Thank you for highlighting Zenger, Andrew Hamilton and the principle that the lawyer and the jury established in Zenger.
Zenger's case is an excellent illustration of a principle stated by Justice Scalia writing for SCOTUS in District of Columbia v. Heller in 2008 (and reiterated in Bruen in 2022):
"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."
"[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, [merely] codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As [SCOTUS] said in United States v. Cruikshank [ in 1876], “[t]his is not a right granted by the Constitution. [Nor] is it in any manner dependent upon [the Constitution] for its existence."
The First Amendment uses similar text to recognize the pre-existence of rights, i.e., “make no law . . . abridging.”
Almost exactly 230 years after Zenger, SCOTUS put the Zenger principle into precedent, and even improved on it significantly in two decisions in 1964 (New York Times Co. v. Sullivan and Garrison v. Louisiana).
As SCOTUS emphasized in Sullivan, "Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize" the propriety of "any test of truth" that "puts the burden of proving truth on the speaker." "The constitutional guarantees require" a "federal rule that prohibits a public official from" penalizing or punishing criticism "relating to [any] official conduct" for its content until someone "proves that the statement was" a "falsehood" and that it was "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
As SCOTUS emphasized in Garrison, such “speech concerning public affairs” is “the essence of self-government,” and it “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.” Garrison (a lawyer) publicly implied eight judges were criminally corrupt. Even so, the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including judges’ “dishonesty, malfeasance, or improper motivation.” “Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” those “statements” proved “false” may be punished with “either civil or criminal sanctions.”
Unless constrained by law, the U.S. government should have absolute discretion to decide who is or is not issued a visa or permitted to enter the country. This should be outside the jurisdiction of courts. The people can elect a different government if they object to the use of that discretion or have a law passed creating a visa right. The costs and dangers of court created rights and litigation outweigh the benefits.
Rob, the most vital, most fundamental aspect of our Constitution is that the people clearly have no need to "elect a different government if they object to" any public servants usurping any power to exercise any "absolute discretion." The People objected to any such purported absolute discretion in any of our public servants, so our Constitution precluded it.
That was the very reason that (as the first words of our Constitution highlight) "We the People of the United States" did "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves and our Posterity." That also was the reason the People established in Article VI that "the supreme Law of the Land" was limited to our "Constitution, and the Laws of the United States which shall be made [by Congress] in Pursuance thereof; and all Treaties made" by the Senate, and all public servants of any significance must publicly acknowledge that they know they are "bound" to "support this Constitution" in all official action.
Rob, it's not legally possible that any public servant or servants "should have absolute discretion to decide" or do anything under our Constitution. As Article VI emphasizes (and requires public servants to publicly acknowledge) no public servant may exercise any official power except "to support this Constitution."
The last thing the people who wrote and ratified our Constitution wanted (or permitted) was anybody presuming or pretending that they had "absolute discretion to decide" or do anything under our Constitution. Such a concept implies, as Madison emphasized in Federalist No. 47 (https://guides.loc.gov/federalist-papers/text-41-50#s-lg-box-wrapper-25493412) in 1788 (quoting Montesquieu in The Spirit of the Laws in 1754) "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands" which is "the very definition of tyranny." The people who wrote and ratified our Constitution and the Bill of Rights repeatedly emphasized (including in multiple respects in our Constitution) that "the preservation of liberty requires that the three great departments of power should be separate and distinct." They understood all too well that any person or group of persons with too much power (any absolute discretion over the exercise of any power) posed an existential threat to national security and our liberty.
Article I emphasizes that even Congress has no power to "make" any "Laws" except to the extent that they are both "necessary and proper for carrying into Execution" the "Powers" that the People vested in Congress or both "necessary and proper for carrying into Execution" any "other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Article VI emphasizes that all "Laws of the United States" must "be made [only] in Pursuance" of our Constitution.
Article II emphasizes that the People vested in the President only "executive Power," which, to a great extent means only the power and duty to "take Care that the Laws be faithfully executed." Beyond that, as the President's oath emphasizes, his powers are limited to only what is necessary and proper to "preserve, protect and defend the Constitution of the United States."
