Momentous Monday: Marbury vs. Madison

Two hundred and seventeen years ago today, the U.S. Supreme Court made a very important decision, one that has resonated on down through the years, and one that is more important now than ever.

Basically, a little incoming executive fuckery attempted to block an approved appointment by the outgoing administration… or did it? Because the outgoing administration wasn’t so innocent either, and to top it off, the Supreme Court Justice who ruled in the case, John Marshall, had been Secretary of State to the President who was trying to pack the courts with justices favorable to his side in the last days before he had to turn over the reins to Thomas Jefferson.

Side note: For all of you Founders fans, read up a bit, and you’ll realize that if you’re progressive, then you’re on the side of Adams, not Jefferson.

Anyway, beyond the politics of all of the above, two things are notable. One is that Marshall actually ignored the fact that he was voting against his guy (Adams) in this case and voted for what was right. Second is that this case forever enshrined the idea that the Supreme Court could absolutely decide whether a law passed by Congress was Constitutional.

Hello, checks and balances, everyone.

But it seems to have passed out of fashion to understand this simple fact. Our Constitution set up three branches of government for one simple purpose: So that no one of them would become too powerful. That’s what checks and balances means.

The three branches are as follows:

Legislative, meaning both houses of Congress, whose job is to make laws.

Executive, meaning the President and Cabinet, and their job is to figure out how to enact the laws passed by the Legislature, or to say “Nope. We’re not passing that law.” (To which the Legislature, with a two thirds majority, can say, “Nu-uh, it’s passed. Suck it!)

Judicial, meaning the Supreme Court, and they get to decide whether a law follows the Constitution or not.

Oh yeah. All three branches are constrained by the Constitution. At least in theory. And getting back to the Legislative, there are two houses of Congress, which makes it wonky: The Senate and the House or Representatives.

These came out of what you can basically call White Privilege, i.e., “We really can only trust rich, old, white, land-owning dudes over 21 to do what’s best (for rich, old, white, land-owning dudes over 21), so the system was stacked from the top. The Reps in the house are based on the population of states, meaning that in the modern day places like California, Texas, and New York have the most Reps. However, the Senate is based on state, as in every state gets the same two Senators, so that California, with nearly 40 million people, gets the same number of Senators as Wyoming, with just over half a million people, and that is utter bullshit. Of course, this is the same nonsense that gave us the Electoral College, which really needs to be banished as well.

To keep it fair, we really need to banish the Senate, reapportion Congress based on an honest 2020 Census, and pack the Supreme Court to at least 17 Justices. Maybe even consider the concept of having two or more of those positions elected by the people instead of appointed by the President, and with the power of recall endowed, again, with the people..

Oh yeah. Because that’s the really big part that the whole “Systems of Checks and Balances” things ignores. The fourth branch of government.

Who is it? You may ask. Simple. It’s us. We the people, and our power to vote. We can’t do shit about the Supreme Court (yet, but see above), otherwise, the President and Congress are in our hands.

The Supreme Court Justice you may or may not have heard of, and who was equal parts hero and dick. 

Friday Free-for-All #15

In which I answer a random question generated by a website. Here’s this week’s question Feel free to give your own answers in the comments.

What is the most important right our government allows for?

All right, random question site — normally, I don’t get political here, but you had to ask, so here we go, keeping in mind that this is the United States edition, but, really, the right I’m going to describe is one that all governments should allow. If they don’t, it’s time to topple them.

The right as I’m going to describe it is a little bit broad, because it’s going to comprise various Constitutional Amendments, laws, and court precedents, but the short version of it is this: Our most important right is the ability to freely and openly criticize our elected officials at any level, without fear of retribution no matter what we say about or to them, and our ability to get rid of them if they displease us, whether via voting them out, or recalling or impeaching them out.

So this covers the First Amendment’s right to free speech, press, and petitioning for redress of grievances for sure. It also scrapes in a few later Amendments, as well as includes the powers already enumerated in the Constitution for impeachment, trial, and removal of members of any and all of the three branches of the Federal government.

