Obama v. Marshall

April 6, 2012

According to barack obama, John Marshall, the greatest Chief Justice of all time, was a reckless, activist judge.

Professor obama Gives a Lecture

In a response to press corps questions about last month’s obamacare hearings, our erudite professor/president lashed out at the Supreme Court, in what many saw as a blatent attempt to influence its ruling, in the process embarrasing himself by making several patently false statements about our Constitution and the Judiciary Branch.

Sensing — or perhaps tipped off — that last Friday’s initial vote had gone against his eponymous health care law, obama whined that the High Court was on the verge of taking “what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The boy genius went on to refer to our nation’s highest court as “an unelected group of people [who] would somehow overturn a duly constituted and passed law.”

Ignoring for the moment obama’s standard demogoguery (and, admittedly, calling a slim 7-vote victory as “a strong majority” is better than the Nancy Pelosi’s earlier description of a strict party-line vote as “bipartisan“), it’s important to emphasize the temerity of the president’s comments.  obama insinuated that the Judiciary never does, nor should it ever, overturn laws passed by the Legislative branch.

Activist Judges — Proglodyte Version

That’s a false meme which crops up among right-wingers and proglodytes alike whenever rulings don’t go their way.  As one dolt at The Atlantic wrote following the first ruling against obamacare, “contrary to what many Americans believe, our Constitution actually doesn’t provide for judicial review. The power of courts to invalidate state laws is perhaps implied in the text….”  I guess that’s true, if you count ‘something some Alexander Hamilton dude wrote in this obscure & irrelevant book, The Federalist Papers’, as “implied.”

The “general liberty of the people”, Hamilton argues in Federalist #78, “can be preserved in practice no other way than through” independent courts “whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

Hamilton rejects the claim “that the legislative body are themselves the constitutional judges of their own powers” as unsupported by “any particular provisions in the Constitution.”  To suppose “that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents” makes no sense to Hamilton.

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 … 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.

obama and the jacobins also choose to ingore another important document.  Art. III, Sec. 1  of the U.S. Constitution, establishes “The judicial power of the United States, shall be vested in one Supreme Court, and such inferior Courts as the Congress may from time to time ordaind and establish” (94 of them at present, including the several that ruled on obamacare).

Art. III. Sec. 2’s provision that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,the Laws of the United States … under their authority”, including “controversies to which the United States shall be a Party….”

Faced with the prospect of a ruling he won’t like, our constitutional law professor-in-Chief simply wished away that part of the Constistution that actually provides for judicial review (albeit, not in so many words.)  And this is where the ghost of John Marshall needs to get medieval on obama’s scrawny ass.

Judicial Review — 209 Years Young

If you, non-Harvard-matriculated, non-constitutional-law-lecturing plebeians need to know of one Supreme Court case, it should be Marbury v. Madison (1803), when the Court first struck down a federal law, establishing forever more the principle of Judicial Review.

The great, acclaimed first Chief Justice, John Marshall, whose opinions are considered touchstones by all (legitimate) legal scholars, declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department, to say what the law is.”  Following the ruling, this principle became known as Judicial Review.  It’s pedantic semantics to argue that Judicial Review was only implied, simply because the 1803-vintage coinage didn’t appear in the 1788 text.

Since 1803, the Supreme court has used its power of judicial review to repeal  nearly a thousand state statutes, including (progs take note) Roe v. Wade. Another 160 acts of Congress, including 6 New Deal laws that overstepped the limits of the Commerce Clause, plus over 50 in the just the past three decades, have been struck down.  That’s about five a year — hardly “unprecedented.”

Homework Assignment … for the Professor

Alarmed by obama’s apparent direct challenge to Judicial Review, the Fifth Circuit U.S. Court of Appeals ordered Eric Holder to respond in writing whether “the Department of Justice recognize[s] that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.”

Holder complied by confirming that “the power of the courts to review the constitutionality of legislation is beyond dispute” while insisting his bosses comments were “fully consistent” with that principle.

