Wednesday, November 11, 2009


Cara A. Valente-Compton

Question 1:

              In the Supreme Court Case of Marbury v. Madison, in which William Marbury sued Secretary of State James Madison for the commission to his “midnight appointment” as a justice of the peace, the issues central to the case were fairly concise: First, was Marbury rightly appointed and entitled to that appointment?   Second, if it be the case that he was entitled to the appointment, is he due a remedy? And third, if he is due a remedy is that remedy a writ of mandamus from the Supreme Court to compel the delivery of his appointment?  However obvious the facts of this case may be, Marbury v. Madison became a tool with which to examine the nature of the Constitution, the nature of the judiciary, and the powers and constraints of statutory law.  Chief Justice John Marshall authored the opinion of the court, which was unanimous. Marshall’s assertions remain the fundamental assumptions of the nature of jurisprudence in America, the power of judicial review of law.

              First, Marshall’s opinion of the nature of the Constitution is bedrock.  “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected.  The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated.  The principles, therefore, so established, are deemed fundamental.  And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.” (Marbury, p. 75, col. 1, pp. 2)  The people, according to Marshall, have drafted and ordained this Constitution as the oracular guide to American law, establishing specific and binding grants of authority to the three branches of government.  The nature of this constitution is then specifically designed to be limiting, restrictive and permanent.  “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” (Marbury, p. 75, col. 1, pp. 4)  Indeed, what is the point of crafting limitations to power if those limited by the rules can simply change them through statutory law?  Why would the framers give a general grant of authority to one body of government if that grant can be manipulated by another, equal, branch of government?  This also cannot be the case, as it casts off the will of the people

              As to statutory law, Marshall’s opinion is also clear, “The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.”  The latter could not possibly be what the framers of the constitution intended, as evidenced by Article V, which establishes that 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 Congress.” (Epstein and Walker, Appendix 1, p. 691) Therefore, if the constitution is the supreme law, and the legislature enacts contradictory statute, Marshall sums “…an act of the legislature, repugnant to the constitution, is void.”(Marbury, p. 75, col. 2, pp 1).  Ultimately, the Constitution, as the word of the people, must be supreme to the statutory laws of our government, lest the servant be greater than the master.  The supreme law of the land, the constitution, can only be changed through amendment to that document, which requires the express consent of the people.

              This brings us to Marshall’s view of the nature of the judiciary.  Justice Marshall could not be clearer when he contends, “It is emphatically the province and duty of the judicial department to say what the law is.”(Marbury, p. 75, col. 2, pp. 4).  In cases where there is a conflict between laws and rules it is up to the court to “expound and interpret that rule…the courts must decide on the operation of each.” (ibid)  Marshall goes further to say, “This is the very essence of judicial duty.”(Marbury, p. 75, col. 2, pp. 5).  This is the most elemental and powerful tool of the courts, judicial review in a nutshell.

              It is imperative at this point to discuss judicial reach, and the concepts of original and appellate jurisdiction.  “The judicial power of the United States is extended to all cases arising under the constitution.”(Marbury p. 76, col. 1, pp. 2).  Here Marshall quotes nearly directly from the Constitution, Article III section 2, which goes on to enumerate those domains where the Supreme Court is given the grant of authority by the people of the United States.  The Constitution is very clear in specifying the boundaries between original jurisdiction; and includes cases dealing with Ambassadorships, other governments, and conflicts between states, among others.  The Constitution provides that in all other cases the Supreme Court shall have appellate jurisdiction, in other words that they need to originate in a lower court first before being taken to the Supreme Court for appeal.

              Marshall turns to the Constitution to show us how the people explicitly granted powers to the various branches of government, then says “from these and many other selections which might be made, it is apparent, that the Framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.” (Marbury, p. 76, col. 2. pp. 1). He uses, as example, the oath of office to which justices are compelled to swear, “How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!”(Marbury, p. 76, col. 2, pp. 2) and further, “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed to him, and cannot be inspected by him?”(Marbury, p. 76, col. 2, pp. 4).  This simply cannot be the case.

