Publius-Huldah's Blog

Understanding the Constitution

Clearing up the confusion about Marbury v. Madison

By Publius Huldah

It is true that the Constitution does not expressly say that the federal courts have the power to strike down acts of Congress which are unconstitutional.

What Article VI of the Constitution does say, however, is that (a) the Constitution is the supreme law of the land and (b) judicial officers (among others) are under Oath to support the Constitution.

So what are the logical implications of the foregoing? That when an act of Congress violates the Constitution, and the issue is brought before a court in a lawsuit, it is the sworn duty of the Court to side with the Constitution and against Congress.

Let me give an illustration: Say Congress passes a law requiring all Jews to wear yellow armbands with the Star of David in black, and requiring all Christians to wear white armbands with the cross in black. And Congress makes it a felony for a Jew or Christian to leave their homes without wearing the arm bands. You – a Jew or Christian – go outside without wearing your armband and are arrested and charged with a felony.

If I am your defense counsel [I got my start as a criminal defense attorney and won almost all of my cases, so you would be in REALLY good hands!], the first thing I will do is to file a motion to dismiss the charge against you on the ground that the statute under which you are charged is unconstitutional as outside the scope of the powers granted to Congress AND as in violation of the First Amendment.

What do you want the Court to do? Do you want them to side with the Constitution? Or do you want them to side with Congress?

In Marbury v. Madison (1803), the Court said when an act of Congress violates the Constitution, the Court must side with the Constitution and against Congress. They were right! That is the Judicial Branch’s “check” on the Legislative Branch.

The Legislative Branch’s “check” on the Judicial Branch is to impeach and remove from office federal judges who violate the Constitution (see e.g., Federalist No. 81 (8th para).

The Executive Branch’s “check” on the Judicial Branch is to refuse to enforce their Orders and Judgments (see e.g., Federalist No. 78 (6th para).

The Executive Branch’s “check” on the Legislative Branch is to refuse to enforce their unconstitutional statutes.  So if Congress passed the armband law, it is the sworn Duty of the President, mindful of his Oath of Office to “preserve, protect and defend the Constitution”, to issue an Executive Order instructing the Attorney General, the United States Attorneys, and the US Department of Justice, that they are NOT TO ENFORCE the armband law. The President doesn’t need a “green light” from the Judicial Branch!  The Executive Branch has its own “check” against unconstitutional acts of Congress.

Our Constitution is an elegant piece of work.  Have you read it?

revised Jan. 9, 2020

November 7, 2019 - Posted by | Checks and Balances, Jucicial Review, Marbury v. Madison, Oath of Office | , , ,


  1. Thank you darling for explaining this so well. I would like to bring a suit against all the rats in Congress right now that are trying to drum up support and presenting false evidence against our President Trump, to try to impeach him illegally and unconstitutionally, because it is sedition, a coup d’état and should be handled as such. Do you agree? Isn’t there a precedent here to use against these lawless ones who are trying to twist the law and evidence so as to convict an innocent man?! Donna


    Comment by ppanther | November 8, 2019 | Reply

    • Thank you for your sweet words, Donna!

      Our Framers never said that the remedy when people in Congress [the Legislative Branch of the federal gov’t] violate the Constitution, it is the job of the federal courts [the Judicial Branch of the federal gov’t] to slap their hands, undo their works, and punish them. We have merely been conditioned to believe that only the Judicial Branch of the federal government can smack down the other Branches of the federal government.

      When people in Congress act improperly – as they are doing now and have done for a very long time, the Primary Remedy is for The People to vote them out of office. But The People have become so morally corrupt and ignorant that they keep re-electing these vile people to office. THAT IS OUR PROBLEM – our People are degenerate. Only an intellectual, moral, & religious Regeneration will fix our Country.

      Each House of Congress has the power to expel its members [Art. I, Sec. 5, clause 2], but Republicans are too gutless to do this. I don’t know the Rules of the House & Senate, but there probably aren’t enough Republicans in the House to Expel the Democrat Representatives who are behaving so disgracefully.

      There is no “political” fix for our problems – and if you want “Justice”, don’t go to the federal courts to find it.


      Comment by Publius Huldah | November 12, 2019 | Reply

  2. Interesting. Here’s a thought, correct me please. Coup, insurrection and rebellion, thought not synonymous, all have the same ending if successful. The United States Constitution is very clear on what constitutes impeachment. At Art. II, Section 4 it states clearly that impeachment and removal from office shall occur if convicted of Treason, Bribery, or other high Crimes and Misdemeanors. I look at ‘high Crimes’ to be felonies and ‘high Misdemeanors to be of class A (the highest).

