title: no. 3 of the trilogy -- trilogy on wilders’ “hate speech” trial -- it is time for a marbury vs. madison moment in euro union jurisprudence, else the whole enterprise devolves into chaos and violence in the contest over immigration.
marbury v. madison.
this case remains a head scratcher, frustrating law students (at least this one) and historians alike as to the precise nature of its holdings, and exciting exclamations over the deep ironies of its historical setting. the official citation to the case is as follows, william marbury v. james madison, secretary of state of the united states, 5 u.s. 137, 1 cranch 137, 2 l.ed. 60 (1803). the case was filed on an application for an order to show cause why writ of mandamus should not issue under the original jurisdiction of the supreme court of the united state, to have the parties appear and show cause why a commission directing the appointment of petitioner marbury not be delivered to him, so that he could take office.
i hope all that is clear to you.
the history of this is a delightful read, and i heartily recommend to you the wikipedia version, which is pretty complete and pretty accessible, at least in getting a fundamental sense of the factual background of why the case came about.
understanding the legal holding of the case is just a bit more difficult. you may get a chuckle out of that assertion if you have read the wikipedia article already, for a more complicated factual setting is difficult to imagine, including the fact that john marshall who wrote the supreme court opinion, part of which concerned whether the court had the authority to either direct or prohibit the delivery of the commission appointing magistrate to him, … , that same john marshall was the ministerial officer who was directed as john adams’s secretary of state to deliver the commission to marbury. see wiki.
understanding the legal holding is more difficult because the principle for which the case has come to be understood, that being the primacy of the supreme court as an institution to decide upon the constitutional legality of the actions or enactments of the other two branches of government, was never before the court.
john marshall was a federalist.
one may probably safely assume that he agreed with the following propositions as related in federalist 78, authored by alexander hamilton:
if it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the constitution. it is not otherwise to be supposed, that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. it is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. the interpretation of the laws is the proper and peculiar province of the courts. a constitution is, in fact, and must be regarded by the judges, as a fundamental law. it, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
there was more at work in the above paragraph than just the prejudice or animus hamilton’s logic toward one of the branches not being subject to the “checks and balances” of the other two when it came to this issue of supremacy on interpreting the law. hamilton also had history firmly in his vision, and he had before him the strengths and weaknesses of the parliamentary system, and he quite obviously did not want to see the supremacy of parliament in all things placed upon american government. for a full text of federalist no. 78, please see here.
and so, apparently, when john marshall got to a place in his analysis, and who knows whether he saw it coming or not, where he saw conflict in the statute before him recently passed by congress and in the organic text of the constitution, he asserted the right & authority of the supreme court to both declare the conflict and make an analysis of why it existed, and to declare the constitution supreme. again, keep in mind that this was not an open and shut proposition in all cases, given the descent from and the heritage of the supremacy of the british parliamentarian scheme, in which all these founding fathers had grown up. in the english system, the constitution is what parliament declares it to be, and if a parliamentary enactment is in conflict with established rules, the old gives way to the new enactment.
john marshall’s decision, whether founded in whole cloth, or whether founded in sweet reason and logical analysis, solved this issue.
and, in so doing, he established the primacy of the judiciary to say what the law is.
by so doing, john marshall interposed the court as an impediment upon legislative designs to usurp the protections afforded the people by their ancient liberties, and by the protections afforded them in the constitution and bill of rights.
just as john locke and sir william blackstone had advocated, john marshall assured that the courts would block the tyranny of a legislature without respect for constitutional limitations upon its power.
europe’s only hope for salvation from the tyranny of the euro union legislatures.
this is geert wilders’ only hope for salvation, as well. and, it is to be admitted, this hope hangs by a pretty slender reed.
in the end, geert wilders’ fate will be decided upon the interplay of these several provisions of the european union charter of fundamental rights, discussed at some length in previous posts, and found here. the provisions of the charter are at the bottom portion of the post.
the relevant provisions of the charter provide:
article 10
freedom of thought, conscience and religion
1. everyone has the right to freedom of thought, conscience and religion.
C 303/4 EN Official Journal of the European Union 14.12.2007
article 11
freedom of expression and information
1. everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
article 15
freedom to choose an occupation and right to engage in work
1. everyone has the right to engage in work and to pursue a freely chosen or accepted occupation.
2. every citizen of the Union has the freedom to seek employment, to work, to exercise the right of establishment and to provide services in any Member State.
3. nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.
article 19
protection in the event of removal, expulsion or extradition
1. collective expulsions are prohibited.
article 20
equality before the law
everyone is equal before the law.
