Posted: May 8th, 2010 by Militant Libertarian

by Jim Davies, LRC

It’s often said that America was once a free country, but that its freedom has been heavily damaged by a relentless growth in government. Some (like Aaron Russo in his documentary America: from Freedom to Fascism) date the decline from 1913, when the Federal Reserve was chartered and the Income Tax enacted; but I no longer think it began that late. The “Pristine State” advocates suppose that there was once in our history a kind of Eden from which we have fallen, and so that all we need now is somehow to get back there – to “constitutional rule.” There wasn’t, and we don’t. I think our troubles began no later than 1789.

The drafting was done in 1787, and the needed nine States had ratified it by June 21st, 1788, so the Constitution became supreme law on that day. Then on March 3rd 1789 Congress opened its doors and the following month George Washington presided. It’s very interesting to notice what the new Congress did, in its first session, from March through September of that year.

It committed six acts, before going home for the winter in September. See if any of them give you warm, fuzzy feelings; and in a moment I’ll focus on the sixth, because of its huge importance.

First came some administration; deciding on how oaths of office were to be taken. Not too much there to bother us.

Second was the “Hamilton Tariff,” under which revenue was to be raised. So the second-ever Act of the US Congress was to arrange for the confiscation of property. Sure, it was Constitutional – it was a set of tariffs, imposed on certain imports; some must have recalled that it was a tariff on tea that had sparked the Revolution in the first place, so may have wondered whether anything had changed except the geographic location of the thieves. The import duties favored Northern manufacturers by making foreign goods seem more expensive – it was protectionist – and hurt Southerners by making them pay more. From Day One, a division was being fashioned that led after seventy years to open warfare. So the first substantive thing Congress did was to start to set the scene for internal conflict.

Third came an establishment of “Foreign Affairs” – now the Department of State – by which the new government was to execute “policies” towards other nations. If the intention was to have a perfectly uniform policy towards all, that would not have been needed. By establishing one, it was clear there were to be some nations more favored, others less favored. That’s what a “foreign policy” means, and it is ultimately the cause of war and, in our own era, of the unconventional war called “terrorism”; for had there been no foreign policy favoring Israel (recall Biden’s call in March for “no space” between the policies of the US and Israel?) there would have been no 9/11, or if there had been one favoring Palestinians there would have been a “9/11” much sooner and much more devastating, executed by Mossad. So the third Act in the history of the new government was to set the scene for all future external conflict.

Fourth was an Act to set up a Department of War – now euphemized as “Defense” – and that was very logical. You play favorites with other nations, eventually you’ll need to fight some of them. Better get ready.

Fifth came the Department of the Treasury, to take in and account for the collection and spending of the money confiscated by Act Two. It is to this Department that today’s IRS belongs, so I need say no more.

So far, it’s not too hard to detect the beginnings of all the most loathsome attributes of any government: tax, distortion, discord and warfare. This is to what our well-meaning “Constitutionalist” friends want to get us back.

The sixth action of that first session bore fruit on September 24th, 1789 and was the “Judiciary Act” – and it’s notorious and breathtaking. Here’s why.

On its face, its purpose was just to flesh out Article Three, which said there was to be a Judicial Branch in the new government. It had to do with establishing Courts – Supreme, District, Circuit – and government Attorneys, General and less general. But as well as that administrative stuff, the 1789 Judiciary Act declared that the Supreme Court had the power to hear actions for “writs of mandamus” as one of original jurisdiction, and so not to be just a court of appeal. Congress was therefore purporting to grant to its sister Branch a power which Article Three never gave it.

Oops! Right off the bat, in its very first session, Congress therefore tried to do something it was not empowered to do (if you’ll allow for the moment that, contrary to Spooner, the Constitution actually empowered anyone to do anything). In so doing, Congress demonstrated its disdain for the fences placed around it by Articles Two and Five. Very clearly, government today acknowledges no limits on its power; the 1789 Judiciary Act made it plain that Congress never did acknowledge such limits, even in its very first session.

Was this arrogation of power deliberate, or inadvertent?

Either is possible if the Act is considered in isolation, but it wasn’t isolated. While the Constitution was being drafted, Alexander Hamilton and other Federalists had wanted to specify powers for the Judicial Branch, just as the charter did for the other two Branches, and in particular to grant it the power of “Judicial Review,” i.e., to say what is, and is not, valid law. He argued that that is what high courts normally do. However in Article Three no powers were granted to it at all, so as it’s fair to presume that it was not to have zero powers (otherwise, why set it up?) consequently Article Three left them wide open – for unlike the wording of Articles I and II there are no limits or prohibitions named, either. It was a blank check, whose detail could be filled in later.

