JDJEDTJR's respect for Marshall in Marbury v Madison, to this day a source of error

JDJEDTSR is the incarnation of alleged-quality and quantity in law schools. JEDJEDTSR places the most emphasis on six areas of law, in order of their importance to JDJEDTSR: civil procedure, contracts, torts, property, criminal law, and then constitutional law. JEJEDTJR is the incarnation of law schools regardless of alleged quality. JDJEDTJR's favorite constitutional law textbook, is, Constitutional Law, by Kathleen M Sullivan and Gerald Gunther ( http://www.amazon.com/exec/obidos/tg/detail/-/1566629071/102-13741664870552?v=glance&s=books#product-details).

In Marbury v Madison, Marbury sued Democrat-republican President Jefferson's secretary of state, George Madison, in the Supreme Court, because Madison, had refused to deliver the certificates appointing Marbury a justice of the peace, that Jefferson's enemy and predecessor, Federalist President Adams, had delivered to his secretary of state, who did not have time to deliver the certificates before the term of Adams ended.

Marbury sought a writ of mandamus from the supreme court, forcing Madison to deliver the certificates of appointment to Marbury. The court ruled 4-0, that it lacked the ability to act in the case, because Marbury's case was an original not an appellate jurisdiction case, and the constitution in such cases gave the court appellate, not original jurisdiction.

Furthermore, the court ruled that an earlier act of congress, that had granted the court original jurisdiction in cases such as Marbury's, was unconstitutional and therefore null and void, because it, this act of Congress, in effect changed the law of the constitution; and in so doing the court established the principle of judicial review.

Contradicting Marshall who wrote the opinion for the court in the Marbury case, I find that the words of the constitution, actually did provide for supreme court original jurisdiction in cases such as Marbury's. I arrived at this conclusion before reading anything that came to this conclusion, but after I arrived at this conclusion, I found a couple of academics whose conclusions regarding this case were similar to mine:

We must recall that article three states unequivocally that this court's original jurisdiction shall in part pertain to "other public ministers." Under our definition of a "public minister," the secretary of state fits precisely into this category. Therefore, Mr. Madison is a public minister, and Mr. Marbury has the right to petition this court to require him, under our original jurisdiction, to deliver the commission to him, and he has done so.
-- http://www.towson.edu/~fruchtma/conlaw/marbury.html
also, similarly,
-- http://www.brescia.edu/academics/syllabus/spring05/pls411/marbury.ppt

However, others have stated, that Madison was not an ambassador, or other public minister, or consul, and therefore the court did not have original jurisdiction in his case, because the constitution restricted original jurisdiction for the supreme court to cases involving ambassadors, other public ministers and consuls:

Since Madison was not an "ambassador, public minister or consul" under Article III, a suit against him did not meet the requirements for the exercise of original jurisdiction.
-- http://jhcourse.jhu.edu/~as190333/marshall.htm

Unless noted, the statements made in the following arguments are statements that are not so to speak copies of statements made by others, and I am unaware of any other similar statements that have been made in the legal world previously.

Marshall erred in that he simply blythely assumed, that when the constitution gave original jurisdiction to the supreme court in cases involving ambassadors, public ministers, and consul, it gave this in cases involving only FOREIGN ambassadors, public ministers, and consuls. There is nothing in the constitution to support Marshall's egregiously erroneous interpretation.

Which leads to the next question, was Madison a "public minister"? The statements I found in academia that touch on this subject, simply assert this or that opinion; they provide no evidence or argument.