    Art. III, Section 3 states that Treason shall consist only of ‘levying war’. The def. in Black’s Law says ‘the assembling of men for the purpose of effecting by force a treasonable object;’ The word force defined is not limited to violent force such as weapons in the form of rifles etc.

    Now the question on my mind is: If the dems in the House vote for Articles of Impeachment without the proof of one of the crimes listed in the Constitution is that not an overt act in which two witnesses can attest to in a court of law? Got to go to work. Sorry it’s not as comprehensive as i’d like.


    Comment by Doug Smith | November 8, 2019 | Reply

    • Well, you can’t properly insert your own definitions of words in the Constitution! I think the original understanding of “high Crimes” is a crime committed by a person in a high position. And the meaning of “misdemeanor” at the time our Constitution was drafted is very different from the common understanding of today. I wrote a Primer on Impeachment several years ago – it’s solid:

      The definition of “treason” at Art. III, Sec.3 is a bit broader than “levying war”. What Jane Fonda did during the Viet Nam war constitutes “treason” within the meaning of Art. III, Sec. 3. [In the interests of full disclosure: I am a Viet Nam vet, and while I (being JAG) was a non-combatant, I confess that I hate that woman.]

      Since our Constitution defines “Treason”, that is the definition we are to go by. We can’t go by Webster’s definition since our Constitution has preempted the field.

      The Federalist Papers are clear – impeachment addresses “political offenses”. FURTHERMORE, no one has the power to review the acts of the House and the Senate. The House may impeach for whatever reason they like. The Senate may refuse to convict, but NO ONE has the power to “undo” or “rescind” or “nullify” the impeachment.

      And no one has the power to review or change the Senate’s decision to convict or acquit!

      The impeachment power is vested in the House alone, and the power to convict or acquit is vested in the Senate alone.

      So yes, corrupt politicians have the power to wrongly impeach & remove a sitting President.

      That we have politicians in both Houses who would wrongly impeach & convict a sitting President is a Reflection on the degeneracy of the American People who elected those politicians to office.

      Sorry for the delay in responding!


      Comment by Publius Huldah | November 12, 2019 | Reply

      • Thank you for your response. I just finished a cursory review of the ‘coup’ attempt of President Andrew Johnson in 1868. Thank goodness for the reasoning and recognition by Senator Lyman Trumbull that the impeachment by the Rascally Radical Republicans in the House was political in nature and focused on the Tenure of Office Act and its subsequent veto by President Johnson. Of course, the House overrode the veto because they wanted Mr. Stanton, the Secretary of War, to continue in his duties for he ( unlike President Lincoln) favored tough punishment for the Southern States participation in the Civil War.

        Mr. Trumbull’s reasoning is still valid today for he explained in his reasoning that the political power of the President would have been destroyed along with the Constitution’s system of checks and balances. Here is what Mr. Trumbull said:

        “Once set the example of impeaching a President for what, when the excitement of the hour shall have subsided, will be regarded as insufficient causes, as several of those now alleged against the President were decided to be by the House of Representatives only a few months since, and no future President will be safe who happens to differ with a majority of the House and two thirds of the Senate on any measure deemed by them important, particularly if of a political character. Blinded by partisan zeal, with such an example before them, they will not scruple to remove out of the way any obstacle to the accomplishment of their purposes, and what then becomes of the checks and balances of the Constitution, so carefully devised and so vital to its perpetuity? They are all gone.”

        I hope when this impeachment thing is all over that cooler heads in Washington will prevail and we will still have the checks and balances in our political system that the Constitution provides.

        Every democrat that votes for Articles of Impeachment should be voted out of office in the nearest upcoming elections.

        On a side note. I too, served in the Armed Forces from 1966 to 1969. To this day I will not watch a movie or TV show or read any article in a newspaper etc. in which she (Jane Fonda) has any involvement. I was offered the position of Forward Air Controller and a hard stripe Sargent E5 rank but declined so I am considered a Vietnam Era Veteran having not served in that theater. I still believe she caused many American lives to be lost by giving aid and comfort to the enemy in a time of war. A mystery still prevails in my mind as to why she was never prosecuted?


        Comment by Doug Smith | November 16, 2019 | Reply

        • Fascinating post, Doug Smith! Sorry for the delay in responding. Mr. Trumbull’s words are wise – and he is right. Thank you for posting them. But the weakness in our system [indeed in any form of government] is that its proper functioning depends on the American People having the virtue and intelligence to elect honest and competent men to office. If the House impeaches a President for scurrilous reasons, the ONLY remedies are for the Senate to refuse to convict and for the People to vote the errant Representatives out of Office. There is no other remedy.

