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

Constitutional Refresher Course

October 21, 2010

In yet another bizarre, embarrassing moment, Tea Party poster child, Chrissie O’Donnell, brought gasps and chuckles to the audience during a debate at a law school by claiming the First Amendment says nothing about separation of church and state.  But don’t pile on Chrissie, folks — every TP candidate thinks this is so.

The TP is a strange fusing of christian fundamentalists and libertarian anarchists, followed meekly by a host of criminally uninformed voters. One of its key planks is a pledge to adhere closely to the US Constitution — an odd desire for people whose views and aims conflict so fundamentally with that document.  They have a work-around to that conflict — wildly misinterpret certain sections, then pretend the rest doesn’t even exist.

For the christian fundamentalist, that literal believer in a bible chock full of glaring contradictions and falsehoods, ‘creative reading’ is second nature.  For the libertarian, living in a delusional world where the US economy was humming along perfectly until wrecked by the New Deal, ignoring facts is child’s play.  The TP version is less a competing interpretation of our nation’s highest law, than a Hollywood-esque “re-imagining” bearing scant resemblance to the original.

Even were their comprehension of the Constitution accurate, the TPers’ call for a “traditional, strict interpretation” has not been seriously considered for over two centuries. The immensely influential chief justice, John Marshall, deemed that the Constitution was “intended to endure for ages to come, to be adapted to various crises of human affairs.”  It was Marshall (in Marbury v. Madison, 1803) who codified the Founding Fathers’ intention to provide for judicial review.  To the Judiciary has been given the exclusive role of interpreting the Constitution.  And for two centuries, the plethora of decisions handed down by Supreme Courts have yielded remarkably consistent interpretations, none of which look anything at all like those TP re-imaginings.  (That hackneyed right-wing complaint over “activist judges” is nothing but frustration at the proper role of the judiciary as established in Marbury.)

While it’s a waste of time to talk reason to the O’Donnell and her fellow delusionals, for the benefit of those confused by the TP’s fanciful re-imagining of the Constitution, here’s a little refresher course.


Separation of Church and State

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” — Amendment I

O’Donnell is technically correct: the actual words “separation of church and state” never appear in the first amendment, nor anywhere, in the Constitution.  That phrase came from contemporary statements by Jefferson and Madison, who both rejoiced that the Bill of Rights firmly established “a permanent wall of separation,” reflecting the universal desire of the Founding Fathers and the American people. They were intensely concerned that their new nation avoid the fights over state religion and consequent persecutions, tyranny, and civil wars that had devastated England and Europe for centuries.

As confirmation of this well-documented intent, over twenty major Supreme Court decisions have resoundedly confirmed the Constitution’s separation of church and state.  In response, O’Donnell and friends can offer but a flimsy, grammarian sophistry.  (TPM to Chrissie: the words “Bill of Rights” aren’t even in the The Bill of Rights.)  Interestingly, while TPers are quick to claim the First Amendment does not say church & state should be separate, they never explain what it supposedly does say.


The Right to Keep and Bear Arms

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  — Amendment II

If sheer volume of words is a guide, the Second Amendment is by far the TP’s favorite section of the Constitution.  They should be glad that a truly strict interpretation has not not been applied.  Per 18th century syntax, that opening clause grants one the right to keep and bear arms only as a member of a well regulated militia — and a dozen skinheads shooting cans in Idaho is not what the Founding Fathers had in mind.

Written by some former minutemen, the Second Amendment has not aged well.  Our present day militia is called the National Guard.  Forced to adapt this amendment to modern times, the courts have chosen an exceedingly broad interpretation, granting the government powers based on the “well-regulated” part (shotgun? yes; flamethrower? no), while generously ignoring the militia membership requirement for citizens.  The interpretive pedant could also point out that, strictly, there’s nothing about protecting one’s right to keep and wear armor.