Article III establishes the duty of federal judges in any "Case" or "Controversy" that is "under this Constitution, the Laws of the United States, and Treaties" to determine (and explain) how one or more of those parts of the supreme law of the land governs the facts and circumstances.
I struggle with 1A dogma. Without a law to allow: Could a court decide to allow an invasion force to land and enter the country? A sleeper cell of terrorists entering as individual asylum cases? A person that in classified proof is known by the government as a spy? A person with inclinations or ideology to support any of those?
Regarding the nature and limits of judicial power, it's well worth carefully considering Alexander Hamilton's explanation in Federalist No. 78. It's important to bear in mind that Hamilton, Madison and John Jay used The Federalist Papers to explain to people the meaning of our Constitution so that they would support ratification--making it the paramount part of the supreme law of the land.
Federalist No. 78 explains what the people established as the law by ratifying the Constitution. Federalist No. 78 was the foundation for (and some of it was even repeated in) much of the best analysis in Marbury v. Madison about the meaning of the "independence" of judges, i.e., their duty to be independent of everything except the law and facts that the People required or permitted in or under our Constitution.
Independence means that "judges [actually] do their duty as faithful guardians of the Constitution." The "necessary independence" of judges means their "inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice." "It can be of no weight to say that the courts, on the pretense of a [law's] repugnancy [to the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature" (or the Constitution of the People). "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents."
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore" is the duty of judges "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 [in the Constitution] to the intention of their agents" [in any level or branch of government]. "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [under to the Constitution] is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Rob, "dogma" is just the right word here! In "On Liberty" in 1859, John Stuart Mill highlighted the problem of America's brightest ideas becoming "dead dogma." That is what has happened in the minds of most Americans to the best of our Constitution. The answers to your questions are the answers that the People included in our Constitution for all the purposes highlighted in its first words.
Everything that any of our public servants do in our name must be devoted to the particular purposes for which the People created our Constitution, our nation and all three branches of national government: to promote "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."
In Article VI the People emphasized that no public servant anywhere in the U.S. has (or may exercise) any power except "to support this Constitution." The People in Article II also expressly limited "executive Power" to doing what is necessary and proper to "preserve, protect and defend the Constitution of the United States."
Consistent with their duty to support our Constitution, Congress enacted a law (5 U.S.C. 3331) that requires all legislative and judicial branch employees and all executive branch employees below the president to acknowledge that their foremost and constant duty is to "support and defend the Constitution of the United States against all enemies, foreign and domestic" (not any mere person or mere party) and "bear true faith and allegiance to the" our Constitution (not any person, party or even any religion).
As Article I emphasizes, the People assigned to Congress the power and the duty to "make all Laws" that turn out to be "necessary and proper for carrying into Execution" absolutely "all" the "Powers" that the People vested in Congress or "in the Government of the United States, or in any Department or Officer thereof," i.e., the executive and judicial branches and their officers. The People emphasized in Amendment V (and Amendment XIV) that "No person" can be "be deprived of life" or any "liberty" or any "property" before being afforded all "process of law" that is "due."
The People emphasized in Amendment I that not even "Congress" has any power to "make [any] law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Those words secure our freedom of thought, expression, communication and association. So no public servant has the power to deprive any person of any "liberty" or any "property" merely because such "person" has "inclinations or ideology to support" something.
Regarding "invasion," consider that the Constitution repeatedly emphasizes that the People created our Constitution, our nation and all three branches of national government, in part, to "provide for the common defence." The power of the president to act for such purpose without the approval of Congress is analogous to the power of the states. "No State" (and no president) may "without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Of course, no court can authorize any actual invasion, but courts clearly can (and they must in an actual case or controversy) adjudicate whether the U.S. actually is "in such imminent Danger as will not admit of delay."
As for members of a "sleeper cell" that depends on the proof, and as for "classified proof," it turns out Congress created courts in which judges can adjudicate such matters. Congress created the FISA court and, as we've recently learned, the Alien Terrorist Removal Court. See https://www.stevevladeck.com/p/239-the-alien-terrorist-removal-court.
Where is the copy under the "Culture: segment of the post?
Thank you for highlighting Zenger, Andrew Hamilton and the principle that the lawyer and the jury established in Zenger.