C 303/6 EN Official Journal of the European Union 14.12.2007
article 21
non-discrimination
1. any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
article 22
cultural, religious and linguistic diversity
the union shall respect cultural, religious and linguistic diversity.
article 52
scope and interpretation of rights and principles
1. any limitationon the exercise of the rights and freedoms recognised by this charter must be provided for by law and respect the essence of those rights and freedoms. subject to the principle of proportionality, limitations may be made only [: a.]if they are necessary and genuinely meet objectives of general interest recognised by the Union or [:b.]the need to protect the rights and freedoms of others.
article 54
prohibition of abuse of rights
nothing in this charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this charter or at their limitation to a greater extent than is provided for herein. nothing in this charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this charter or at their limitation to a greater extent than is provided for herein.
it is absolutely astounding how a document which is entitled “a declaration of universal right” prohibits everyone from doing anything not allowed by governmental edict. it is george orwell’s vision made incarnate, and immortalized.
it would appear that the bureaucrats of the european union have been hatching their immigration schemes for years, and have been designing for some years to make it virtually impossible for members of european society, or any nascent political opposition to their scheme, to give voice to their opposition to muslim immigration.
the provision make mass expulsions illegal, article 19. no discrimination shall be allowed, article 21. no act will be allowed which is calculated to diminish freedoms belonging to others, article 54. everyone has the freedom to religion, article 10.
and, while everyone has the freedom of expression, article 11, such freedom of expression is not without limitation. that limitation is found in article 52, and this article provides freedom of expression may be limited if “… in the general interests recognized by the union.”
in short, the euro union has recognized that it is in its general interests to both promote and promulgate north african muslim immigration into europe on a massive scale. the euro union will also recognize that promoting civic accord amongst muslims immigrants and its citizens is in the general interests of the european union.
in short, the euro union decides what is in its best interests, and it decides as well, by that amorphous hopeless indefinable phrase, whether or not geert wilders speech has transgressed on those “general interests,” whatever they may be.
he has no defense.
there is no defense that can be made to charges which are indefinable, to the extent that he is accused of “un-dutchness.” it is nancy pelosi’s “un-american” observation, all over again: where do you think she gets this horsecrap?
as noted in previous essays, this is not the application of law in wilders’ prosecution, this is simply the application of brute force.
the only opposition is armed rebellion, and the killing of this bloated bureaucracy before it destroys europe entirely.
unless.
unless some european judges get some balls, some intellectual courage. not likely, is it?
european natural law.
there is a brief glimmer of hope that perhaps there is a hint of “natural law” coursing through the veins, … , well, that is silly, to suppose that anything “courses” through the veins of a european jurist, … , so, let us just make it, … , a hint of “natural law” wending its way through the veins of some european judges, somewhere.
pray to g_d that wilders sits before them tomorrow. which is basically right now in europe.
i came across these passages quite by accident at wiki, looking for something else. there may be a strain of independence running through european judges, who otherwise do their very best to imitate soulless lackeys.
i am going to set these passages out, and suggest that just perhaps, the judges in wilders’ case might recognize a component in european political right and liberty which does not depend upon the indulgence of government, and that there is an element of natural law sustaining the europeans’s right to say what they please, without having to tow the exact party light of the regime in place.
just who in the fuck can determine what is agreeable to everybody on every situation.
but, follows the little passage at wikipedia about the european union law’s flirtation with a natural law concept, e.g., rights belonging to europeans as a matter of fundamental principle independent of governmental grant:
soon after the entry into force of the eec treaty, the community established itself as a major political entity with policy ramifications beyond its economic aims. in 1964 the european court of justice handed down its decision in costa v. enel, in which the court decided that community law should take precedence over conflicting national law. this meant that national government could not escape what they had agreed to at a european level by enacting conflicting domestic measures, but it also potentially meant that the eec legislator could legislate unhindered by the restrictions imposed by fundamental rights provisions enshrined in the constitutions of member states. this issue came to a head in 1970 in the case of handelsgesellschaft case when a german court ruled that a piece of eec legislation infringed the german basic law. on a reference from the german court, the [european court of justice] ruled that whilst the application of community law could not depend on its consistency with national constitutions, fundamental rights did form part an "integral part of the general principles of [european community] law" and that inconsistency with fundamental right could form the basis of a successful challenge to a european law.
in ruling as it did in handelsgesellschaft the ecj had, in effect, created a doctrine of unwritten rights which bound the community institutions. while the court's fundamental rights jurisprudence was approved by the institutions in 1977 and a statement to that effect by inserted into the treaties by the maastricth treaty, it was only in 1999 that the european council formally went about the process of initiating the drafting a codified catalogue of fundamental rights for the e.u.
now, wikipedia text is hardly basis for legal analysis, not “binding,” as you might say, upon european jurists. neither in that regard is the opinion of an old country lawyer from n.e. oregon. laughing. but, the author of the paragraphs above is no dumb bunny. he is suggesting that there may be some small glimmer of a hope that european judges may yet recognize in their jurisprudence some limitation on legislative power, and some well spring of protection in individuals of a “natural law” origin of individual rights, which are immutable by politics or jurisprudence. yay!! john locke, sir thomas blackstone, as it were.