Following what must have been a crash refresher course on constitutional law, obama back-tracked on his comments:

The point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this….

They should have left it at that.  But White House spokesman Jay Carney  blurted out  that the president was specifically referring to “the precedent under the Commerce Clause” regarding a legislature’s ability to address “challenges to our national economy.”  Then the Harvard Law grad put his foot right back into his mouth:

We have not seen a court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce, a law like that has not been overturned at least since Lochner.  So we’re going back to the ’30s, pre-New Deal.

For the record, Lochner v. New York (1905)  predated the New Deal by three decades, is today considered largely irrelevant, and dealt with the Due Process Clause, not the Commerce Clause.

Real-life legal experts were quick to remind obama of U.S. v. Lopez (1995) and U.S. v. Morrison (2000), two quite recent Supreme Court cases where Congress was indeed found to have overstepped its Commerce Clause powers.  Both ruled that, even though a private act (packing a gun to school; beating up women; resp.) might have some aggregate effect on commerce, if not in itself commercial activity, it cannot be subject to regulation.

Calculated Ploy, or Emotional Outburst?

obama’s fractured-fairy tale version of Constitutional law may have been the first shot fired in a ploy to use the obamacare ruling in the election. Or, as fellow true liberal and political commentator, John Smart, surmised, “he lost his temper because he didn’t get his way.  That’s how narcissistic personalities act.”

Quite likely, the primary motive was to save the mandate by shifting a swing vote — Kennedy’s, most would guess.  But consider another possibility — the result obama was trying to influence was not a 5-4 in favor, but to avoid a 6-3 against.  Although the comments & questions of four leftist judges during the hearings mostly indicated support for the law, one line of questioning by Justice Sotomayor raised speculation.  “So … you’re answering affirmatively to my colleagues that have asked you the question, can the government force you into commerce,” she asked Verilli, the government’s attorney.  When he conceded that point, Sotomayor followed up rhetorically, “And there is no limit to that power.”  The need to establish a clear, limiting principle to the scope of Congress’ regulatory power — in this case, why insurance but not broccoli — was the central question on all nine justice’s minds.  It was the lack of clear limits that led courts nearly identical in philosophical spectrum as this one to rule in Lopez and Morrison.
Pols like James Carville believe obama can campaign successfully on a 5-4 loss, presenting it as part of the GOP crusade against ‘our values.’  Tacitly acknowledging that Republicans will control both houses come 2013, obama can offer himself as a ‘last line of defense’. The standard argument, that we need a Democrat in the White House to nominate new justices, will of course be made.  The fresh defeat of a law passed by Democrats contains more potency than the stale, vague threat to Roe, which three decades of conservative majorities on the Court have yet to repeal.

All these propaganda tools are seriously compromised were one of the four presumed ‘solid’ votes for the mandate to flip, especially an obama appointee.  Then the story line goes: ‘This guy devoted the entire first year of his term to getting this law passed,and now it’s wiped off the books.  He wasn’t smart enough to realize it had constitutional issues, nor could he even pick the right judge to uphold it.’

If obama did indeed learn that Sotomayor will rule against, it’s no wonder he lost his cool.

Do I Get My Single Payer Now?

Many progs, in sudden shock & disillusionment that the entire ACA may be overturned — not to mention fearing taunts by coworkers over their “Healthcare: Reformed!” coffee mug — desperately seek a silver lining.  If obamacare must be defeated, they reason, maybe it’s the first step to passing real healthcare reform: a single-payer system that covers absolutely everyone.  The more severely mentally ill believe losing before the Supreme Court was all along part of obama’s secret, multi-dimensional plan to implement single-payer.

Not so fast, gang.  Even assuming you somehow re-elect barry with Dem majorities in both houses while, barry’s simply not interested in single-payer.  In his impromptu teach-in he insisted that “in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care.”   Yet, as Single Payer Action —  you, know, barry, those liberals who filed that amicus curiae brief arguing against your mandate — stated in said brief:

[T]he Government characterizes the provision as necessary to the effective regulation by Congress of the national healthcare market, but disregards the proven success of single payer systems currently operating in the United States…. Congress has already implemented successful single payer systems that provide universal coverage to certain subsets of the population, including Medicare … and the Veterans Health Administration….

