First Circuit Court of Appeals Declines to
Prevent President from Taking the Country to War
9/4/2005 – Retrospective. Chief Justice William Rehnquist died today.
In the prelude to the invasion of
What is fascinating is the citizenry’s unwavering grasp to an illusion of federal judicial power. What was found in the seminal United States Supreme Court 1803 decision in Marbury v. Madison was that while a court of cognizable jurisdiction must say what the law is, the United States Supreme Court was not provided with the powers of mandamus or prohibition over federal officers to do anything about it.
Marbury, in this sense, may
prove to be the most valuable and enduring accomplishment by James Madison, the
father of the Constitution of the
The powers of mandamus and prohibition were the sovereign prerogative powers of royal authority over subordinate lords and corporations. These powers were well established in the law and understood by the founding fathers. If the prerogative powers of royal authority had been delegated to the federal judiciary it would have created a separate sovereignty over the states, something they were not attempting to create. No person would know this better than James Madison and he prevailed in court before Chief Justice John Marshall on this point. The general government of the United States is the creation of thirteen independent and sovereign states, and just as the king had prerogative powers over his subordinate lords, the states clearly retain prerogative powers over their federal government.
Clearly, the power to restrain unconstitutional actions by federal officers
lies in the state judiciary, especially those of the original thirteen
colonies. While the 1798
The future of our country remains in our system of English law and the Constitutions which came out of it. I pray that we grasp this understanding quickly and use it to bring peace with prosperity and a future for all life on this planet. We are all God’s children.