the language is in the case holdings to suggest that this may be so. there may be a glimmer of hope in all of this, if a dutch judge who has the balls to say this speech of wilders is recognized as valid in dutch law, and i am not going to put him in prison for it, and i don’t care what the euro union politicians want me to do.
just a glimmer of hope, in all this. but, not very damned much.
our own alexander hamilton and john marshall recognized over 200 years ago the danger of an unchecked sovereign whose very edicts & whim reigned supreme. their solution was to impose a judicial counterbalance to such power, with the authority to analyze the law, and to declare whether or not that law was counter to the supreme law of the land, and to declare what the supreme law of the land is.
european judges better figure a way out of the same institutional problems posed by and with the euro union, and the european “hate speech” statutes as interpreted against the government backdrop of the universal declaration of right. if they do not fashion some sort of institutional check on the euro union and its legislature, they follow the path straight to hell.
and, what problem is that you say? (i know you are not that dumb, but, i have to set up the next argument, and a rhetorical question works as well as anything.)
well, it is the problem posed by a governmental entity with the authority to say what “the general interest of the euro union” is on an ad hoc basis, without definition or notice of what that may be, and, really, without defining in the slightest from where, from whom, and whence that declaration may issue. it is a most curious dictatorial power. with the soviets, it was lenin, and stalin, and even the latter day dictators from who the power flowed. with the genial inoffensive mollusks of the european union, the amorphous absolute power to say any damned thing you please, and make it law, flows from nowhere and from anywhere, without accountability or source.
it will end up imprisoning and killing just the same, however, and you can mark my words on it. we see already the “un-dutchness” in the wilders prosecution. we saw the authority for leftist hooligans to attack nationalistic protestors peaceably assembling, without provocation, and as police stood by, doing nothing, … , obviously on the directive from someone somewhere not to interfere or enforce the law. and, you will notice, that no muslim cleric in europe has ever been prosecuted under “hate speech” law, even those advocating the beheading of tony blair and queen elizabeth, although in her case no one probably would have noticed anyway.
there is no law in europe. only leftist orthodoxy.
in short, unless the european judges figure a way to place some limitation of some kind upon the ability to issue such pronouncements, the euro union is going to make a very swift transition from “soft” totalitarianism, to very “hard core” totalitarianism.
i cannot define “hard core” totalitarianism very well, but, i recognize it when i see it, and it is writ large all over this political show trial of geert wilders. it is enough to make chris matthews’s leg tingle, and to give b. insane obama a very large stiffy of envy.
this degenerates into civil war, if the euro’s are to retain any freedom.
or, it doesn’t.
i can only say to the euros what samuel adams said to us, so many years ago, and even unto now.
"if ye love wealth better than liberty, the tranquility of servitude than the animating contest of freedom, go from us in peace. may your chains sit lightly upon you, and may posterity forget that ye were our countrymen!" —samuel adams
the euros are about 2 seconds away from being soviet citizens, and about 3 seconds away from the gulags.
if geert wilders is imprisoned, they are in the gulags, only they just haven’t made them very big just yet. those european bastards can gussy it up all they want, but if wilders is found guilty of this, he is as much a political prisoner as alexander solzhenitsyn and he will sup at his fish eyed soup, either from his breakfast nook or from a prison cell, watching his political party go up in smoke as it is disbanded.
the euro union uses “hate speech” to crush all opposition to its immigration schemes, and that is the long and the short of it.
and, if euro judge’s don’t figure away to put the check on the excess of the euro union, they reduce the choices facing the europeans to insurrection to preserve liberty, or the comfort of the light chains of the euro soviet union, and the european gulag.
i say we run the european people guns, suitable for fighting an army of occupation. i say we help them blow the fuck out of those euro union politicians, bureaucrats and intellectuals who impose tyranny upon them and destroy nations and european national heritage. i say we blow those bastard mollusks straight to the hell they deserve.
john jay @ 01.19.2010
p.s. well, i am finished, except to run the spellchecker through all this. i am going to see if i can find the election returns on coakley vs. brown, and see how much ammunition i have to load up the rest of the winter. to assay how close we move to this legal chaos in europe.
John, well written sir. You need to write the "New Federalist Papers," and are one of the very few that possibly could.
Posted by: GM Roper | January 20, 2010 at 04:42 AM
I'm learning Twitter...sloowly. I did this one:
Summr Patriot: wilders found guilty? Then euros r 2 seconds from being soviet citizens & 3 seconds from the gulag
(Then a tiny url, but your comment window won't permit the display).
I took editorial liberties to attract readers. Hope someone(s) will re-tweet.
Don't have room for your full name & there is already a blog "Winter Soldier".
Posted by: dymphna | January 20, 2010 at 11:02 PM