Wednesday, February 26, 2014

Where You Stand Depends Upon Where You Sit

I have reached the age of 23,
Life has finally made me see:
That Politics begins with 
a set of assumptions (kinda like bandwidth)
that Mathematicians would call Axioms.

 Axioms are considered self-evident,
 They may or may not be decadent.
 But simply put, there is no proof behind them.
 Politicians would not exist but for the axioms that define them.

 The game of politics is a game of Faith,
 Wherein the first Axiom of Politics will keep you safe.
  Bearing in mind this Iron Law will tend to result in a base hit:

       In this era of globalization and the Touch Screen,
       People on the internet tend to be a lot more mean.
       But to me, I think dialogue on the web is more rational than what may seem.
       Perhaps dialogue on the Web is an aspect of our grand democratic scheme.

In any case, I would like to take you on a historical journey 
To a time in America where liberty itself was strapped to a gurney.
(Please excuse the repetition if you are already an American attorney.)
This is the time to establish, instill, and renew
Our national understanding of Judicial Review.

(Feel free to skip to the next Meme for a 1 sentence summary followed by a relevant connection to modern day issues like marriage rights and gun control.)

Many today see the Supreme Court as a branch of the federal government
That is equal to, if not more powerful than, the Executive and Legislative Branch.
At the Founding, the Supreme Court had no effective power for the citizenry to see,
Until the case of MARBURY v. MADISON in 1803.

The question at hand for Chief Justice John Marshall and the fledging Supreme Court,
(This, the same group viewed by other Government officials as if they played a Junior Varsity Sport) 
Was monumental, gargantuan, and indeed larger than the Court's then political life.
I shall try to lay out as much as the web can about the Court's existential strife:

"The Constitution says very little about the American court system. It essentially left all of the decisions about how it should be run up to those who came after. The entire U.S. judicial system prior to 1800 had been based on the Judiciary Act of 1789, from which A clause granting the Supreme Court the power to issue "writs of mandamus outside its original jurisdiction was declared unconstitutional by Marbury v. Madison (1803) (5 U.S. 137). The Supreme Court held that Section 13 of the Judiciary Act was unconstitutional because it purported to enlarge the original jurisdiction of the Supreme Court beyond that permitted by the Constitution. In Marbury, the Supreme Court ruled that Congress cannot pass laws that are contrary to the Constitution, and that it is the role of the judicial system to interpret what the Constitution permits. Thus, the Judiciary Act of 1789 was the first act of Congress to be invalidated by the Supreme Court.
In the election of 1800. When all of the votes were tallied in February 1801, Thomas Jefferson won in a landslide. But Adams' people (the Federalists) were still in control of congress, and had his back until Jefferson's inauguration. This is called a lame-duck session. During this session, Adams and his people passed a judicial act (The Judiciary Act of 1800) creating more courts, allowing the President to appoint a number of new judges.
On March 3, literally the day before Jefferson's inauguration , Adams appointed a number of judges, in what amounts to an attempt to block Jefferson's people from getting anything done. On of these judges was a man named William Marbury, a passionate and loyal defender of Adams. The senate approved these appointments, and that should've been that. Everything till now was totally kosher.
These appointments had to be delivered, and that job fell to the Secretary of State, John Marshall, who also happened to be Chief Justice of the supreme court. He figured that Jefferson's Secretary of State, James Madison, would do it, since they were perfectly, as I said, kosher.
The second Jefferson was sworn in he ordered his interim Secretary of State to not deliver them. Jefferson claimed that since those papers hadn't been signed in time, they were null and void. Marbury then went to the supreme court asking for what's called a "writ of mandamus," essentially an order, by a court, to do something (in this case, give the papers over to Marbury and the other judges).
The Case
At issue were a few things.
One, did Marbury have a right to the papers.
Two, was there a legal way to do this?
And finally, the big one,
Three, can you ask the Supreme Court to intervene.
The first two were answered with a quick and emphatic yes, and are really not necessary to the important part of Marbury v. Madison.
The third, however, was trickier. The Judiciary Act of 1789 had given the Supreme Court the power to issues writs from the beginning.
This, Marshall concluded, was in direct contradiction to the Constitution, which said "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."
This meant that while Marbury could go to a court and get the writ, and thus the papers, he could not ask the Supreme Court to do it, at least at first.
To remedy this, Marshall declared The Judicial Act of 1789 to be invalid, as it gave too much power (or responsibility, depending on how one looks at it) to the court.
What Marshall essentially said was "this law is unconstitutional." We hear that phrase today and it's commonplace, but it was such a huge shift in how we thought about the Court. By saying that the court had the authority to do that, it put more power into the hands of the court than had ever been seen before.
This is the crux of Marshall's defense of judicial review:
"It is emphatically the province and duty of the Judicial Department to say what the law is."
That's why that is engraved on the Supreme Court building in Washington. As a result of this, the Supreme Court had to recognize that the Constitution is the "supreme law of the land" and make all other laws fold to it, or the Constitution loses its point.
Guy named Marbury sues a guy named Madison for a job, using an old law to do so. The Supreme Court says that old law is invalid, and that the Supreme Court can't have that much power, striking it down. The country's most ironic power grab."

