The Pulpit Bully

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 22^nd 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 5^th 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.”

Our Amazingly Elastic Commerce Clause

In 1807 Robert Fulton built the first working steamboat. Because his partner, Robert Livingston, was a member of a prominent New York family, the pair was able to get its state legislature to grant their company a lucrative monopoly to operate in New York waters. In time they licensed Aaron Ogden to operate under their monopoly and by 1812 a steamboat fleet of six plied the waters over which New York claimed jurisdiction.

The success of the venture did not escape notice of potential competitors, one of whom was Thomas Gibbons of New Jersey. Gibbons obtained a license from the US Congress under the Coasting Act of 1793 to put a competing steamboat on a run between New York City and Elizabethtown, New Jersey.

Ogden sued in the New York Chancery Court, contending that state laws governing interstate commerce had “concurrent” power with the US Congress and asked that his monopoly be upheld. When that Court complied and issued an injunction restricting Gibbons from operating in waters under the jurisdiction of New York, Gibbons appealed to the US Supreme Court.

The year was 1824. Gibbons v Ogden gave the Supreme Court its first case challenging the Commerce Clause provision of enumerated powers in Article I, Section 8 of the Constitution:

“[Congress shall have Power] … to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”

Gibbons' lawyer, Daniel Webster, (yes, that Daniel Webster) argued that Congress had “exclusive” (i.e. not concurrent) power over interstate commerce nationally under Article I, and that to conclude otherwise could result in contradictory, and thus confusing, federal and state regulations.

Under Chief Justice John Marshall, the Court had to decide the Article I meaning of “to regulate,” “commerce,” and “among the several states” in the context of this case as set forth in Clause 3 of the enumerated powers. After deliberating, the Court decided that the power “to regulate commerce” was exclusive with Congress. It further decided that “commerce” included not only the trade transaction but also navigation, which meant the steamboats as well as their passengers and cargos were subject to federal regulations. And it decided that “among the several states” meant the right to regulate commerce when it crosses the border of one state and went into the interior of another.

The decision of the case for Gibbons on these merits was a breathtaking expansion of Congressional power. It was also a breathtaking expansion of the exegetical powers of the Supreme Court to divine the meaning of the Constitution, then 37 years old, when most of its authors were gone.

Today appeals to the Constitution are not argued in terms of the meaning or intent of the Constitution’s Framers or the language they used. Rather they are argued on the decisions of precedent cases – the perverted principle of stare decisis – whose justification as precedent is nowhere found in the Founder’s papers or letters. For all intents, precedent case decisions have replaced the Constitution as the standard for legality. And predictably, by interpreting interpretations of the Constitution, rather than interpreting the Constitution itself, each generation, loosed from an absolute Constitutional reference, finds new rights and prohibitions never before discovered.

The original meaning and intent of the Framers is an issue, of course, only if our Courts and Congress profess commitment to a written Constitution and feel some compunction to be bound to its original meaning. Ghastly judicial interpretations of its Necessary and Proper provision and the Commerce Clause provision through the years suggest otherwise. There are four, and occasionally five, members of the Court who believe this country and its lawmakers are not lawfully bound to a vision held by the 55 white men who met in Philadelphia 224 summers ago.

Perhaps that explains why the outgoing 111th Congress distinguished itself by being unmatched as the most constitutionally illiterate lawmakers since the first Congress met in 1789. Public statements made by some of them suggest they couldn’t pass a high school civics class. In a television interview, one lawmaker justified the Constitutional authority for ObamaCare as the “good and necessary” rule. Having sworn to uphold the Constitution, their ignorance of it was both outrageous and embarrassing.

Perhaps that also explains why Representative Pete Stark (D-CA) could confidently say, "The federal government can do most anything in this country." Congress surely did so in the passage of ObamaCare with its constitutionally illegal mandate requiring every citizen to buy health insurance which complies with federal specifications. Since there was no debate on the mandate’s constitutionality under the Commerce Clause or the Necessary and Proper provisions, it’s apparent that constitutionality was not an issue to these “lawmakers.”