Zenger's case is an excellent illustration of a principle stated by Justice Scalia writing for SCOTUS in District of Columbia v. Heller in 2008 (and reiterated in Bruen in 2022):
"Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."
"[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, [merely] codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As [SCOTUS] said in United States v. Cruikshank [ in 1876], “[t]his is not a right granted by the Constitution. [Nor] is it in any manner dependent upon [the Constitution] for its existence."
The First Amendment uses similar text to recognize the pre-existence of rights, i.e., “make no law . . . abridging.”
Almost exactly 230 years after Zenger, SCOTUS put the Zenger principle into precedent, and even improved on it significantly in two decisions in 1964 (New York Times Co. v. Sullivan and Garrison v. Louisiana).
As SCOTUS emphasized in Sullivan, "Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize" the propriety of "any test of truth" that "puts the burden of proving truth on the speaker." "The constitutional guarantees require" a "federal rule that prohibits a public official from" penalizing or punishing criticism "relating to [any] official conduct" for its content until someone "proves that the statement was" a "falsehood" and that it was "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
As SCOTUS emphasized in Garrison, such “speech concerning public affairs” is “the essence of self-government,” and it “should be uninhibited, robust, and wide-open,” and it may “include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.” Garrison (a lawyer) publicly implied eight judges were criminally corrupt. Even so, the “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant” and protected, including judges’ “dishonesty, malfeasance, or improper motivation.” “Truth may not be the subject of” any type of content-based “sanctions” “where discussion of public affairs is concerned,” so “only” those “statements” proved “false” may be punished with “either civil or criminal sanctions.”
Unless constrained by law, the U.S. government should have absolute discretion to decide who is or is not issued a visa or permitted to enter the country. This should be outside the jurisdiction of courts. The people can elect a different government if they object to the use of that discretion or have a law passed creating a visa right. The costs and dangers of court created rights and litigation outweigh the benefits.
Rob, the most vital, most fundamental aspect of our Constitution is that the people clearly have no need to "elect a different government if they object to" any public servants usurping any power to exercise any "absolute discretion." The People objected to any such purported absolute discretion in any of our public servants, so our Constitution precluded it.
That was the very reason that (as the first words of our Constitution highlight) "We the People of the United States" did "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves and our Posterity." That also was the reason the People established in Article VI that "the supreme Law of the Land" was limited to our "Constitution, and the Laws of the United States which shall be made [by Congress] in Pursuance thereof; and all Treaties made" by the Senate, and all public servants of any significance must publicly acknowledge that they know they are "bound" to "support this Constitution" in all official action.
Rob, it's not legally possible that any public servant or servants "should have absolute discretion to decide" or do anything under our Constitution. As Article VI emphasizes (and requires public servants to publicly acknowledge) no public servant may exercise any official power except "to support this Constitution."
The last thing the people who wrote and ratified our Constitution wanted (or permitted) was anybody presuming or pretending that they had "absolute discretion to decide" or do anything under our Constitution. Such a concept implies, as Madison emphasized in Federalist No. 47 (https://guides.loc.gov/federalist-papers/text-41-50#s-lg-box-wrapper-25493412) in 1788 (quoting Montesquieu in The Spirit of the Laws in 1754) "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands" which is "the very definition of tyranny." The people who wrote and ratified our Constitution and the Bill of Rights repeatedly emphasized (including in multiple respects in our Constitution) that "the preservation of liberty requires that the three great departments of power should be separate and distinct." They understood all too well that any person or group of persons with too much power (any absolute discretion over the exercise of any power) posed an existential threat to national security and our liberty.
Article I emphasizes that even Congress has no power to "make" any "Laws" except to the extent that they are both "necessary and proper for carrying into Execution" the "Powers" that the People vested in Congress or both "necessary and proper for carrying into Execution" any "other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Article VI emphasizes that all "Laws of the United States" must "be made [only] in Pursuance" of our Constitution.
Article II emphasizes that the People vested in the President only "executive Power," which, to a great extent means only the power and duty to "take Care that the Laws be faithfully executed." Beyond that, as the President's oath emphasizes, his powers are limited to only what is necessary and proper to "preserve, protect and defend the Constitution of the United States."