              Resuming the examination of the issues of the case, it was ruled:  First, yes William Marbury had been duly nominated and appointed and was therefore (secondly) entitled to the commission of his duties; Third, yes, Marbury is entitled to remedy, after all there can be no right without remedy.  However, whether it was the role of the Supreme Court to confer that remedy is the crux of this case.  By applying Marshall’s view that the Constitution trumps statutory law and that it is the role of the Supreme Court to decide the law, the obvious conclusion is that the Judiciary Act, by amending the role of the Supreme Court without a grant of authority from the people to do so by means of a Constitutional amendment, was unconstitutional. Further, it is the role of the Supreme Court to say what the law is, and in this case it is the opinion of the court that the provisions made by the Judiciary Act of 1789 were unconstitutional, and subsequently void. Thus these provisions cannot be applied, the Supreme Court is not in authority to issue writs of mandamus, and the case is dismissed.

Question 4:

              Four cases that we have studied thus far illustrate the power of checks and balances, specific to the judiciary’s ability to examine the actions of another body, in these cases the Congress, to determine whether these actions are constitutional.  This is the power of judicial review.  Though the issues in these cases vary enormously, the common thread that unites them is the power of the courts to examine the actions of Congress and make determinations about the validity of their actions.

              In the first case, McCullough v. Maryland, one of the two central arguments facing the court was whether the Congress had the power to establish a federal bank. In authoring the opinion of the court, Chief Justice Marshall explains for us the issue:  “the conflicting powers of the government of the Union and of its members, as marked in that constitution…” (McCullough, p. 159, col. 2, pp. 1 of the case).  Marshall goes further to illustrate the importance of the issue, the delicacy of it, and the reverence with which the court intended to treat the case.  “On the Supreme Court of the United States has the constitution of our country devolved this important duty.” (ibid).  It is clear that Marshall understood that the issue of the court speaking to the constitutionality of congressional action was potentially explosive. 

              Marshall speaks to the text of the Constitution on the question of whether Congress had the right to establish a bank.  “Among the enumerated powers we do not find that of establishing a bank or creating a corporation.  But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described.”(McCullough, p. 160, col. 1, pp. 1)  In short, there is no language in the document preventing the establishment of a bank, or language excluding implied powers.  In fact, should the Constitution enumerate every single power it confers “would partake of a prolixity of a legal code, and could scarcely be embraced by the human mind.”(ibid)  According to Marshall, the nature of the Constitution speaks to the grander scope of powers and constraints, leaving the minutiae to be “deduced from the nature of the objects themselves.”(ibid).  Further, Marshall discusses the expressed powers of the government, specifically obligations related to the power of “the sword and the purse,”(McCullough, p. 160, col. 1, pp. 2) and the logical assumption that should a government be entrusted with such enormous powers, it “must also be entrusted with ample means for their execution.”(McCullough, p. 160, col. 2, p. 1)  The opinion then turns to the “necessary and proper” clause, “To its enumeration of powers is added that of making ‘all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States, or in any department thereof.”(McCullough, p. 160, col. 2, pp. 3)  Marshall sums, admitting that the powers of the government are limited; the obligations of the government to perform its enumerated duties necessitate it to have implied powers to execute its duties in a “manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution,  and all means which are appropriate, which are plainly adapted to the letter and spirit of the constitution, are constitutional.” (McCullough, p. 161, col. 2, pp. 4) Thus Chief Justice Marshall, in delivering the opinion of the Supreme Court, acknowledges Congress’s right to establish a bank.

              In the second case, Powell v. McCormack, Representative Adam Clayton Powell, Jr., in the wake of an investigation of ethics violations, was excluded from the US House of Representatives.  Powell filed suit and Speaker of the House of Representatives John McCormack argued that, first, it is the right of the House to determine who is qualified to be a member, and to exclude those who failed to meet the standards, and second, that under the political questions argument this case was not appropriate for consideration by the court. Article 1, Section 2 of the Constitution provides that qualified members of the House of Representatives shall be at least 25 years of age, live in the United States for a period of at least 7 years, and reside in the state they are elected to represent. Chief Justice Earl Warren spoke to the political question issue first, concluding that “Art. I sec. 5, is at most “’a textually demonstrable commitment’ to Congress to judge only the qualifications expressly set forth in the Constitution.  Therefore, the “textual commitment” formulation of the political question doctrine does not bar federal courts from adjudicating petitioner’s claims.”(Powell, p. 138, col. 2, pp. 2)  In short, the court was the proper venue for this case.  As to the principal claim, that Congress, and Congress alone, should have the right to determine the eligibility of its members, it was ruled that, “since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership.”(Powell, p. 138, col. 2, pp. 3)  Here the Supreme Court has once again determined whether the actions of Congress are constitutional or not.

