited government.  

If government consists of a dictator (or monarch, or high priest), there's no problem: whatever he decrees is law. Those bring some downside, however, in the form of extreme discontent often expressed in coups, bloodletting and revolutions every few years, so these days most pols try to prolong their careers by pretending to govern by the will of, or with the consent of, the governed. It's a ridiculous fiction, for if consent is given, no governing is done, while if governing is done, consent is obviously absent.  But repeat an absurdity often enough when minds are young and impressionable, and it tends to worm its way into lore as well as law. So it has been with America , and in Marbury it collided with reality. Then, the question was, who really rules?  

Article One says the "Congress" does, and that's a nice, soothing lullaby because Congresscritters have to get re-elected quite often, so as to sustain the fiction that it's really We The People who are making our own laws. But in practice, Congress messes up and contradicts itself, and even does what is not allowed by its terms of reference--as in the 1789 Judiciary Act, in the very first decade of its existence. Who, then, is to slap it on the wrist?  

It can't be the Executive, for the Prez is clearly only supposed to execute the expressed will of Congress (Ha!). That leaves only the judiciary, but Article Three doesn't give that branch any particular powers at all--certainly not to overrule Congress. And none of the three are allowed to change their own terms of reference, the Constitution--yet here in Marbury, the Supreme Courtiers scolded Congress for trying to do just that, and in the next breath went ahead and did it themselves. That they did for the first time then--but not for the last; in Eisner v. Macomber (1920), they lectured Congress about not having the power to define the critically important term "income" (because it's used, but not defined, in Amendment 16), but then solemnly defined it (quite well, as it happens) themselves, thereby amending the Constitution with nary a whisper that for that task the States are supposed, by Article Five, to muster a 3/4 majority. Their arrogance is almost unbelievable.  

SCOTUS has therefore in practice grabbed the power to make law, so making nonsense of the notion that The People elect representatives to do that job; and the Supremos aren't elected, therefore "limited government" is a farce and a fiction. It doesn't exist, and hasn't existed since 1789, or certainly not since 1803. Not, mind you, that things would be much improved if it did exist; for rule by a majority is still rule, only slightly less odious than rule by oligarchs. Only a society in which all obligations are undertaken voluntarily--a "free market"--is consistent with human nature.  

Let's check, though, how well or poorly the judicial branch has used its power to make law. It hasn't all been destructive. There have been a few decisions that brought ordinary people benefit by restricting the power of the other branches, none more so than the Pollock one of 1896, which struck down a Congressional attempt to tax individuals' property directly without the "apportionment" required by Article One, Section Two.  Pollock is still "holding" (never reversed or overturned) and so on that basis alone (though there's very, very much more!) the income tax does not exist in law, and so is being enforced illegally.  

The subject of this alleged tax is of vast importance, because it funds a majority of the entire government industry. Directly, as a quick reference to the helpful IRS Pie Charts (p.100) at the back of any 1040 booklet will show, it provides half of all Federal revenue. Then indirectly but by arithmetic link, it adds as "Social Security Contributions" a further third, making five sixths of it in total. Then it provides a handy template for 44 states to copy and piggyback, so furnishing a majority of all government revenues at the state and city levels. I'd be surprised if the total was less than $4 trillion a year, two thirds of the entire heist. Take it away, and all the other problems we have with government would shrink by that fraction.  

Seventeen years after 1896, Congress tried (and failed) to wriggle out of the Pollock prohibition with Amendment 16, and the Supremos again got it right, though this time with convoluted language probably designed not to be understood by plain folk--yet in cases between 1916 and 1921, they definitely said that "the [16th] Amendment contains nothing repudiating or challenging the Pollock case" and that it "gave Congress no new taxing power" (both from the Brushaber decision) and "The provisions of the 16th Amendment conferred no new power of taxation" (from Stanton v. Baltic Mining). There are several others in similar vein. That Amendment 16 "conferred no new power of taxation" comes as a complete jaw-dropper today to everyone in the political arena, and I bet you never heard it from your government-school civics teacher.  

In the nine decades since then, however, SCOTUS has done very little to protect us from the ravages of the income tax. The only favorable rulings that come to mind were those of Cheek in 1991 and Bishop in 1973. The former said that a jury may properly acquit a tax-case defendant if satisfied that he acted with a "good-faith misunderstanding of the law" and the latter, that "the requirement that an offense be committed 'willfully' is not met . . . if a taxpayer has relied in good faith on a prior decision of this Court . . ." Those 1916-21 cases provide just such a set of excellent "prior decisions" on which one might rely.

Otherwise, the judicial branch has proactively helped enforce this illegal tax at lower court levels, while remaining lethally silent at the topmost level; the most recent example is the October conviction of Pete Hendrickson, whose judge refused to let jurors examine the law for themselves, lest it "cause them to speculate as to its meaning." There have been plenty of appeals with which SCOTUS could have killed the tax stone dead, but every one of them were "denied certiorari"--that is, the Court declined to "hear" them, a fate met by 95% of all appeals to that body. It has never endorsed its enforcement, but it has never interfered with it, either. It therefore qualifies for full membership in what Irwin Schiff has well called the "Federal Mafia," and, on the basis of Marbury, senior membership at that.

Would the history of the last two centuries have been happier, had the Marbury case had a different outcome?  

It's very hard to say, because the only other possible outcome was that SCOTUS accepted that Congress could define its powers and amend the Constitution (regardless of how it disposed of Marbury's complaint). If it had not ruled the 1789 Judiciary Act unconstitutional, it would forever have been hobbled--while Congress, instead of the judicial branch, would have become the final arbiter of its own laws and the mob rule that is "democracy" would have run wild and completely unrestrained ever since. Would that have been better or worse for us? It sure doesn't give me any warm, cozy feelings.  

Here's the wrap: the particular way government arranges its affairs in this country is a fairy tale. Powers allegedly granted are divided, but not in the way described in its terms of reference.  Branches L, E and J have all grossly exceeded those powers and by Marbury, Branch J hoist itself up by its own bootstraps to be the ultimate source of law for all, while being answerable to nobody, so demonstrating that the pretty design for government of, by and for the people simply cannot work. In an earlier article here I noted that the alleged grant of all powers is in any case a fraud, since "We the People" never took a direct hand in the matter even in the 18th Century, let alone the 21st, and even if they or we had, the powers said to be granted are not within the possession of any person to give away or delegate in the first place.  

There is no rational alternative to a free market.