In his book of essays on political thought, Here the People Rule, author Edward Banfield laments that – perhaps inevitably – “[t]he ink was not yet dry on the Constitution when its revision began." Almost from its Constitutional inception, Congress began pushing the boundaries beyond the limited government the Framers thought they were giving the descendants of those who had lived under the tyranny of George III.

Banfield argues that the attempt to limit the power of those who govern now seems a flawed objective, doomed to failure from the very beginning:

“Nothing of importance can be done to stop the spread of federal power, let alone to restore something like the division of powers agreed upon by the framers of the Constitution. The reason lies in human nature: men cannot be relied upon voluntarily to abide by their agreements, including those upon which their political order depends. There is an antagonism, amounting to an incompatibility, between popular government – meaning government in accordance with the will of the people – and the maintenance of limits on the sphere of government.”

It is impossible today to return government, particularly federal government, to its original Constitutional design. To do so would require overturning the excesses of the New Deal, the Great Society, and the over-reaching network of federal regulation that invades the most intimate liberties of free society. But there is always hope, however Sisyphean that hope might seem, that a free society, in addition to its narcissistic “pursuit of happiness,” so passionately defended by Jefferson, will learn that it must also keep a watchful eye on the government which threatens its happiness – something “We the People” haven’t done well in the past 75 years. The Americans of the 1780s were so suspicious of government that they felt it an act of citizenship to be informed on where their government was taking them. Should the present generation be less informed? More trusting?

Should we “ordinary” citizens care what power the Constitution granted to Congress with the clause, "The Congress shall have Power... to regulate Commerce ... among the several States?" The ObamaCare mandate claims authority under this provision. But unlike other Commerce Clause cases, no part of ObamaCare is about regulating the commerce of the healthcare system. It is about fundamentally changing the delivery and access to healthcare in America.

The Constitutional origin for the Commerce Clause is this: as long as the colonies were part of the British Empire, trade within the colonies and trade between the colonies and the rest of the world were regulated by London. With the revolution and subsequent independence, no governing American entity existed to fill the vacuum of government and regulation. The closest thing to government was found in the Articles of Confederation under which the Continental Congress had functioned before and during the war. The Continental Congress consisted of representatives from each of the colonies. There was no upper and lower house, no executive, and no judiciary.

The post-war absence of a central government caused the colonies to begin acting in their self-interests, which included, among other things, passing trade barriers between the states. Each barrier motivated retaliatory barriers to be passed by other states. Commercial gridlock prevailed, which caused the domestic and international economy of the colonies to begin failing. It also made the colonies vulnerable to economic (and military) exploitation from other nations.

These were the reasons a Constitutional Convention was called to meet in Philadelphia in the summer of 1787, and the main agenda item was to amend the Articles of Confederation so that states would stop treating each other as hostile nations. However, the Virginia delegation arrived in Philadelphia and began selling its plan to replace the Articles (sometimes referred to as the first Constitution) with a new Constitution and a totally different governance system. Because the colonies were jealous of their individual independence and were deeply suspicious of each other, this was no easy sell. The Constitutional Convention was forced to remain in session from May to September debating the differences in their vision for the proposed central government. Meetings were always secret, meaning none but state delegates were allowed in and no one was to record or disclose the proceedings. Of course, we now know that Madison kept detailed notes, which is the only way we know today who said what. And what we know is that considerable horse trading went on to protect the rights of the states from an intrusive federal government.

When the Constitutional convention broke up in September 1787, the sales job to the states began. The Constitution was only a proposal at this point. Ratifications took place in state conventions that lasted for periods that roughly correlated with each state’s resistance to the new government. The sale to the states was not easy to make. The pro-constitution Federalist Papers and anti-constitution Anti-Federalist Papers began their publication in October 1787 – almost concurrently with the release of the Constitution to the states for ratification. A Bill of Rights limiting the federal power and protecting individual liberty had to be tacked on to the Constitution in 1789 to grease the skids for its approval

Nine of the 13 colonies had to ratify the Constitution for it to become the law of the land. If nine did ratify, there was danger that the remaining would not join their union and would continue as independent colonies. Delaware was the first to ratify on December 7, 1787 and Rhode Island was the 13th and last colony to ratify on May 29, 1790. The ninth colony, New Hampshire, ratified on June 21, 1788 – almost a year after the Constitutional Convention ended. A colony became one of the United States when it ratified.