In Other Words:

Now, Thomas Jefferson was an anti-Federalist--he was more concerned with starting a revolution in France than he was with the ratification of the Constitution. 
He and his ideological allies believed that the United States of America's Founding document already in existence was the Declaration of Independence.
Gay marriage presents a problem for society that I think can be answered by the anti-federalist stance towards the Bill of Rights. Antifederalists largely opposed the very existence of the Bill of Rights because they believed that when (we) the People start 'listing rights' is also when Negative Nancy starts saying: "O.K. Well, it's not listed so like....oh my gahh it's not a right!"
(Sound like Scalia?)
When we start claiming that something is a "fundamental right" as liberals liberals do gay marriage and conservatives do gun control, then we elevate it to the status of "natural right." 

As in: No matter what the government says, this is my right. 
Which, in essence, means that no jury should ever convict me for having a firearm. 
See what I'm saying? 

People who use the 2nd Amendment as justification for their 'natural right' to have a gun are, in effect, making  
Arguments against gun control that are more like closing arguments than public debate.
 Because if we do accept the argument that the people have a natural right to a gun...
then if the state says you can't have a gun and you choose to exercise you God-given 2nd amendment (holier-than-thou) right to a gun, then just maintain that throughout your trial and the jury will come back not guilty if they share your views.
To loosely paraphrase JFK: these natural rights come not from the generosity of the state but from the hand of (insert term for supreme ruler of the universe aka god here.)

No jury will vote guilty for exercisinging your rights....

Discrimination against gays in shops is morally suspect and economically inept. Many even say that this is just like racially segregated shops and public spaces.

But let's get real, the new Conservative mantra of protecting God and Guns against gays is nothing like racial oppression. 
In other words, defense for society in the name of the aforementioned topics DOES NOT EQUAL RACISM, so let's not philosophize about how this is just like segregation aka radicalized terror.
Racial oppression tends to be seen as equal to or worse than opposition to non-heterosexuality in the name of the Lord, But to be honest...racial oppression in many ways and at many times was justified as being part of the Lord's larger plans...which means that at the very least, segregationist thought that they were performing the will of the Lord.

But non-heterosexuals are seen by many as being in direct opposition to the glory of the Lord in and of being different in this way is fundamentally evil and in the eyes of some will send you straight to hell....So in some ways, the oppression is worse than segregation.

Whereas blacks had a place at the back of the bus, non-heterosexuals have no place on any bus, so to speak.

In many ways, comparing the two is like comparing sexual assault to girls gone wild, one is evil and is just illogical.
Moving on...during the Super Bowl, after I spoke with 2 women for about 30 mins over food about democracy in America, I met a boy.

22 just like me!

Traumatic brain injury just like me!

Forced to take time off from school...just like me!

But he was a victim of the Boston Bombing.

He told me that people told him to get over the trauma he had been thru, because people all over the world happened to suffer a brain injury, like people in the military and athletes.
He was angered that people compared what happened to him to others who suffered brain injuries in combat.

He icily responded that those people were trained for combat and literally signed up to take a risk like that. 

I won't summarize the rest of the convo but my takeaway is that I have been a miracle my entire life, not just since my recovery.

Indeed: I was the only sperm to make it to the egg for conception.

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