No surprise that healthcare experts who supported a national single payer system were banned from testifying before Congress.

A Tough Sell

Whatever the vote, if obamacare is struck down in whole or part, it will make touting the president’s list of accomplishments a tough sell.  To rally ‘the base’, obama may well be forced to promise of single-payer in his second term.  The GOP can easily counter by spinning it: ‘We just got rid of the obamacare y’all hate; now he’s promising to do obamacare all over again!’

Even from people who’d hoped for any kind of healthcare reform, giving obama a mulligan may be too much to ask.  He was handed a ‘mandate’ and large majorities in Congress, and he screwed up.  Those ideal conditions will not be recreated.  When the ACA was first introduced in 2009, it was a major disappointment to those on the far Left.  Now, a failure of obama’s healthcare juggernaut  may bring those long-supressed resentments back to the surface.  Given the efficiency of obama’s propaganda machine, it’s easy to forget the stridency of the voices on the Left originally opposed to obamacare:

  • Democrats “lost the initiative the minute that our party jumped into bed with the insurance companies,” complained Dennis Kucinich.  “This bill represents a giveaway to the insurance industry”
  • “This is essentially the collapse of health care reform” lamented Howard Dean. “Honestly the best thing to do right now is kill [it.]”
  • “From what we know about the bill, it is worse than passing nothing, ” seethed Jane Hamsher of Firedoglake, who found the bill “worse than passing nothing. If I wanted Joe Lieberman writing a health care bill, I would’ve voted for John McCain.”
  • Huffy Poo opined that the bill failed to pass “the first rule of medicine … ‘do no harm.'”

Even those obama slut-monkeys, MoveOn.org, protested outside the White House, issuing a press release complaining “[w]ithout a public option, it’s just a giveaway to the insurance companies, and it does nothing to control costs.”
While obama’s team eventually quelled dissent from the Left,  it has been unable to remedy overall discontent with obamacare.  The latest Gallup poll reported that only 20% of Americans, and just 37% of Democrats, thought the mandate was constitutional; that only 11% of swing state voters feel the law has helped their families; that 53/40, voters favored repeal of the law.  Of the 28 states that filed suits against the ACA, 12 went for obama in 2008.  And Scott Brown tells us all we need to know about how Massachusetts feel about obamacare.

This November, when trying to get out the vote, OFA may find itself fighting the resentment of otherwise dependable voters like this MoveOn member picketing outside the White House in 2009:

“To me, it’s the death of health care.  And that’s sad, because this was a real opportunity. I think people voted heavily Democratic because they wanted something done to solve the health care problem, and instead we’re just getting something that will benefit the insurance companies.”

(c) 2012 by True Liberal Nexus.  All rights reserved.

6 Comments | barack obama the deceiver, Constitutional Law, Democratic ineptitude, Elections, MoveOn, Proglodytes | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by Matt

Zimmerman, Martin, and the Trampling of the Constitution

March 28, 2012

The Mob Rushes to Judgement

Within hours of the news of the shooting death in Sanford, FL, the mob had already found George Zimmerman guilty of the “murder” of Trayvon Martin, then spent the next weeks cherry-picking facts to support their verdict.   A superfluous exercise, really, when a single headline had been sufficient for their ‘verdict’:  ‘unarmed black teenager wearing hoodie shot and killed by white man in gated community.’   To the reactionary minds of proglodytes, this was incontrovertible proof of a racially-motivated attack.  The photo of the angelic teen victim was plastered across the MSM, and the Outrage Brigade girded its loins for yet another crusade against  Governor George Wallace   The Sparta, Mississippi PD  the pervasive institutional racism in our society.