              In the third case, South Carolina v. Katzenbach, South Carolina challenged the constitutionality of the Voting Rights Act of 1965, which sought to penalize states for failing to conform to the act; alleging that “the legislation was not appropriate to enforce the Fifteenth Amendment, that it infringed on states’ rights, and that it had the effect of treating states in an unequal manner.”(Epstein and Walker, p. 185, col. 2, pp. 2)   Chief Justice Earl Warren issued the opinion of the court, referring to the “insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”(Katzenbach, p. 186, col. 1 pp. 2)  The opinion of the court was that “Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting…”(Katzenbach, p. 186., col 1 pp. 5)  Warren invokes the wisdom of Justice Marshall, who in McCullough v. Maryland, who in sum said that as long as the goal is legitimate, and the means just, and carried out in accordance with the constitution, the actions are constitutional.  Logically it follows, if the provisions of the Voting Rights Act of 1965 support and uphold the constitution, if it is thus constitutional, it cannot be unconstitutional. 

              In the fourth case, Mistretta v. United States, the courts were faced with the issue of whether the Congress could delegate their legislative authority.  In an attempt to make more uniform the code for sentencing criminals for federal crimes Congress established the United States Sentencing Commission.  This body, made up of seven members, nominated by the president, approved by the senate, including at least three federal judges and with a balance of political representation, would review criminal sentences according to strict guidelines established by the Congress.  John Mistretta, convicted of three counts of cocaine trafficking, challenged the constitutionality of this commission, charging that the establishment of the commission violated the delegation of powers principle.  The opinion of the court, however, as delivered by Chief Justice Harry A. Blackmun, does not agree with Mistretta.  While the court acknowledges that the principle of nondelegation mandates that in accordance with our separation of power principle Congress cannot give away its grant of authority by the people of the United States to another branch of government, it does not prohibit Congress from seeking “the assistance of its coordinate Branches”(Mistretta, p. 273, col. 2, pp. 2)   Blackmun continues, “…we harbor no doubt that Congress’ delegation of authority to the sentencing commission is specifically specific and detailed to meet constitutional requirements.” (Mistretta, p. 274, col. 1, pp. 1)  In his closing, Blackmun describes the complexity of criminal sentencing as “precisely the sort of intricate, labor-intensive task for which delegation to an expert body is especially appropriate.” 

Here, again, the Supreme Court has evaluated an action taken by Congress by the standards set forth in the Constitution of the United StatesThese four cases examined above are wildly divergent in their merits, however, a common thread runs through them.  In each case, the court was asked to evaluate the constitutionality of actions taken by the legislative branch, using the power of judicial review as a check on the power of Congress.





Thursday, July 02, 2009

Woman Gives Birth, Leaves Baby, in Port-A-Potty

I hate to even go into one of these nightmarish, reeking, hellishly blue, upright coffins of doom. I remember twenty years ago at the UNM Fiestas out on Johnson Field, while dancing to this kick ass reggae band a crash and a roar of laughter as some one tipped a port-a-potty, and a guy emerged moments later, blue and puking. I cannot imagine stopping into one, giving birth, and leaving the kid there. I won't even let my kids go in one if I can help it.

Keith Olbermann, here is a candidate for today's Worst Person in the World.

Wednesday, July 01, 2009

A Personal Message for Governor Mark Sanford

A few minutes ago I was having a conversation with my husband. He was talking about you. He asked me, "Did you hear about this? Sanford is claiming that this woman is his soulmate, and that this is a tragic love story, but he was going to 'learn to love his wife again'???"
Me..."Um, yeah."
Husband..."Now if I were to have an affair, and you found out, and forced me to break it off..."
Me..."Oh no need to worry, I would break "IT" off for you."
(Scared look. He knows I mean that.)
Husband..."Ok, so then I have to go back to Argentina just to make sure it wasn't a mirage or something and I get caught and I say 'I really love this woman but I will make myself learn to love my wife again' how would THAT go over?"
Me..."Not well my friend, I don't recommend you try it."