My argument is that Madison was a "public minister", because, although the United States to distinguish itself from foreign nations operating under political philosophies different from the revolutionary US philosophy, referred to officials such as the secretary of state using terminology different from that used by foreign nations for such officials; the foreign counterparts of the US secretary of state were and are to this day, due to the precedent set by English governments, referred to as "ministers", working in ministries. See:

Senator Horsey (a Federalist, and so not of Madison's party), also defended the President's recess appointments, arguing that [t]he office then of a public Minister is the medium through which the Executive is enabled to manage our foreign relations, and particularly to conduct negotiations
-- http://biotech.law.lsu.edu/blaw/olc/peterfinal.htm

On the afternoon of September 21, 2001, US President Bush met with visiting Foreign Minister Tang Jiaxuan in the Oval Office of the White House.
-- http://www.chinaembassy.org.zw/eng/xwdt/t148643.htm

australian minister foreign affairs
http://www.foreignminister.gov.au/

UK foreign minister welcomes Iraq election
http://www.britainusa.com/sections/articles_show.asp?SarticleType=1&Article_ID=6340&i=121

UK Foreign Ministry: We will continue to take a close interest in the protection of all the rights and freedoms of the Hong Kong people.
-- http://www.clearharmony.net/articles/200112/2097.html

New Zealand Ministry of Foreign Affairs and Trade
-- http://www.mfat.govt.nz/

4272. KINGS, Ministers of. -- No race of kings has ever presented above one man of [Col 2] common sense in twenty generations. The best they can do is to leave things to their ministers; and what are their ministers but a committee badly chosen? If the king ever meddles it is to do harm. -- TITLE: To Benjamin Hawkins. EDITION: Washington ed. ii, 221. EDITION: Ford ed., iv, 426. PLACE: Paris DATE: 1787
-- http://etext.lib.virginia.edu/etcbin/foleyx-browse?id=Ministers

Ambassadors and Other Public Ministers .--The term ''ambassadors and other public ministers,'' comprehends ''all officers having diplomatic functions, whatever their title or designa tion.''
-- http://caselaw.lp.findlaw.com/data/constitution/article02/13.html#t451

A public minister is he that by the sovereign, whether a monarch or an assembly, is employed in any affairs, with authority to represent in that employment the person of the Commonwealth
-- http://etext.library.adelaide.edu.au/h/hobbes/thomas/h68l/chapter23.html

Whoever is intrusted by his sovereign with the interests of the nation should be considered a public minister.
-- http://www.econlib.org/library/YPDBooks/Lalor/llCy289.html

Recently, the United Kingdom, the motherland of those who wrote the constitution and participated in the early legal system of the US, began to leave words such as minister and ministry out of its titles for offices and officers, yet the historical influence of the UK's use of words such as minister and ministry can be seen even today in the "state departments" of many foreign nations, which are known in these foreign nations, as "foreign ministries".

In the US government, the secretary of state, in the department of state, supervises appointment and management of US diplomatic personnel and US dealings with foreign diplomatic personnel:

5. The act of digress of April 30th, 1790, s. 25,...The act provides that citizens or inhabitants of the United States who were indebted when they went into the service of an ambassador, shall not be protected as to such debt; and it requires also that the names of such servants shall be registered in the office of the secretary of state.
-- http://www.jusbelli.com/Bouvier/bouvier1856_almanac.html

15) The term "immigrant" means every alien except an alien who is within one of the following classes of non immigrant aliens- (A)(i) an ambassador, public minister, or career diplomatic or consular officer who has been accredited by a foreign government, and who is accepted by the President or by the Secretary of State, and the members of the alien’s immediate family
-- http://www.otan.us/webfarm/laes/modules/mod8/m08hand2.html

Naturally, with a two and a quarter century history of sending diplomats abroad, there have been many folks who have been Consuls, Ministers, or Ambassadors. Those interested in researching this should start at the State Department's website: www.state.gov. The State department has an awesome library with an unbelievable history
-- http://wais.stanford.edu/USA/us_deptofstate62402.html

(The secretary of state) Grants and issues passports to American citizens and exequaturs to foreign consuls in the United States; Advises the President on the appointment of U.S. ambassadors, ministers, consuls, and other diplomatic representatives;
-- http://www.dkosopedia.com/index.php/United_States_Secretary_of_State

On Monday December 13, 2004 former Secretary of State Colin Powell honored the first group of CultureConnect Ambassadors and sports envoys in a special ceremony at the Department of State. Click here to learn
-- http://64.233.187.104/search?q=cache:vBxf66RZRowJ:cultureconnect.state.gov/+%22department+of+state%22+ambassadors&hl=en