The crusade hit a speed bump when the first photo of Zimmerman showed a face possessing decidedly hispanic features (his mother is Peruvian).  For, while proglodytes are convinced that racism lurks in the soul of every Caucasian, they seem incapable of imagining a member of a minority ever hating another minority.  They quickly got over this shock and back to interpreting every nuance of the case as evidence of anti-black bias.

As further, less angelic details about Martin started to trickle in, the Outrage Brigade blocked these from their minds, instead labeling the  revelations  — Martin had been suspended for marijuana possession and/or trespassing, he may have been dealing, a stash of stolen jewelry had been found on his person, he may have punched a bus driver — as a racially-motivated “smear campaign.”

Acceding to the mob’s demands, the U.S. Department of Justice is investigating Zimmerman’s actions as a hate crime.  Regardless of what will eventually be revealed about the events, the DOJ investigation should cause great alarm to all freedom-loving Americans.  To understand why it is so dangerous, we need to first review some of the legal aspects of this story.


A Legal Analysis of the Incident

(Note:  hereafter, I shall refer to Zimmerman as “Z”, and Martin as “M”.  Not for convenience, rather to emulate the standard presentation of case law examples, where the particular characteristics of the participants are irrelevant.)

As far as we know, neither Z nor M did anything illegal up until the moment they encountered each other.  Foolish, or unwise, perhaps, but not illegal.  Z had a right to drive and walk around his neighborhood, and to challenge a stranger.  M had the same right to walk, or even run, around that neighborhood, and to tell a stranger to piss off.

There are also several as-yet undetermined things that may have occurred prior to the confrontation, which we can only speculate on.  In listing them, I make no assertion of their respective validity.

Z may have:

  • been earnestly trying to stop a perceived criminal;
  • been stalking M solely because of his color;
  • recklessly precipitated a physical confrontation;
  • uttered a racial epithet.

M may have:

  • been wandering lost on his first night in the neighborhood;
  • been casing houses for burglaries;
  • been stoned;
  • been scared for his safety;
  • decided to physically confront Z, instead of fleeing or calling for help.

While a few of these possible actions would be, in & of themselves, minor crimes or inchoate offenses, none can be considered the legal cause of M’s death.

Causation & State of Mind

When assessing culpability for a tort or a crime, the law looks for two things, causation, and state of mind (“mens rea”, or criminal intent).

The causation question is commonly phrased thus:  ‘BUT FOR A’s act, would B have suffered the harm?’   The causal link may not be extended infinitely.  But for his suspension, M would not have been in that neighborhood that night.  Yet that does not mean M’s school principle caused M’s death.  The focus is normally placed on the most proximate cause.

The proximate cause of M’s death was the firing of the gun by Z.  This does not necessarily mean, however, that Z is guilty of murder, or any crime.  The circumstances surrounding the action, the events leading up to it, and Z’s state of mind, all are factors.

Criminal codes vary from state-to-state, but most adopt a standard hierarchy, ranging from premeditated murder, through reckless-, then negligent manslaughter, on down to lesser crimes.  The incident does not fit the definition of murder, but could conceivably be deemed manslaughter, were Z found to have acted with reckless disregard of the potential consequences.  Z’s state of mind at the time, as compared to what the average person could reasonably be thinking in that situation, would then be a factor.

Z’s act could also be deemed justifiable homicide, which is not a crime.  You have the right to use deadly force, if you reasonably fear you will be killed or suffer serious bodily harm.  If it is true that, as Z was dialing his cell phone, M violently assaulted Z, knocking him to the ground with a punch to the nose, then straddling him to repeatedly slam his head against the concrete, Z’s fear for his physical safety or life would be eminently reasonable.

All this is for the The State of Florida to decide.  If the District Attorney chooses to make a charge, a grand jury must then be convened to indict. If an indictment is issued, a court would then hear the case, and a jury reach a verdict. If a guilty verdict is returned, finally a judge would levy a sentence.  That’s known as due process under the law.


