In the tumultuous election of 1800, John Adams was denied a second term by the election of Thomas Jefferson, our third president. On his way out of the White House, Adams made a number of “midnight” appointments, among them William Marbury to be Justice of the Peace of the (Washington) District of Columbia. His commission was not delivered by the incoming President’s Secretary of State, James Madison.
Marbury filed a writ of mandamus with the Supreme Court in 1803 petitioning it to compel Madison to deliver the commission. Ironically, the Court’s Chief Justice, John Marshall, had been the Secretary of State for Adams and had signed Marbury’s commission.
While the Court agreed with Marbury that he had a right to the commission and that he had a right to remedy under the law, the Court also decided that it had the authority under the Constitution to review the legality of the acts of Congress. (That would have produced a “Wow!” in 1803.) Given its newly asserted authority, the Court decided that Congress could not expand the role of the Court beyond the role enumerated in Article III of the Constitution and therefore the Judiciary Act of 1789 under which Marbury brought his claim was unconstitutional. Marbury’s claim was denied.
Marbury v. Madison was a landmark case which established the right of the Court to judicially review the acts of a co-equal branch of government, the Congress, to assure that its laws conformed to the Constitution. Constraining the power of Congress within its constitutional limits was a big deal in the years before the Civil War when states’ rights were jealously guarded against encroachment by the federal government. Regrettably, it’s no longer a big deal.
In the years since the Civil War, more and more power has shifted from the states to the central government. During the Roosevelt New Deal era in particular, the relevance of the Court and Constitution was severely tested as the Court voided law after law pushed through Congress by Roosevelt. Only because Roosevelt was committed to be President-for-Life, before Death carried him off in its loathsome bosom, was he able to appoint eight of the nine Supreme Court justices and stop their constitutional meddling in his legislative agenda.
With the election of Barack Obama we now have the second coming of Franklin D. Roosevelt, thankfully restrained by the 22nd Amendment which passed after Roosevelt died, but nevertheless possessing the same disdain for the Court and Constitution. Last week, standing between Mexican President Felipe Calderón, chief exporter of aliens to the US, and Canadian Prime Minister Stephen Harper, whose XL pipeline foolishly offered the US a way out of its oil shortage, the reincarnation of Roosevelt warned the Supreme Court not to mess with his ObamaCare law, whose constitutionality had just been argued before it. Speaking without benefit of teleprompter, Obama’s bizarre delivery sounded like words were dropping out of his brain directly on his tongue:
I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.
And I – I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an unelected, uhhh, group of – of people would somehow overturn, uhhh, a duly constituted and – and passed, uh, law. Uh, well, uh, uh, this is a good example. Uhh, and I’m pretty confident that this, – this court will recognize that, uh, and not take that step.
Apparently the smartest man ever to hold the office of the presidency – and former instructor in constitutional law – hasn’t heard of Marbury v. Madison which every first year law student is required to know. Moreover, he hasn’t gotten his facts right – which is not a first for Obama. The claim of “unprecedented” ignores precedent going back to Marbury in 1803. All of the laws that have been totally or partially overturned since then initially became law under “democratically elected” Congresses. Who else would have passed them into law? Undemocratically elected Congresses? Unelected Congresses? The Tooth Fairy maybe?
Memo to Obama: here’s a list of 158 acts of Congress that have been partially or fully voided by the Supreme Court.
The “strong majority” to which Obama referred was a whopping seven votes. Seven! That was in a House that has 435 members and a Democrat party that had a 75-seat majority at the time. Not a single Republican voted for passage, so it had no bipartisan support, but the votes against passage were bipartisan because 68 Democrats voted with the Republicans against passage.
In order to get the bill through the Senate, which had lost its bullet-proof protection against filibusters, procedural chicanery had to be employed by using the rules of reconciliation – something totally unintended to pass legislation that is this sweeping.