History makes clear that neither the Constitution nor the new Republic rushed into open arms. Those who did embrace them did so with caution, if not distrust. Knowing the temper of their fellow citizens, the Framers of the Constitution established the enumerated powers in the narrowest terms, if for no other reason than to get them accepted by the populace.

I haven’t the space in this posting to exegete each of the three significant terms in the Commerce Clause, but others have, notably Randy Barnett and Robert Bork. Their works can be found on the Internet. Suffice it, then, to say that it is clear the Framers used the word “commerce” to mean trade – buying and selling – and only trade. The problem they were trying to solve was to open trade between the states by preventing states from imposing anti-trade tariffs that were strangling the economy.

Here is what Madison said in Federalist 42 during the ratification period:

“The defect of power in the existing [Articles of] Confederacy to regulate the commerce between its several members, is … clearly pointed out by experience … it must be foreseen that ways would be found out to load the articles of import and export, during the passage through [state] jurisdiction, with duties which would fall on the makers … and the consumers … We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”

That the Commerce Clause gave Congress the power to regulate "buying and selling" of goods in interstate commerce but not their manufacture and not agriculture is supported by other contemporary definitions of "commerce" as well as the purpose behind the Clause.

As Barnett has noted, in none of the 63 appearances in the Federalist Papers of the term "commerce" is it ever used to unambiguously refer to any activity beyond trade or exchange. It was never used to describe “any gainful activity” as modern Supreme Court decisions have allowed. The Framers of the Constitution meant for the Commerce Clause to be limited to the buy/sell transaction, specifically excluding manufacturing, agriculture, and mining – and in today’s modern economy, healthcare.

What did the framers mean by “regulate” in the context of regulating commerce? In the vernacular of that day it meant pretty much what it means today: “if you want to do something, here is how you must do it.” Thus it seems logical that if the Framers were asked, they would have said “regulate” also included the right to prohibit when the prohibited thing interfered with the ability to regulate.

The Framers gave Congress the authority to regulate only activity. It defies imagination that they ever intended Congress to have the power to regulate inactivity – i.e. fining a person (regulation) who fails (inactivity) to buy health insurance as is envisioned in the ObamaCare mandate.

Finally, what did the Framers mean by “among the several states” in the context of regulating commerce? Since the purpose of the Commerce Clause was to prevent the interference of trade between states, which had been impossible under the Articles of Confederation, it seems clear that trade would have to cross the boundary of one state and enter at least one other state to give Congress the authority to regulate it. It therefore does not grant Congress the authority to regulate trade that occurs only within a state – intrastate trade. Since almost all healthcare is bought and sold within a state, Congress does not have authority to regulate it under the Commerce Clause. Yet that is precisely what ObamaCare intends to do.

In the Progressive Era of this country from the late 1880s through the 1920s, government hewed to a narrow view of the Commerce Clause. Beginning with the 1895 case of United States v E.C. Knight and up to the 1936 case of Carter v Carter Coal, the Supreme Court drew a distinction between "production" – such as manufacturing, agriculture, or mining – and “commerce" or buying and selling the things produced. These Courts never interpreted commerce as gainful activity and never allowed Congressional regulation of intrastate commerce.

This restricted the power of Congress to regulate the entire US economy. Not surprisingly, those advocating that Congress should be able to control anything, chief among whom was Franklin Delano Roosevelt, grew frustrated. Following his lead, liberals criticized the Court for failing to acknowledge that the meaning of the Constitution must evolve to meet changing circumstance. Roosevelt’s attempts to “pack the Court” by expanding it beyond nine members initially met with a disastrous backlash and political losses. But the convenient deaths of several Court members allowed him to replace the vacancies with men of his mind and the radical expansion of the meaning of “commerce” began.

On the heels of the most constitutionally illiterate Congress, the 112th Congress adopted House rules this week that require every bill to cite the Constitutional provision authorizing it. No doubt most will cite the amazingly elastic Commerce Clause or the even more expandable General Welfare clause. But it’s a start. Maybe it will serve the House, if not ultimately the Senate, with the quaint reminder that the only basis for law is the Constitution as it was written.