Just go away. You don't deserve your job. You don't deserve your wife. I am sure your state would be happy if you just went away. Go to Argentina and get your freak on. That's all.

Tuesday, March 24, 2009

LTS Gets a B

I am taking this great class, "The American Presidency." Our professor is young, energetic and manages to make each class interesting. I have noticed that there are a lot of young girls in the class, no doubt in part to his tall, casual good looks. He is a really nice guy, and I am really enjoying the class on most days. There have been a couple of times where I have left close to tears. The professor stresses participation, but several times has waved me off, and even said "Anyone BUT Cara." Now, a couple of weeks ago we were facing our midterm exam, and I was worried about the general nature of the professor's review guidelines, and I also wanted to probe him a bit about his feelings regarding my participation in the classroom, so I paid him a visit during office hours.
Professor Rocca was very welcoming and warm. I asked him for a push in the right direction regarding the exam, given that I haven't done this in a long time and was experiencing a little anxiety about the format (three short answer and one essay, it was totally subjective.) He was gracious enough to provide both guidance and reassurance that even if I didn't get a score that I hoped for there was ample opportunity to make it up with my paper and future exams. I then asked him if he thought that I was too outspoken in class, and he seemed a little puzzled and said, "No, you know you aren't coming off as a 'know-it-all' and your classmates aren't rolling their eyes when you talk, I think you are doing fine." So maybe I was just being too sensitive, though I am the only one he has waved off in a discussion, so I am trying to jump in less often. It's hard, though, I am really passionate about this subject.
So the exam...I really studied for this thing. I read, reread, and reread again. I kept my nose in the books for days, and even skipped a class the morning before to do a final review for this exam. Here is what is funny. I got to class with my blue book, and a pen I had just purchased. I sat down, I had a bottle of water and coffee in my thermos and was ready to go. Rocca handed out the exam and I started to write my name on the blue book and the brand new pen would not write. I scribbled all over the blue cover trying to get it to work, and got nothing but a few splotches of weak ink in deeply carved grooves on the paper. The very nice young man to my right passed me another pen, which I continued to scribble with until I got it going, and I scrawled "This doesn't bode well" beside my desperate attempts to get the pen working. I was off my game, and I could feel it. One major flaw also was I left my mp3 player at home and I always listen to Cake's "Nugget" to pump myself up (nurturing my inner badass). Well I started the exam, and the short answer questions weren't bad. I got through those and moved on to the essay with plenty of time to spare. Well I looked at the question, which roughly read, "Describe in detail the evolution of the nominating process of the president, why each transition occurred and what its effect was." Now this was the area that I had most emphasized in my studies. I was so prepared for this. I began to giggle because at that moment I utterly and completely drew a blank. I forgot everything. The brokered conventions. The King Caucus. Gone. Blank. I don't know how it happened but I found myself at a complete loss. After several minutes of trying to recompose myself I managed to hack together a completely unacceptable essay. It rambled, sputtered and lacked detail (with the exception of a barely related oddly placed personal anecdote). I drew it to a weak conclusion and sat there with the blue book closed for a minute, hoping desperately for a second wind, a relevation, anything. Nothing came so I handed it in and walked out, dazed and confused, and not in a good way.
As I left I texted my mentor and beloved friend and said "A 'B' would be a gift".
I had to wait two weeks for the results, running into spring break. Today I went to class and got my results. 85. Not bad! Not great, not what I expect of myself, but given my mental breakdown I can't complain.

Tuesday, March 17, 2009

The Bitch is Back Redux

Ok, it has gotten serious. I know that my level of slack cannot be easily explained away, but I promise I have been using my powers for good, not evil. I enrolled as a full time student at the University of New Mexico as a junior majoring in Political Science. So my writing is being directed in an academic way. I have to keep blogging though, so I will be here from time to time writing.
So much has been happening worthy of comment, the Rush Limbaugh/Michael Steele situation. President Obama's beautiful inauguration and the swell job he is doing as our new POTUS, bailouts and bonuses...and I just have been finding myself shaking my head in amazement or shaking my fist in anger.
So, I promise, I will be back...