If Hamilton had had his way and the Constitution as drafted had said something like “The Supreme Court shall have power to decide what is law and what is not law” the new government would have been plainly seen as a dictatorship, and in my humble opinion it would have not had a snowball’s chance of getting ratified; even as it was, that process was no sure thing. So that’s why they left it blank – while the Federalist majority intended all along that such a power should, indeed, be owned by the Judicial Branch so that the new government could (with a little delay, and with its cooperation) do anything it wanted to do, while operating under the pretense of being strictly limited.

So Congress’ 1789 attempt to endow the Supreme Court with a new power (to hear certain cases with original jurisdiction) was not accidental, but deliberate; that particular power wasn’t very important, but it was to test the waters, establish a precedent. If they could grant it one small power then, they could later grant it bigger ones, and so eventually equip it with absolute, law-determining power. Take an inch at once, so as to take a mile later on.

Success came soon: Jefferson won the 1802 election and in the changeover from Adams’ administration a certain judge, William Marbury, was not given his proper paperwork to take up an appointment in D.C. So he took advantage of the Judiciary Act, and filed with the Supreme Court a suit for a “writ of mandamus” – to handle that matter at once – against the new Secretary of State, Madison.

John Marshall’s Supreme Court delivered a well-reasoned opinion, which confirmed that Marbury was properly entitled to his new job, but that the Supreme Court was not legally entitled to issue the requested writ. Marshall wrote that the Congress had no power to endow the Court with the right to hear such petitions as one of original jurisdiction, for by so doing it would have amended the Constitution, contrary to Article V. He was right; the 1789 Judiciary Act was unconstitutional. So as to clarify that Congress was not the final arbiter of law he then went on to write the sentence now engraved on the wall of the Supreme Court building:


Now, here’s the awesome trick that was being pulled: in the very act of declaring that Congress was not entitled to amend the Constitution, Marshall’s court was itself amending the Constitution! – or purporting to do so. Why? – because in Article Three, the Judicial Branch is not empowered to declare whether or not a law that Congress wrote conforms to the Constitution. That power of final arbitration or “judicial review” is simply not there. Hamilton wanted it there, and argued that it was implicitly there, but in fact it is not. Therefore, in issuing the Marbury opinion, Marshall put it there: he did for his own Branch exactly what the decision itself said was not allowed for another Branch.

Did his court have any alternative? – I don’t think so, but to judge from the enthusiasm Marshall used in the quote above, I doubt whether that worried him. The Marbury decision filled in the blank check of Article Three; that was how power was grabbed. Since 1803, what is and is not law has been determined not by “The People” or their alleged representatives in Congress, but by a cabal of government people who decide what’s to be done and, if challenged, get the Judicial Branch to declare it legal. The yawning chasm between what courts now routinely enforce regarding income tax, for example, and what USC Title 26 actually says (and indeed what the Supreme Court said about unapportioned direct taxes, between 1896 and 1921) is thereby fully explained: the Judicial Department “says what the law is,” really and truly and actually, and so it’s been ever since 1803 thanks to the empty text of Article Three and toMarbury v Madison.

Was the Marbury decision itself Constitutional? – that’s the nub of the matter. No, of course it wasn’t, for the Court exercised a power it had never been given. Yet on the other hand it exercised a power it had never been denied, either, and as Hamilton persuasively argued in the The Federalist #78, Judicial Review is quite customarily a normal function of high courts and so the power was implicit in Article Three even though not explicit. We can note also that even the power to decide simple cases of lawbreaking is not explicitly described there either, along with the prerequisite power to interpret what laws mean; yet those are accepted as normal functions of any judicial branch of government. In any case, who is to decide that key question? Some kind of super-supreme court? Sorry, that’s not covered in the Constitution, not even in Article Eight. We have here reached the ultimate, fatal flaw in the pleasant fiction that governments are entities capable of being limited.

Ever since 1803, America’s government has pretended to operate a limited, democratic republic but has actually been an oligopoly of lawyers. And since Article Three was crafted (and left blank) with all deliberate intent, I suggest that’s the way the founders always planned it. The 1789 Judiciary Act was a kind of delayed-action poison pill, a really cunning plot, planned and executed by those honored even today as the founders of a free society. And this is perfectly logical; the notion that a government (something that governs) can ever be subject to limits (things that prevent governing) is nonsense on its face, an absolute contradiction.


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