Moreover, the majority of the American people opposed ObamaCare when it passed, a majority has opposed it continuously since its passage, and 61% in the most recent polling want it repealed. What do you call a country in which the political elite passes laws opposed by the people, arguably violating our principal governing document in doing it? Isn’t that a dictatorship?
The entire premise of Obama’s ludicrous assertions of “unprecedented” and “strong majority” is swept away by the facts. What could the man have possibly been thinking? Roosevelt was far more popular when he (wrongfully) took on the Court. Obama’s approval percentages have been bouncing around in the 40s for two years.
The day after Obama threw down the gauntlet before the Supreme Court, however, a three-judge panel of the 5th Court of Appeals, which was hearing another case related to ObamaCare, took up Obama’s dare. Judge Jerry Smith, one of the panel, held the benighted view that the Court, the Executive, and the Congress were co-equal branches of government as set forth in that antiquated document called the US Constitution.
The DOJ attorney arguing the government’s case, Dana Kaersvang, seemed taken aback when Judge Smith asked her to explain Obama’s critique of the Court’s hearings on "ObamaCare" and Smith asked if Obama’s remarks challenged the federal courts' power to strike down laws passed by Congress. According to those present, Judge Smith became “very stern,” saying it wasn’t clear whether this president believes such a right exists. In Smith’s words:
I’m referring to statements by the President in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed – he was referring, of course, to ObamaCare – what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the Attorney General and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Smith told Kaersvang that she had 48 hours to submit to the Court a three-page, single-spaced paper defending judicial review and that the homework assignment should “make specific reference” to Obama’s statements. It sure seems like the Court was demanding the equivalent of writing 500 times “I will not misbehave in class.”
Kaersvang, no doubt shaken that never before had The Great One been challenged or held accountable for using the bully pulpit to be a pulpit bully, delivered her term paper on time. It appropriately acknowledged the precedent of Marbury v Madison and the Court’s authority. Unmentioned by Smith or Kaersvang, however, is the historic practice of professional courtesy which restrains people in political leadership from commenting on cases that are currently before the court – something Obama either doesn’t know or respect.
But then this president has never restrained himself from commenting on many things about which wiser men would keep their mouths shut.
You’ll recall Obama butting in, unburdened with any facts about the case, to make televised remarks about the arrest of Harvard professor Henry Louis Gates. Obama’s remarks included calling the Cambridge, Massachusetts police "stupid." The police were investigating a neighbor’s call concerning what appeared to be a break-in. Since the Gates home had been broken into before, it was logical to everyone but Obama that this might be another, especially since the person seeking to enter was throwing his weight against the door. It was nighttime, Gates was uncooperative, and he was warned that his behavior was interfering with a police investigation. Gates is also black. What Obama called stupid would be what the police would have been called if they had not intervened and allowed the house to be robbed.
Then there is the recent tragedy involving the death of Trayvon Martin. Although police work is a local responsibility, Obama again waded in sans the benefits of the facts. He had to be careful, he said, so as not to interfere with a DOJ investigation. Yet the DOJ comment was made before any facts were known that would justify a federal investigation in a local crime Obama continued:
It is absolutely imperative that we investigate every aspect of this. … But my main message is to the parents of Trayvon Martin. You know, if I had a son he’d look like Trayvon. And I think they are right to expect that all of us as Americans are going to take this with the seriousness it deserves and get to the bottom of exactly what happened.
The emerging picture of Trayvon Martin may cause Obama to recant his comments about having a son who looks like Martin or acted like Martin. The cheerful baby-faced photo of him that was initially released to the media was later exposed to have been taken five years earlier. Confronted with this fact, the family and media were compelled to produce a more recent photo which shows a more sullen Trayvon. His rap sheet wasn’t that of a guy who minded his own business. And, of course, a red-faced NBC was caught red-handed by Newsbusters, a conservative media monitoring group, for editing the tape to make the alleged shooter appear to be a racist.