Monday, January 05, 2009

Governor Richardson

I am not one of the bloggers who will be jumping on the Bill Richardson attack wagon. Governor Richardson has been an exemplary leader for New Mexico and a loyal, hard working public servant. I am saddened that he will not be Commerce Secretary, but I am grateful that we get to keep the best Governor New Mexico has ever had.
Onward and upward Governor Richardson!

Friday, January 02, 2009


This year has passed by so quickly for so many reasons, but was so action packed politically and personally. What began as a field of what, 33 or something? ended with the election of a brilliant, eloquent and young new President of the United States. Barack Obama will be inaugurated in about two and a half weeks and I am so excited. I worked for an opponent in the primary, Bill Richardson, but proudly supported Obama after Richardson withdrew, at the urging of my 10 year old daughter Amanda. Amanda turns 11 on inauguration day, and I would love to take her to DC for the event, but finances and time are conspiring against me. So I think I will throw a party for her and celebrate our new President from a distance.

New Mexico became one of the most hotly contested states in 2008. Senator Pete Domenici announced his retirement due to health reasons, though it has been said that his departure from the US Senate had more to do with the US Attorney Scandal than a degenerative brain disease, but the announcement shook up NM politics. Steve Pearce and Heather Wilson faced off for the republican nomination, Pearce edging out Wilson. Tom Udall initially faced opposition from Marty Chavez, but Tom's overwhelming popularity was so evident Marty withdrew and Tom coasted through primary season. I was privileged to work for the Udall campaign this fall, and no one runs a cleaner race than Tom. I know this is biased but Tom Udall is a pillar of integrity and proof that there are ethical and dedicated public servants in politics. Pearce tried to slap him around, but Tom's record and ability to make people feel so at ease contributed to a huge 22.1% margin of victory, no small achievement in New Mexico.

The Senate race created a total vacuum of representation in the US House, as all three of our congressional seats were vacated for the run, by Tom Udall in CD 3, Heather Wilson in CD 1, and Steve Pearce in CD 2. Former Albuquerque city council leader Martin Heinrich, a young, energetic candidate faced off against Sheriff Darren White in CD 1, defeating him handily, despite narrow polling. Harry Teague also won a decisive victory in CD 2 despite narrow polling as well, and Ben Ray Lujan faced little opposition in the north. So, NM went from 3 republicans and 2 democrats in congressional representation to all five being democrats.

NM Democratic Party Chairman Brian Colon deserves a lot of credit with his "Blue State 08" strategy, which mirrored the national 50 state strategy in leaving no county uncanvassed. Of course, I again confess bias where Chairman Colon is concerned, but in my 20 years of politics in New Mexico I have never seen a more powerful, persuasive and committed chair, nor one who inspires enthusiasm and activism the way Brian does. Well done Brian Colon, I know you will continue to lead our party and our state to a better future!

November's election did not end the political drama in NM. Governor Bill Richardson has been nominated to serve President Obama as Secretary of Commerce. Initially I was disappointed by this post, as Richardson seems suited perfectly to Secretary of State, but the more I learn about Commerce the more I see the fit. Richardson has been incredible for business and economic development in our state and his international diplomacy skills combined with business savvy will serve our nation well. His departure as governor is causing the deck chairs to reshuffle here. Lt. Governor Diane Denish will serve out the remainder of his term and while there are rumors of primary opposition in 2010 at this time it is rather hard to say. Should Diane strike a commanding profile and steward New Mexico through the current budget shortfalls I think she will not see a serious opponent until the general, but it will be challenging. Who takes Diane's seat at LTG remains to be seen, and that will surely generate another vacancy (any bets on Hector Balderas???)

One thing is certain, while 2008 was very exciting in NM politics, 2009 promises to be another thrill ride, through the 2010 midterm election. Good for wonks like me!

More blogging to come. I need coffee!