Article III establishes the duty of federal judges in any "Case" or "Controversy" that is "under this Constitution, the Laws of the United States, and Treaties" to determine (and explain) how one or more of those parts of the supreme law of the land governs the facts and circumstances.
I struggle with 1A dogma. Without a law to allow: Could a court decide to allow an invasion force to land and enter the country? A sleeper cell of terrorists entering as individual asylum cases? A person that in classified proof is known by the government as a spy? A person with inclinations or ideology to support any of those?
Regarding the nature and limits of judicial power, it's well worth carefully considering Alexander Hamilton's explanation in Federalist No. 78. It's important to bear in mind that Hamilton, Madison and John Jay used The Federalist Papers to explain to people the meaning of our Constitution so that they would support ratification--making it the paramount part of the supreme law of the land.
Federalist No. 78 explains what the people established as the law by ratifying the Constitution. Federalist No. 78 was the foundation for (and some of it was even repeated in) much of the best analysis in Marbury v. Madison about the meaning of the "independence" of judges, i.e., their duty to be independent of everything except the law and facts that the People required or permitted in or under our Constitution.
Independence means that "judges [actually] do their duty as faithful guardians of the Constitution." The "necessary independence" of judges means their "inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice." "It can be of no weight to say that the courts, on the pretense of a [law's] repugnancy [to the Constitution], may substitute their own pleasure to the constitutional intentions of the legislature" (or the Constitution of the People). "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents."
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore" is the duty of judges "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 [in the Constitution] to the intention of their agents" [in any level or branch of government]. "Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people [under to the Constitution] is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."
Rob, "dogma" is just the right word here! In "On Liberty" in 1859, John Stuart Mill highlighted the problem of America's brightest ideas becoming "dead dogma." That is what has happened in the minds of most Americans to the best of our Constitution. The answers to your questions are the answers that the People included in our Constitution for all the purposes highlighted in its first words.
Everything that any of our public servants do in our name must be devoted to the particular purposes for which the People created our Constitution, our nation and all three branches of national government: to promote "a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity."
In Article VI the People emphasized that no public servant anywhere in the U.S. has (or may exercise) any power except "to support this Constitution." The People in Article II also expressly limited "executive Power" to doing what is necessary and proper to "preserve, protect and defend the Constitution of the United States."
Consistent with their duty to support our Constitution, Congress enacted a law (5 U.S.C. 3331) that requires all legislative and judicial branch employees and all executive branch employees below the president to acknowledge that their foremost and constant duty is to "support and defend the Constitution of the United States against all enemies, foreign and domestic" (not any mere person or mere party) and "bear true faith and allegiance to the" our Constitution (not any person, party or even any religion).
As Article I emphasizes, the People assigned to Congress the power and the duty to "make all Laws" that turn out to be "necessary and proper for carrying into Execution" absolutely "all" the "Powers" that the People vested in Congress or "in the Government of the United States, or in any Department or Officer thereof," i.e., the executive and judicial branches and their officers. The People emphasized in Amendment V (and Amendment XIV) that "No person" can be "be deprived of life" or any "liberty" or any "property" before being afforded all "process of law" that is "due."
The People emphasized in Amendment I that not even "Congress" has any power to "make [any] law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Those words secure our freedom of thought, expression, communication and association. So no public servant has the power to deprive any person of any "liberty" or any "property" merely because such "person" has "inclinations or ideology to support" something.
Regarding "invasion," consider that the Constitution repeatedly emphasizes that the People created our Constitution, our nation and all three branches of national government, in part, to "provide for the common defence." The power of the president to act for such purpose without the approval of Congress is analogous to the power of the states. "No State" (and no president) may "without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Of course, no court can authorize any actual invasion, but courts clearly can (and they must in an actual case or controversy) adjudicate whether the U.S. actually is "in such imminent Danger as will not admit of delay."
As for members of a "sleeper cell" that depends on the proof, and as for "classified proof," it turns out Congress created courts in which judges can adjudicate such matters. Congress created the FISA court and, as we've recently learned, the Alien Terrorist Removal Court. See https://www.stevevladeck.com/p/239-the-alien-terrorist-removal-court.