          I expect Jane Fonda wasn’t prosecuted for Treason because the people who were in a position to do it didn’t want to prosecute her. The Leftists would never prosecute their heroine; and the RINOS don’t have the guts to do anything the hard Left doesn’t like.


          Comment by Publius Huldah | November 30, 2019 | Reply

  3. Ms.Huldah, As you may know, I am not a lawyer, as my field of study lies in Theology. What I know about the Constitution, I was taught many years ago in grade school and what I learned on my own, and I agree with what you have stated in your article concerning ‘Marbury vs, Madison’. Your point is also clearly stated in ‘Miranda vs, Arizona’ – (384 US 436 p.491)- which states:”Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” Then there is 16 Am Jur 2d, Sec 177 late 2d, Sec256, which states: “No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”, Yet when it comes to the “Bill of Rights”, especially when it comes to the First and Second Amendments, there seems to be no end to their violations, and none of the three branches of government want to do any thing about it. Even the Judicial Branch backs up many of those violations.

    For the past few years, I have been hearing many so-called lawyers and constitutional ‘experts’ claim that there is no such thing as unlimited Rights when it comes to the “Bill of Rights”, as they more and more limit or even talk about eliminating both our Free speech, Religious and even our Second Amendment Rights. Also, since the Constitution IS the Supreme Law of the land, then how come the individual States can enact laws that violate the constitution. I understand that there are States Rights, where the individual States can enact laws for their individual States, but does that give them the right or the power to violate constitutional laws? I sincerely believe that a large majority of those holding office in the federal, state and local levels, including the courts, are either constitutionally ignorant or they just don’t care what the Constitution says, and the fact that the Constitution is no-longer being taught in our schools, is placing our Constitutional Republic in a very dangerous position.

    Liked by 2 people

    Comment by sayednagregori2018 | November 8, 2019 | Reply

    • Greeting, dear Abouna,

      I just finished reading Jeremiah and Ezekiel which describes periods of lawlessness and false prophets. That’s what we have in America today.
      I fear we will have the same end as the wicked people in those two books. Meanwhile, our job is to warn people – whether they listen to us or not!

      Liked by 2 people

      Comment by Publius Huldah | November 8, 2019 | Reply

  4. […] Clearing up the confusion about Marbury v. Madison […]

    Liked by 1 person

    Pingback by Clearing up the confusion about Marbury v. Madison – Building Blocks for Liberty | November 7, 2019 | Reply

  5. Reblogged this on The way I see things ….


    Comment by Lisa the Infidel | November 7, 2019 | Reply

  6. Excellent article, short and sweet, thank you.

    Also, isn’t arm band laws directed at a grout of people a Bill of Attainder? Bill of Attainder is disallowed by two articles in the Constitution.


    Comment by allandouglas | November 7, 2019 | Reply

    • A “Bill of Attainder” is a legislative finding of guilt in a criminal matter. Instead of having a Jury trial where you get to cross examine the prosecution witnesses and put on your own witnesses, make your arguments, and then have a Jury of your peers decide whether you are guilty, a Legislature simply passes a law saying you are guilty. They used to do this in England – the Parliament would pass a bill saying so & so was guilty [usually of something like Treason] and then his head was chopped off.

      So the arm band law wouldn’t be a bill of attainder. But it sure would be unconstitutional!


      Comment by Publius Huldah | November 7, 2019 | Reply

  7. ok , hows this, congress create obama care ,, supreme court ruled it constitutional changed the original reason it went their to be heard , the justices turned it into a tax to penalize people for not having it and congress wins . another case was natural born qualification to be president stating it only applies to just one parent not both, again, the court is wrong , people are getting in office over a bad opinion.. now , congress passes laws called read flag laws , bump stop laws etc… they are creating laws (congress) for decades and the courts dont rule them unconstitutional.. what do we do when people like you are pointing these usurpation’s of the constitution out not only by congress but the courts not properly ruling? and , im asking what we can outside of voting


    Comment by hippie49 | November 7, 2019 | Reply

    • 1. Re obamacare: States should nullify it – refuse to comply. Just for fun, I wrote a nullification resolution for obamacare:

      The purpose of such a nullification resolution is to EDUCATE the people and to notify all within the State that the State will not be complying.

      2. Natural born citizen: what case are you talking about?

      3. All gun control laws passed by Congress and regulations promulgated by the BATF: States should nullify them – refuse to comply. Actually, some States are doing this.