Contrast Obama’s comments on the Gates and Martin cases with this one.
A year ago this month, two British students visiting America got lost and wandered into a black housing project in Sarasota, Florida. James Cooper, 25, and James Kouzaris, 24, had been drinking – too much I might add – when witnesses testified that Shawn Tyson, a 17-year old black teenager told them that he’d seen two white “crackers” walking around in the neighborhood and he intended to rob them.
Confronted by Tyson, Cooper and Kouzaris told him they were lost and had no money and they begged to be let go so they could return home. "Since you ain't got no money, then I have something for your ass," Tyson recounted to a witness, then added that he shot the men several times.
Their bodies were found shirtless on the street with pants pulled down to their thighs. Wallets for both men were in their pants and contained money. The pants of Cooper had a cell phone and camera in the pockets. In other words, this was no robbery. Authorities later found that Kouzaris' blood alcohol level was 0.243 and Cooper's was 0.214 – well past Florida's legal limit for intoxication when driving, which is 0.08. They were too drunk to know the danger they were in.
Tyson sat emotionless when he was sentenced to life in prison last month. Because he was under 18, he was not eligible for the death penalty but his sentence did not permit parole.
Obama, however, made no comment concerning the killing of Cooper and Kouzaris – no call for soul-searching, no charge of stupidity, no sympathy for the victims of this senselessness killing by a ruthless black teenager about the age of Trayvon Martin, no identification with the loss of the parents like, “If I had sons like Cooper and Kouzaris …”
A friend of the murdered students told the UK Daily Telegraph this:
We would like to publicly express our dissatisfaction at the lack of any public or private message of support or condolence from any American governing body or indeed, President Obama himself. Mr. Kouzaris [the father of one of the victims] has written to President Obama on three separate occasions and is yet to even receive the courtesy of a reply. It would perhaps appear that Mr. Obama sees no political value in facilitating such a request or that the lives of two British tourists are not worthy of ten minutes of his time.
Obama is what he seems to despise in American society. He castigates the richest 1% of Americans, yet he is among them. He ridicules the privileged, yet doors were opened for his career that gave him privileged access few others enjoy. He is quick to infer racism in an injustice, yet he behaves like a racist. He criticized Augusta National for excluding women, yet he plays any course he wishes notwithstanding its rules about membership. He mocks the lifestyle excesses of the rich and their corporate jets, yet during his first presidential term he and his wife have partied like Roman emperors (at taxpayer expense) and vacationed using the most expensive plane in the country.
Moreover, Obama seems never to have grasped that he was elected to govern with a light touch, not to rule or to reign. Americans do not need their lives managed – indeed micromanaged – by an insatiable central government that is consuming their wealth faster than they can create it. The Founders correctly understood that whatever problems citizens needed government to solve were best solved locally by the states – i.e. by the government closest to the people.
All of Obama’s blather about the conservative ideology of the Supreme Court which brought about last week’s confrontations ignores that four justices have always been viewed as a slam dunk to uphold ObamaCare. Kagan’s “questions” often sounded as if she was all too familiar with the government’s case. At times she even seemed to be arguing it rather than objectively listening to the evidence. Her prior service as Solicitor General before her appointment to the Court would have caused a better person to recuse herself. Instead her performance in the hearings revealed her to be a political hack rather than a judge of the law.
In most of the cases that come before it, this Court is only one justice away from concerning itself with the enumerated powers of Congress, and then only occasionally. If the Court upholds the argument that ObamaCare is constitutionally within the provisions of the Commerce Clause, there is no limit on what future Congresses can do to the American people and therefore, there is no longer a need for the Constitution that has served, albeit decreasingly, to restrain government for over 220 years.
I predict that ObamaCare will be upheld as constitutional, making the 2012 election the most important election in the history of the Republic. It will likely be our last chance to preserve what Catherine Drinker Bowen aptly called “the miracle at Philadelphia.”
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