Reserved Powers

The mob is impatient of that process, though, and has persuaded the DOJ to proceed with a prosecution of Z for hate crime under the Matthew Shepard Hate Crimes Prevention Act (“HCPA“).  That poses dangerous threats to our Constitution, our form of government, and to all our civil liberties.

First, the Constitution reserves for the states what are known as police powers.  These are not just cops issuing speeding tickets, rather all form of regulation in the interests of the health, safety and welfare of the state’s citizens.  The federal government is only supposed to assume police power within the narrow confines of its enumerated powers.  When the HCPA was passed in 2009, some observers noted with concern that it “greatly expands the federal government’s jurisdiction to prosecute cases that properly belong in a state court.”

Laws that expand federal police power always require a “hook” for justification, usually the Commerce Clause.  For the Shepard Act, the 13th Amendment’s banning of slavery was also pressed into service as a “hook” via a painfully convoluted argument:

“For generations, the institutions of slavery and … involuntary servitude were enforced … through widespread public and private violence directed at persons because of their race, color, or ancestry, or perceived race, color, or ancestry. Accordingly, eliminating racially motivated violence is an important means of eliminating … the … relics of slavery ….”

Second, many argue the HCPA violates the 5th Amendment by subjecting citizens to Double Jeopardy, facing multiple trial & punishment for the same offense.  Under the HCPA, the federal government may prosecute “[w]hoever … willfully causes … or … attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person” simply if the U.S. Attorney General determines that either:

the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or a prosecution by the United States is in the public interest and necessary to secure substantial justice.

In plain English, if Eric Holder feels Florida’s ultimate punishment of Z is not sufficiently harsh for his taste, he can try Z again in federal court.   Many activists feel this is justifiable, to make up for the “long history in this country, where African-Americans are victims, and state authorities failed to act in a timely and appropriate manner ….”

Additionally, the HCPA seems to punish hatred/bias in isolation.  A main defense of bias crime statutes is that they punish the hate only after it has been manifested in a criminal act.  Z has yet to even be charged with a crime, yet the DOJ is ramping up to prosecute him.  DOJ’s case against Z rests on two elements, and two alone:

  1. M’s skin color was different than Z’s skin color;
  2. Z allegedly uttered a word.

Even if Z did say “coon”  — even if saying “coon” is indicative of his hatred of blacks —  does that merit a life sentence?  The HCPA says it does.  Were Z to be acquitted of all charges in Florida, many believe he still deserves to spend the rest of his days in a federal penitentiary.

Finally, although the Shepard Act contains language assuring that “[n]othing in this Act shall be construed to prohibit any constitutionally protected speech”,  its sanctioning of extremely harsh penalties, based entirely on what a person says, nevertheless creates a Chilling Effect on free speech.

Z, along with every citizen, has a 1st Amendment right to say “coon” or anything they like, however “distasteful and repugnant”.  We also have a right to hate certain groups and to express that sentiment in public (cf. Snyder v. Phelps)  But if certain words are enough to send anyone to prison, no one can ever feel safe saying those words.  Like all hate crime laws, one unavoidable side effect of the HCPA is a gross infringement of our 1st Amendment rights.


The Constitution Trampled Underfoot

The furor over the incident in Sanford, FL is but the latest example of a clash between increasingly polarized philosophical camps.  In their angry scrum to define the narratives that influence both public opinion and public policy, the combatants are trampling our Constitution, and our civil liberties contained therein. The polemics need to end, and the rule of law restored.

(c) 2012 by True Liberal Nexus.  All rights reserved.

7 Comments | Constitutional Law, Equality, Proglodytes, race card, Racism | Tagged: , , , , , , , , , , , , , , , , , | Permalink
Posted by Matt

The Four Scandals of barack obama — Part 1: Fast and Furious

January 6, 2012

As obama’s perpetual campaign kicks into high gear, four potential scandals loom on the horizon that may well derail his reelection hopes and, in a just world, lead to impeachment.