      Our Framers ALWAYS told the States to nullify unconstitutional acts of any of the three branches of the federal government. I’ve several papers & videos on this. By now, I’d have thought the Patriots would have read them. See the posts here:


      Comment by Publius Huldah | November 7, 2019 | Reply

  8. Reblogged this on Starvin Larry.


    Comment by gamegetterII | November 7, 2019 | Reply

  9. Sadly, the majority of laws passed by congress since 1938 have been unconstitutional. The judges evidently are lacking intestinal fortitude enough to rule against them and it is not from fear of being removed from their being a judge. An example of both being wrong are all civil rights laws as it violates “equal protection under the law”, the same with states passing “move over laws” to protect police, firemen,cable tv repairmen, electrical line workers etc. If these laws do not protect all citizens they are illegal laws.

    Liked by 1 person

    Comment by Johnny Hiott | November 7, 2019 | Reply

    • We must keep the federal jurisdiction and the State jurisdictions separate.

      Yes, a great many of the laws passed by Congress are unconstitutional as outside the scope of powers granted to Congress in the Constitution. But the judges got brainwashed in law school to believe that the Constitution means whatever THEY say it means – this has been the mindset of American judges and lawyers for 100 years. It’s what I was told in law school some 50 years ago – that the Constitution means what the Supreme Court says it means. American Lawyers actually believe that!

      Re civil rights & the 14th Amendment & “equal protection of the laws”: for starters, see this:

      It’s somewhat complicated – you’ll need to take notes, and sweat to learn it!

      Move over laws are made by State legislatures, not by Congress. And they don’t violate the “equal protection” clause. When cars are stopped on the side of an interstate, it’s a safety measure for moving vehicles to “move over”.


      Comment by Publius Huldah | November 7, 2019 | Reply

  10. Obviously the Legislative Branche’s check on the Executive is impeachment. What is Executive’s check on the Legislative branch? Not enforce the laws?


    Comment by Jack H Follick | November 7, 2019 | Reply

    • RIGHT!!!!! That’s what Hamilton points out in Federalist No. 78 (6th para).

      If I were President, and Congress sent me the armband law for my signature, I would veto it giving my reasons. If Congress overrode my veto, I would issue an Executive Order directed to the Attorney General, the US Attorneys, and all the officers of the Department of Justice, ordering them to NOT prosecute violations of the pretended Armband law. I would call a press conference and use this as an opportunity to teach Americans about Enumerated Powers, why the pretended Armband law is unconstitutional, what my Oath of office requires me to do, and why I must order the AG, etc., NOT to enforce it.

      And remember, The President heads the Executive Branch and the AG, DOJ, US Attorneys, etc. are within the Executive Branch – the serve at the President’s pleasure. So the President acts properly when he issues Executive Orders to persons within the Executive Branch.


      Comment by Publius Huldah | November 7, 2019 | Reply

  11. Thank you. However, what is the citizen’s duty when the Courts violate their oath to the Constitution and uphold the unconstitutional law? Your example of the Jew and Christian arm bands is a very good one. So, what is our alternative to Judicial treason?

    Liked by 1 person

    Comment by Frank C | November 7, 2019 | Reply

    • So say you are convicted of violating the armband law – and the conviction was upheld on appeal.

      The next person who can right the wrong is the President of the United States. His Oath of office is to “preserve, protect and defend the Constitution of the United States”. Obviously, the arm band law is unconstitutional. Accordingly, it is the President’s DUTY to refuse to enforce it. The President has the Duty and the Power to refuse to let you be subjected to the punishment the court imposes. Remember! the Attorney General, the US Attorneys, the US Marshalls, etc., work for the Executive Branch – not the Judicial Branch. This is what Alexander Hamilton is saying at Federalist No. 78 (6th para).

      I wrote about this a while ago:

      What the federal judges are doing isn’t “treason” – “Treason” is defined at Art. III, Sec.3, US Constitution. but they are violating the Constitution.

      And so now we get to the REAL SOURCE OF OUR PROBLEMS: It isn’t the federal courts – it is that Americans have been indoctrinated with an alien and destructive philosophy – and it was done to us in the public schools. See

      What is required is an intellectual, religious, and moral regeneration of the American People. The alternative to such a regeneration is Hell on Earth.

      Sadly, most of our pastors are totally worthless – so few of them are helping us with the Regeneration we so sorely need.

      Liked by 1 person

      Comment by Publius Huldah | November 7, 2019 | Reply

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: