The Constitutional Law Professor Who Doesn’t Know The Constitution

“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.” — Chief Justice John Marshall, Marbury v. Madison, 1803

Before beginning this blog post I want to share a video. The Video shows Barack Obama’s retort to the Supreme Court Justices with comments by Greta Van Susteren of Fox News and Senator John Kyl of Arizona. The picture quality of the YouTube video is low, but the audio is the important part. For a better video click here for the News Busters video of the same report.

Barack Obama made his comments on the “unelected officials” of the Supreme Court on Monday, April 2, 2012 on the White House Rose Garden flanked by the leaders of Canada and Mexico. I need to say nothing more about his decorum and class.

For the past four years we have heard what a brilliant constitutional scholar Barack Obama is. We have been told by the left-wing media that as a graduate of Harvard Law School, editor of the Harvard Law Review and constitutional lecturer at the University of Chicago Barack Obama is the most brilliant man to occupy the White House — eclipsing presidents such as Jefferson, Madison, and Lincoln.

In listening to Obama’s remarks and cautions to the justices I must assume that on the day his constitutional class cover the 1803 case of Marbury v. Madison and establishment of the doctrine of Judicial Review he must have been sick. If Obama had every walked over the Supreme Court building in Washington, D.C. he might have noticed an inscription carved into the marble walls stating; “It is emphatically the province and duty of the judicial department to say what the law is.” Perhaps he missed that one too.

Before continuing I would like to review the case of Marbury v Madison a bit for those of us who heard a passing reference in our high school history class, but like me were too bored to pay much attention to it.

The election of Thomas Jefferson as the third President of the United States is often called the “Revolution of 1800,” because it marked the first peaceful transfer of power from one political party to another. Despite its uniquely pacific character, the election’s aftermath was marked by partisan rancor. The day before Jefferson took office, President John Adams commissioned fifty-eight Federalist judges under the color of the Judicial Act of 1789. Upon assuming office Jefferson ordered his Secretary of State, James Madison, to withhold their commissions. One of them, William Marbury, brought a case that eventually reached the Supreme Court, where Chief Justice John Marshall wrote an opinion that established the power of judicial review and the confirmation of the separation powers insisted by The Constitution.

In his published decision Chief Justice Marshall stated:

“The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments. The government of the United States is of the latter description. 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 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.”

Here Marshall is addressing the three distinct and separate branches of the United States Government enumerated in the Constitution. Marshall goes on to define the duties of the Supreme Court as defined by Article III, Sections 1 and 2 of the Constitution:

Section 1: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.”

Marshall then addresses the constitutional duty of the court when it comes to laws passed by the legislature:

“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 conformably to the law, disregarding the constitution; or conformably 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.”

Marshall Concludes:

“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?

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.”

The Court’s decision overturned the clause granting the Supreme Court the power to issue writs of mandamus outside its appellate jurisdiction was declared unconstitutional by Marbury v. Madison 5 U.S. 137 (1803), one of the seminal cases in American law. Thus, the Judiciary Act of 1789 was the first act of Congress to be partially invalidated by the Supreme Court.

In a highly combative salvo, Obama also staunchly defended the anchor of the law -- a requirement that all Americans buy health insurance — as key to giving millions of people access to treatment for the first time.

"Ultimately, I am 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," Obama said.

Pointed comments from Supreme Court justices last week during three days of compelling hearings have convinced many commentators that the court, expected to rule in June, will declare the law, dubbed ObamaCare, unconstitutional.

Such a move would electrify the White House race, puncture Obama's claims to be a reformer in the grand political tradition, and throw the US health care industry into chaos.

Obama noted that for years, conservatives had been arguing that the "unelected" Supreme Court should not adopt an activist approach by making rather than interpreting law, and held up the health legislation as an example. If Obama is constitutional scholar he and the media claim him to be his curriculum vitae is a fraud or he is an outright liar.

Obama also argued there was a "human element" to the health care battle, as well as legal and political dimensions.

He said that without the law, passed after a fierce battle with Republicans in 2010, several million children would not have health care, and millions more adults with pre-existing conditions would also be deprived of treatment.

Opponents of the health care law argue that the government has overreached its powers by requiring all Americans to purchase health insurance.

But supporters say that the government is within its rights to regulate the health industry as it has the power to oversee commerce across state borders.

Without the mandate, they say, the costs of insuring an extra 32 million Americans would be prohibitive to the private health insurance industry.

Judge Andrew P. Napolitano, a libertarian commentator on the Fox News Channel wrote:

“Earlier this week, President Obama took a cheap shot at the Supreme Court by suggesting that because its members are “unelected” they are somehow without authority to invalidate unconstitutional legislation. This is hardly a sentiment that should come from anyone sworn to uphold the Constitution, much less a public servant who is a lawyer, much less a person who once taught constitutional law at one of the nation’s best law schools.

The whole purpose of a life-tenured, unelected, independent judiciary is to be anti-democratic; to preserve life, liberty, and property from the tyranny of the majority. Without such a judiciary, nothing but brute force would protect us from a Congress that recognized no limits on its authority. (See Madison’s Federalist Paper No. 10)

“Suppose that Congress, over the president’s veto, declared Joe Biden insane and removed him from office, or directed that Mrs. Obama lose custody of her children because she sent one of her daughters on a foreign trip without either parent, or that the First Amendment does not apply to those who hate the Chicago Cubs? Wouldn’t the president expect that “an unelected group of people” in black robes would interfere with those actions?

Has he actually forgotten that an unelected group of people overturned segregated schools which was the beginning of the end of Jim Crow laws, ordered the government to try or to free people it has arrested, prevented the prosecution of unpopular speech, invalidated the federal regulation of guns near schools, and ordered a president who thought he was above the law to turn over subpoenaed tapes to a federal district court?