The first job of the Visa Office (in the department of state) is to issue diplomatic visas to members of foreign missions. There are three categories of diplomatic visas: A-1 visas are issued to Foreign Service officers, career diplomats, and to ambassadors and other high-ranking diplomats, such as consuls and vice consuls.
-- http://www.washdiplomat.com/03-03/a8_03_03.html

The United States Department of State, often referred to as the State Department, is the Cabinet-level foreign affairs agency of the United States government, equivalent to foreign ministries in other countries. It is administered by the United States Secretary of State.
-- http://www.en.wikipedia.org/wiki/Department_of_State

the federal department in the UnitedStates that sets and maintains foreign policies; "the Department of State was created in 1789"
-- www.cogsci.princeton.edu/cgi-bin/webwn

(the secretary of state) Grants and issues passports to American citizens and letters of recognition to foreign consuls in the United States; Advises the President on the appointment of U.S. ambassadors, ministers, consuls, and other diplomatic representatives;
-- http://future.state.gov/who/secretary/duties.html


The language of the constitution is such, that one can see that although not all persons referred to as "officers" by the constitution are "public ministers", "public ministers" are, nevertheless, a type of officer. True, when the constitution comes the closest that it does come to discussing officials such as the Secretary of State, it refers to them as "officers". However this does not mean that the Secretary of State cannot be an "officer", as well as a "public minister", just as a center forward on a soccer or football team is a forward, and at the same time a player.

Marshall has been widely praised and glorified, for having established by clever arguments in the Marbury case, that the Supreme Court, has the right to "Judicial Review", meaning the right to veto acts of congress it finds to be unconstitutional. Yet Marshall did not base his reasoning on the most obvious and logical basis, which is that the constitution provides that alterations to it be processed through constitutional conventions:

Article V. - Amendment
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
-- http://www.usconstitution.net/const.html#Article5

Instead, Marshall declared that the obvious original intent of the framers of the constitution was that the constitution should have veto power over unconstitutional acts of congress. In so doing, Marshall established a precedent in the US, that documents such as constitutions, which in reality may be intended to eliminate anarchy and confusion until one by one matters are settled by votes, are documents regarding which one can assume that the writers intended that the documents have veto power over subsequent voting.

Marshall's opinion in Marbury has been deified and glorified; observers tend to think of it as a brilliant or important or ethical opinion. Yet after mis-reading that the constitution was referring only to foreign diplomatic personnel in granting the court original jurisdiction with regards to such, Marshall, like the constitution before him, failed to pay sufficient attention to the meaning of the term "public minister". The worship of Marshall by devotees such as JDJEDTJR has led to assumptions that a law refers to a subset of a set when it plainly and obviously refers to the set not the subset, and to a failure to adequately define terms. To this day one can see how the economic productivity of the US is impaired due to inadequate definition of terms in contracts and property law.

What do you get when rulings that are considered brilliant or important or good are based on faulty reasoning, as Marshall delivering the opinion of the court in Marbury v Madison is? What you get, is that faulty reasoning becomes fashionable. To this day, we see how in the US, faulty reasoning is winked at because it can lead to good or important or brilliant results; yet they ignore, that the society characterized by faulty reasoning, will of course be less prosperous than the society characterized by correct reasoning, and, that, more often than not, faulty reasoning leads to more misfortune than correct reasoning does.

When an admired court decision is based on the court, in error, plunging into secondary and unnecessary arguments, the end result is that the society that admires the decisions, and individuals in that society such as JDJEDTJR, acquire an unfortunate predilection for secondary and unnecessary argument.

The way to resolve issue A, is to bring it before the court so that it may be considered. The way to resolve issue A, is not, to bring it before the court through the application of erroneous reasoning to issue B. Yet due to the infatuation with rulings such as Marbury v Madison, we have today in fashion the bring A into focus by screwing up on B approach.





@2005 David Virgil Hobbs
These are my opinions at the present time which may not exactly or even remotely correspond with fact.