In this modern age, it means that any citizen can and should be able to tweet directly to any of their elective representatives and criticize them in the most colorful language possible (and believe me, I’ve seen plenty of that) and, whether they’re right or wrong, the one thing that should be true is that they cannot be arrested or punished for it.

Of course, the one big caveat is that those words don’t move on into threats. “Fuck you representative (name), you are a total asshole” is fine. “Somebody ought to shoot you in the face, and maybe it’ll be me” is not.

Subtle difference, but if we’re adults, I think that we can keep our guns and threats in our pants. Or not.

Now, around the world, several regimes have made it crimes to criticize their leaders — two countries whose English names start with T come to mind — and, in fact, they’ve even tried to punish citizens of other countries who’ve pissed two particular people off.

And that is just lame.

But… back to the U.S. Our most important right has always been the right to vote, but it kind of saddens me that thanks to political fuckery that’s been going on for the last thirty years, doubt has been cast upon two things: one, that voting matters, and two, that there’s any difference between the two major political parties.

Funny thing is that the people who buy into that crap are only politically involved once every four years, and only after their favorite non-starter pseudo third-party (but maybe fill in Republican or Democrat when it’s convenient) candidate doesn’t get enough votes to be nominated.

This is the major problem in the U.S. today: people who claim to be progressive, and yet will willingly toss away our single most important right and power just because their fandom didn’t make it to the finals.

So, ironically, they spend all of their First Amendment (though not really, because they do it on private platforms) rights screaming at people supposedly in the same party for being pragmatic instead of aiming their wrath at, well, you know…

Sadly, my country does not have the Right to be Protected from the Stupid, because that would require universal basic income, free education through grad school, and cheap health care for all.

This right has served us well in the past, though, and it’s been the avenue through which we have seen progressive goals achieved. Universal suffrage for women, unions and workers’ rights, civil rights, and LGBTQ protection and equal rights, among others, didn’t happen because people sat at home being polite.

They organized, they protested, and they let the government know that things had to change. In many cases, the protests and struggles took years, if not decades. And they weren’t bloodless battles. The labor movement, for example, saw many workers and organizers murdered, often at the hands of the private security forces of the companies they worked for. The civil rights movement has a long history of its organizers and supporters being lynched.

To quote Spider-Man, “…with great power there must also come — great responsibility!” No, that’s the actual quote as it first appeared in the comics. The real original comes from the   Public Safety Committee at the French National Convention in 1793: “Ils doivent envisager qu’une grande responsabilité est la suite inséparable d’un grand pouvoir.”

It means pretty much the same thing, as it did when, in 1817, British MP Willaim Lamb said, “…the possession of great power necessarily implies great responsibility.”

What I mean now is that this great power of ours to address and protest our government comes with an important responsibility: We must never use it in order to infringe the constitutional rights of others, or to endanger the health or well-being of others.

You probably see where this is going.

Protesting to ensure that unarmed, innocent black people are not gunned down by cops or over-zealous vigilantes is a proper use of the power. Protesting to make sure that legal protections are in place to keep transgender people from being fired or evicted is a proper use of the power. Protesting to make sure that corporations cannot underpay or exploit their employees is a proper use of the power.

Protesting because you can’t go out and get a haircut, or shop at Dillard’s, or sit down to eat at the Waffle House, or go to church in person when Zoom is available, or because you don’t want to wear a mask in public are not proper uses of the power.

Sorry, Karen.

When your breath can be as weaponized as you’ve made your white privilege and there are vulnerable people around, put a damn mask on and learn how far six feet is. Then deal with it.

If you want to complain and protest, then please address it to the federal government that whiffed the response in the first place and put us all into this situation, not to the state governments who have been trying to mitigate the damages ever since.

But FFS, stop harassing reporters, assaulting store clerks, or killing security guards. These are not legal acts of protest. They are domestic terrorism.

And that is one right that no American has.