On the 19th Amendment:
I think you misunderstand my point. And it comes from a lack of having read all the case law and understanding several key legal distinctions. So, before attempting to pick apart anything I say, read the whole thing. If you get hung up on one item and start considering your response before you finish reading it all, then you are probably going to miss a key point.
From a legally theoretical standpoint:
1. Government cannot give you rights. Remember, rights precede the existence of government. Government can only protect those rights, though as we have sadly seen in our day in age, sometimes they don't.
2. Conversely, government can bestow privileges, and can thus take them away. You need to understand the distinct differences between these two legal terms.
From the pragmatic application of theory:
3. Voting has never been a right in the theoretical sense. It's been called a right, but it's as much a right as a "right to health care" is a right. If it were a right, then why can't children or infants vote; why can't immigrants vote; why can't inmates vote; why can't the mentally handicapped or the mentally insane vote; why can't non-residents vote? Remember governments are supposed to protect rights.
4. Item 3 reveals a simple truth: voting is a privilege government extends to its citizens. However, in certain instances, the government has extended the privilege as a pseudo-matter of right. And it's only where government has done so that the Amendments we are discussing come into play.
In the entire history of early America, voting was a privilege granted to adult, white males. Post-Civil War, the constitution required states not withhold the privilege on account of race, then later on account of sex, failure to pay any tax, and most recently on age of the voter if that person is over 18 years old.
However, none of these amendments grant the right to vote. A state could theoretically change the selection process of all its currently-elected offices to be selection by state-wide random selection/lottery. In that case, no one has the right to vote for any office, yet their rights are not being violated. It's simply an example of where the state has done away with the privilege of voting.
Therefore, essentially, the so-called "right" to vote for women, et al., only becomes a "right" where the state has extended that privilege 1) to some other class of citizen, 2) made that privilege a matter of right for that other class, and 3) the person is not disqualified by any other legally justifiable qualification. In other words, the voter denied the privilege is only being disqualified on the basis of one of those prohibited criterion.
Thus, saying the 19th amendment gave any right to anyone just doesn't hold water. What it did was required government to extend the privilege without regard to a voter's sex, but only if it was extending the privilege to begin with.
Before the 19th, women were extended the franchise. Look at Wyoming and several of the other Rocky Mountain states. Women there could vote before the 19th. It was only after the 19th that
all states became required to not disqualify a voter on the criteria of gender.
Could men vote before? Yes. Could women? Not necessarily. What about after the 19th: could women vote then? Not necessarily. They could only vote if men were allowed to vote. If the vote was women only, then the state was violating the 19th. Same the other way around. If women couldn't vote because nobody could vote, then there's no violation.
Thus, don't mistake the practical outcome for what the constitutional language itself does.
It appears you are making a logical mistake that I like to call "mistaken reversal": "If P, then Q" does not equate to "If Q, then P." "If you're female, then you can't vote" doesn't equate to "If you can't vote, then you're female." At least, these conditionals are how I'm understanding what you are saying, neither of which are true in either case.
As I said, Wyoming and the other western states prove the falsity of those conditional claims. There was no 19th amendment in the 1890s, but women in several of the western states could exercise the privilege of the franchise, precisely because their states had extended it to them. They didn't get the "right" to vote, they got the privilege of voting.
Now, onto Marbury v. Madison:
As I said in the post I linked, judicial review is inherent in a constitutional system unless expressly denied. What's more, the power of judicial review is visibly inherent in the judicial power of the U.S. Const. While you may not be able to see it on cursory glance, it's in there.
How so? It's the synthesis of three existing clauses of the Constitution which give the courts this power. It's the same as you saying I don't have a working flashlight; however, I do have a working flashlight bulb, a working flashlight case, and working batteries that fit the flashlight. Thus, once I put the three together, I
do have a working flashlight.
Your mistake is in only looking at the individual parts and not seeing what they do when put together, as a whole.
Let's review, shall we?
1. Article III, Section 1.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ...
What more can I say about this when Hamilton (whom on most things I disagree with) said it best: The Courts "may truly be said to have neither FORCE nor WILL, but merely judgment."
That is, the judicial power of the courts is wholly encapsulated in its power of judgment; that is, courts are to take the law as made by the enacting authority (typically the legislature; but, in the sense of the Constitution, the sovereign people and the sovereign states) and are to discern what the will of that enacting authority was. Once so done, the court enters its judgment; that is, it orders the parties to adhere to what the court reasonably believes the enacting authority wanted, not what the court believes to be right or what the court thinks the law ought to be.
As I said, in the case of the Constitution, it's the combined will of the states and the sovereign people, as embodied in the constitutional text, which the court must discern and enforce.
2. Article III, Section 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority...
This is what gets a case before the federal courts. And once the court has a case, it usually has to decide what to with it according to the law. If a constitutional dispute is raised by a party, the court has to address it (though they will usually only do this as a last resort, seeking to resolve the case on another ground if at all possible before reaching the constitutional question).
3. Article VI.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...
This is the big one that really makes the power inherent. Remember, it's the Constitution and the laws made in pursuance thereof that are the supreme law. That means Congress, the President, and even the Courts are all inferior to the Constitution.
It's the Constitution which created all three in an organic capacity, and thus the Constitution is itself superior to any of the three branches. Thus, when a party to a suit which the court must resolve makes a constitutional claim, and when the court actually reaches that claim, if the will of Congress or the President conflicts with the will of the people via the Constitution, it's no mystery here who ought to win: the Constitution.
4. The Synthesis of the Three.
As I said in that post I linked, my take on Marbury was that all C.J. Marshall did was state the inherent duty of the court to prefer the Constitution to any ordinary statute when there's a conflict between the two.
I'll use the same example I did last time: Article I, Section 9 prohibits Congress from laying a tax on exports.
If Congress does makes such a law, and some one contests the constitutionality of that tax in court, then all three of these clauses come into play.
1. Is this tax on exports an issue arising under the Constitution or federal law? Clearly so. It arises under federal law.
2. Is this tax on exports made in pursuance of the Constitution? Clearly not. In this instance, the Constitution prohibits Congress from laying such a tax.
3. What then is the court to do? The court is to exercise its judicial power by entering a judgment.
The issue over this tax concerns a dispute between an act of Congress and a provision of the Constitution. Here, the court should enter a judgment against Congress, of course. Congress has no power to make such a law; thus, any act of Congress which creates such a statute is not law. And if it's not law, it's not enforceable as such. It is null and void of any legal force. It is, in a word, unconstitutional.
The ball's in your court now. Justify why the person exporting goods should have to pay the tax since, as you say, the court has no power to pronounce the tax unconstitutional nor any power to enjoin either Congress or the President from enforcing the tax.
