ObamaCare... Marbury v. Madison... and Conservatives

Sean Hannity has a unique ability to drive me out of my gourd.

Well... perhaps not "unique" - O'Reilly often provokes me to scream at the TV as do many of the pundits and even straight news reporters at Fox and at various "conservative" media outlets.

(Of course the MSM is even worse... but for now I'm focusing on "conservative" media.)

Take this piling on Obama in reaction to his "warning" that the Supreme Court shouldn't overturn ObamaCare because...

(Well... I'm confident that the type of folks who drop by here at Usually Right are well aware of Obama's rhetorical gambit and the backlash it has provoked. No need to lay the whole thing out here again.)

Anyway... what's driving me nuts is that the "conservatives" are making the wrong point!

Conservatives such as Sean Hannity have apparently suddenly discovered some abiding passion for the defense of judicial supremacy!

Oh, yeah... these clowns are so focused on contrasting themselves with Obama and slamming Obama that they're falling right into Obama's trap by failing to differentiate between valid judicial review and judicial malfeasance!

Folks... you'll hear a lot of talk about "Marbury v. Madison" and the proper powers and authority  of the Supreme Court.

Folks... I suggest you read "Marbury v. Madison" for yourselves. The whole thing. Syllabus and Opinion.

What you'll find is that "Marbury v. Madison" isn't exactly what you've been taught it is nor what it is being described as in the media and even academia today.

Herein lies the problem and baits the trap conservatives are falling into.

Conservatives are so damned eager to oppose Obama at every step that sometimes they don't fully think out the repercussions of their knee-jerk responses.

For example... here we have Sean Hannity and the rest of the conservative "establishment" going on and on about "how dare Obama even question how the Supreme Court rule!"

Well... er... don't we conservatives often question Supreme Court decisions which have been created out of whole cloth and/or issued not in keeping with the clear text and meaning of the Founders and Amendment enacters who have given us our Constitution? 

Don't we conservatively actually go beyond "questioning" and actually denounce High Court rulings which on their face violate rather than defend Constitutional dictates and limitations?

I know I sure as hell do!

What Hannity and the other knee-jerks (or plain jerks if you'd rather) are doing is laying the groundwork for the advocates of a "living, breathing Constitution" (via judicial fiat and not Constitutional Amendment) to point at current misguided conservative rhetoric as evidence that we accept the false premise that the Constitution is simply what a bare majority Justices on the Supreme Court say it is regardless of the propriety of the particular decision!

(And, folks, this Court and future High Courts are likely to continue to come out with large numbers of future decisions which flout rather than adhere to the Constitution as written and intended to be followed. Therefore, Hannity and the others are unilaterally disarming us of our ability to take the high ground by claiming it's not the High Court majority which is "supreme" each time the Court rules, but rather the Constitution!)

Folks... to understand "Marbury v. Madison" and the Court's intent regarding the decision's defense of their prerogatives you really do need  to read the decision. 

(It would obviously help to possess well-developed knowledge of Western philosophy and English and American history - specifically governmental and particularly judicial philosophy - but at a bare minimum... you need to read Marbury v. Madison.)

Contrary to modern misconception, Justice Marshall never for a moment "decided"-  nor did he infer - that "the Constitution is what we on the Supreme Court say it is."

Where the confusion comes in stems from Marshall's clear caution that the Supreme Court must never allow Congress (or the Executive) to subvert the Constitution via unconstitutional law juxtaposed with his reasoning that of course it is the Judiciary which is assigned responsibility by the Constitution to interpret and decide cases of law.

The part of "Marbury v. Madison" that you likely won't hear of (other than by reading it here or reading the decision directly) is where Chief Justice Marshall made quite clear that the High Court itself was under obligation to rule only in accordance with the text and clear meaning (clear meaning at the time of enactment) of the Constitution!

Folks... the High Court is the "interpreter" of the Constitution - not the molder of it... not the changer of it... Justice Marshall knew this and accepted it as the basic tenet of how the High Court and all inferior courts were to operate!

There is simply no doubt that Justice Marshall would be appalled by many of the decisions of High Court majorities which since his time have shredded the very Constitution these Justices were sworn to uphold

My friends... my fellow citizens... we need to take our country back from those who would violate our Constitutional freedoms. It doesn't matter whether we're talking about a rogue president, a rogue Congress, or a rogue Supreme Court.

Right now four out of nine U.S. Supreme Court Justices are widely expected to uphold ObamaCare, and frankly, even most honest liberals will admit that at best these four will cite "Constitutional authority" as a fig leaf rather than as a sincere underpinning for their decisions.

(In other words... these four "liberal" Justices are seen even by their adherents as subscribing to a school of judicial thought that has little to do with abiding by the text and intent of the enacters of the Constitution and its various Amendments and instead everything to do with ideology and their personal policy preferences.)

Of the remaining five Justices...

(*SIGH*)

Justice Kennedy is a wild card. He could go either way. Frankly, my appraisal of him is that he is a man who is willing to ignore or if necessary go against the Constitution in order to arrive at a result (decision) that meets with his personal definition of "what is right." The fact that he often votes with the "conservative" block simply reflects the fact that certain of his personal policy preferences are "conservative."

Chief Justice Roberts? I see him as an "establishment conservative politician" in a black robe. He tends to hang his hat on "precedent" - even while no doubt recognizing it as "bad precedent" - in order to justify whatever decision he ends up making. (And... if Kennedy does vote with Ginsburg, Breyer, Sotomayor, and Kagan, it is quite possible that Roberts will join them as a political gesture of "unity" in a misguided effort to detract from the partisan divide and also as to limit the damage of the ruling via utilizing his status as Chief Justice to assign himself the majority opinion.)

Scalia? I'm fairly confident that Scalia will vote to overturn ObamaCare. That said... Scalia "respects" precedent and he may just convince himself that Wickard provides the precedent "forcing" him to uphold "Congressional authority."

Thomas? He's an originalist. He's a constitutionist. Period. He'll vote to overturn ObamaCare in its entirety.

Alito? He's more likely to echo Thomas... though he does have a bit of "Scalia" in him. (In other words, like Scalia, Alito weighs precedent - though it's not a deal breaker.)

And there you have it, folks.

Oh... just in case reading this "mini-opus" hasn't tired you out... here are some key excerpts from Justice Marshall's opinion in "Marbury v. Madison" that should serve to give you the "short draft" backing up my prior contentions concerning the case and the late Chief Justice:

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The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

If some acts be examinable and others not, there must be some rule of law to guide the Court in the exercise of its jurisdiction.

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited [p177] and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conform[ity] to the law, disregarding the Constitution, or conform[ity] to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions - a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

Why otherwise does it direct the judges to take an oath to support it?

This oath certainly applies in an especial manner to their conduct in their official character.

How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:

I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him?

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.