As the most corrupt president since Richard Nixon, it’s no surprise that obama and his administration are neck-deep in scandal.  What’s astonishing is how this Chicago thug has gotten away scot-free for so long.  Yet obama’s decades’ long crime spree may be nearing an end.  This year, ongoing investigations, led primarily by Congressman Darrell Issa and Senator Chuck Grassley, promise to turn Fast and Furious, Lightsquared, Solyndra, and SIGA into household names for Americans, and into “Watergates” for obama.

Scandal # 1 — Fast and Furious

Background

On December 14, 2010, Brian Terry, a federal Customs and Border Protection agent, was shot and killed while battling Mexican drug runners.  It turned out that two of the assault rifles used in the shoot-out had made their way into the hands of the gangsters as part of a Bureau of Alcohol, Tobacco and Firearms (“ATF”) operation known ludicrously as “Fast and Furious” (“F&F”).  Not to be confused with the Vin Diesel franchise, F&F attempted to trace gun purchases back to Mexican drug cartel kingpins by letting guns “walk across the border.”  A lot of guns.  Two thousand guns.  Dealers along the border were told by ATF to ignore background checks and sell weapons to known criminals.

The gun dealers’ reservations about this scheme are on record.  The ATF agents’ reservations  are on record.  And, indeed, it was a stupid plan, with too many guns delivered into the hands of vicious criminals. It sparked unprecedented levels of drug running violence, and it got Brian Terry killed.

The Plot Thickens

But it gets worse.

On February 4, 2011, in a letter to Grassley, Assistant Attorney General Ron Weich wrote

The allegation … that ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them to Mexico — is false… ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.

When summoned before Congress on May 3rd, 2011, AG Eric Holder insisted

I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks.

In his June 15, 2011 testimony before Congress, Weich continued to insist that  “[t]he Attorney General … has taken very seriously allegations that firearms … were intentionally allowed “to walk” into Mexico,” had ordered an internal investigation into the matter, and “also has reiterated to Department law enforcement personnel that they are not knowingly to allow any firearms to be illegally transported into Mexico for any reason.”

Too bad for John Mitchell Eric Holder that his subpoenaed emails reveal he’d been receiving weekly updates on F&F since at least July 5th, 2010. Eric, when an AG to perjures himself, it’s not just embarrassing, it’s a felony.

The White House Connection

Last September, Issa & Grassley announced they were expanding their investigation to include three White House staffers, including a Special Assistant to The President, who had been “provided regular updates” on F&F “as early as Summer of 2010.”

The White House swears they were merely “briefed on the toplines”; that no one ever knew “about the investigative tactics being used in the operation, let alone any decision to let guns walk.”  The name “Fast and Furious” was never even mentioned, the White House noted, until after the investigations began.

Yet these updates did speak of a “GRIT Surge Phoenix,” (Gun Runner Impact Teams), and noted the many ATF agents temporarily transferred to work on “firearms trafficking investigations with direct links to Mexican” cartels.

What Lies Ahead

F&F guns have now been linked to eleven other crimes.  The regional ATF chief who ran F&F was sacked, then the director of ATF was forced to resign.

The New York Times revealed last month that undercover DEA agents were involved in smuggling transport millions of dollars in cash across the border in a related “money-walking” scheme aimed at studying and disrupting drug trafficking routes.  And now it seems that at least some of the “straw” buyers in F&F were paid FBI informants.

Several GOP congressmen are calling for a special counsel to determine whether Holder perjured himself.  Over fifty have signed a letter asking Holder to resign.  The lame excuses of Holder and the White House, to the effect of ‘oh, that was a different gun-walking operation we were discussing in those emails’, doesn’t help them.

Expect Issa & Grassely to make the public flaying of Holder long and painful, eventually forcing Holder to resign or face perjury charges.  Many believe obama was also “complicit” in F&F, but Holder will likely fall on his sword rather than rat on the godfather of his crime family betray his president.


Up Next — Lightsquared.


(c) 2012 by True Liberal Nexus.  All rights reserved.

7 Comments | barack obama the deceiver, Corruption, Democratic ineptitude | Tagged: , , , , , , , | Permalink
Posted by Matt