Unconstitutionality of The Federal income Tax

TPers’ aversion to taxation exceeds that of the Wicked Witch of the West to water buckets.  With increasing brazenness, they matter-of-factly state that the federal income tax is unconstitutional.

Now, considering its import and broad scope, the Constitution is a surprisingly short document.  So it seems a bit sloppy for the TPers to have missed Article 1, Section 8, which states:

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…. “

and then goes on to give a long list, known as the enumerated powers, of all the things Congress can do, then finishes by further granting Congress power “to make all Laws necessary and proper for carrying into execution the foregoing Powers….” Stricties claim this is a narrow permission list.  But beginning with Marshall, every Supreme Court has confirmed that the seventeen clauses of wide-ranging enumerated powers permit Congress considerable “discretion with respect to means … to enable that body to perform the high duties assigned to it in the manner most beneficial to the people.”

If Art I, Sec 8 was not convincing enough, Amendment XVI, passed in 1913, puts the taxation question to rest:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived….”

There are even those who insist the USPS is unconstitutional, perhaps based on the obscure wording of this Art 1, Sec 8 clause:

“The Congress shall have Power … [t]o establish Post Offices and post Roads….”

Ah!  But the TP has found a way to get around the enumerated powers, with a trick last employed by the Confederacy.


State’s Rights

TPers are gaga for States’ Rights — the concept that ultimate sovereignty lies not with the United States, but rather with each individual state.  As proof, they cite Amendment X:

“The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the People.”

The Tenth Amendment, they (O’Donnell, apparently, excepted) argue, negates Art 1 Sec 8, leaving the Federal Government with almost no enumerated powers, meaning nearly every federal law ever passed can be ignored.  But the Supreme Court ( United States v. Sprague, 1931) found that the Tenth amendment “added nothing to the instrument as originally ratified.”

It defies credulity to imagine the Founding Fathers carefully codifying their highest ideals into federal law, only to immediately add an amendment that permitted lesser jurisdictions to ignore those ideals —  thus undermining majority rule and rendering the federal democracy non-functional.


The Party of Nullify

Also known as Nullification, this principle was first proposed during the late 1820’s, when Georgia wished to circumvent Federal Indian treaties so they could to drive the remaining Indians off their land.  The Supreme Court ruled (albeit too late for the Indians) against Georgia.

In 1832, South Carolina’s legislature, claiming State’s Rights to ignore federal tariffs designed to help (largely Northern) industry, passed a resolution to secede if the tariffs were not abolished. In response, President Jackson sternly declared

“the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”

The Palmetto state claimed the right to Nullify again in 1860 over another issue.

Today, TPers turn to Nullification as cover to reject any federal statute they don’t care for.  Not just “obamacare”, but also women’s choice, gay equality, social security numbers, and, as always, those evil taxes.  When a TP candidate mentions the Tenth Amendment, it’s nothing less than a coded threat to secede.


“Read Carefully Before Operating”

In retrospect, TPers should rethink their professed love for the Constitution.  Their vision of America is clearly at odds with that of its authors.  Still, had the TPers bothered to either read the Constitution online, download it, or ask their buddies at the Heritage Foundation to send them a free copy, they’d have discovered a nifty way to rewrite the Constitution to their liking — the simple how-to instructions are laid out right there in Article V.  Maybe getting two-thirds of fellow Americans to agree with their crack-pot vision seemed a little daunting. So instead, TPers have chosen to simply ignore the law of the land.

For a centuries-old, hashed-out compromise, the US Constitution was written with prodigious clarity and amazing foresight.  It was never perfect, but frequent revision and reasoned interpretation has allowed it to keep up fairly well with developments. It’s the user’s manual thoughtfully left by the Founding Fathers in the glove compartment of our nation.  Anyone seeking to operate the machinery of government should first thoroughly familiarize themselves with it.


(c) 2010 by ‘tamerlane.’  All Rights reserved.


26 Comments | Elections, tea party | Tagged: , , , , , , , | Permalink
Posted by Matt