The Supreme Court firmly established in Marbury v. Madison in 1803 that government behavior that is repugnant to the Constitution is not valid, and it is the duty of the courts to make that determination and to invalidate such behavior. This is called “judicial review:” It is the power of the courts to review the acts of the other branches of the federal government, and to review the laws of the states, and to void them when they exceed the confines of the Constitution. No serious legal scholar has questioned this power in the past 175 years.

The president is entitled to his own opinions, just like everyone else is. He is free to argue and to predict that ObamaCare should and will be upheld. But he cannot seriously suggest, with intellectual honesty, that the Court is without lawful authority to invalidate an act of Congress that the Court determines is repugnant to the Constitution.

Nor can he, with intellectual honesty, issue veiled threats to the Court.

The Court is his equal, as a branch of government. But since 1803, the Court is superior to the president on having the final say as to what the laws and what the Constitution mean; and the president knows that.

This Court, which has no army but does have a rich and unbroken tradition of commanding fidelity from the other branches of the government, cannot be intimidated by him. He can criticize it to his heart’s content; but he cannot lay a glove on the Supreme Court.”

Not since President-elect James Buchanan wrote to U.S. Supreme Court Associate Justice John Catron, asking whether the Dred Scott case would be decided by the U.S. Supreme Court before his inauguration in March 1857 has such an overt act by the chief executive been so blatant in attempting to influence or intimidate a Supreme Court Justice. Buchanan hoped the decision would quell unrest in the country over the slavery issue by issuing a ruling that put the future of slavery beyond the realm of political debate.

Buchanan later successfully pressured Associate Justice Robert Cooper Grier, a Northerner, to join the Southern majority in the Dred Scott decision, to prevent the appearance that the decision was made along sectional lines. By present-day standards, such correspondence would be considered improper ex parte contact with a court. I guess Obama missed this class too. Perhaps he was hung over from the marijuana he was smoking at the time or too busy with his community organizing activities.

Obama said the administration is not spending much time "planning for contingencies" because he doesn't expect the overhaul to be struck down.

The comments follow his remarks a day earlier during a news conference in which he suggested a ruling against the health care overhaul would be tantamount to "judicial activism." He referred to the justices as "unelected" and noted the law had been approved by Congress.

Republicans, though, have accused the president of trying to "intimidate" the court.

Sen. Orrin Hatch, R-Utah, top Republican on the Senate Finance Committee, called it a "fantasy" to think "every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

Rep. Lamar Smith, (R-Texas), told Fox News Radio he was "disappointed" by the president's remarks.

"It is not unprecedented at all for the Supreme Court to declare a law unconstitutional; they do that on a regular basis, so it's not unprecedented at all," he said. "What is unprecedented is for the president of the United States trying to intimidate the Supreme Court."

Who is this president who darkens counsel with ignorant words concerning the balance of power established by the Constitution of the United States?

Monday, by declaring that the "unelected" Supreme Court had better rule in favor of the 2,700-page health care act of 2010, the president of our country revealed not only his hypocrisy, but the extent he will go to in order to preserve the key accomplishment of his administration. He seems fully to intend to intimidate the Court into rubber-stamping the Affordable Care Act of 2010 as constitutional.

First, the hypocrisy.

Who is this man making noise about "unelected" bodies of government?

Isn't this the guy whose unelected 45 czars, innumerable agencies, and other bureaucratic entities have already made Congress a joke and an increasingly paralyzed symbolic rump of its former self? Isn't this the guy whose continual attacks on states like Arizona are making true federalism and state sovereignty a thing of the past? Isn't this the guy who has openly declared he will bypass an elected Congress by means of executive order and unelected entities such as the EPA? Isn't this the man who has just ridiculed the opposition's budget plan as "Social Darwinism," thus once again refusing even to attempt to reach across the aisle to duly elected representatives who happen to be Republicans? Even more importantly, isn't this the president who, by utilization of supra-constitutional entities, has effectively created a substitute government in thrall to the executive branch? Last, isn't this the guy who has shown distaste for the slowness of elected representatives, expressing admiration for and imitating the centrally planned command economy of China?

Yes. That's the same guy.

Now he has the unmitigated gall to target the Supreme Court as an "unelected" body, the members of which were forewarned about any intransigence they might display against the executive branch during his State of the Union speech of 2010. It was at that time President Obama publicly dressed down the sitting judges in front of the entire legislative body, and indeed, the nation, for a ruling he disagreed with. He said:

“With all due deference to separation of powers, last week the supreme court reversed a century of law that I believe will open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections[.] ... I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

As I mentioned above this is not the first time a president of the United States has declared war against the Supreme Court of the United States. Obama is an admirer and imitator of Franklin Delano Roosevelt, whose own tangles with SCOTUS were legendary. FDR attacked the high Court in his fiery "fireside chats," rebuking the Court for not being in tandem with the executive and legislative branches, explaining to the American public why the court was essentially an outgrowth on the body politic because it dared to declare unconstitutional key elements of the Roosevelt agenda in 1935 and 1936. Roosevelt even tried to pack the Supreme Court with justices favorable to his makeover of American society. Impervious to the president's threats, the court still struck down eight pillars of Roosevelt's New Deal.

But that is precisely what the high Court is supposed to do — namely, strike down unconstitutional legislation. That is one chief reason why the court is an "unelected" body. It was created to stand as an institution that subscribes to the rule of law and to the U.S. Constitution. The members have lifelong tenure in order that the august Court remain the one branch of government which leavens, withstands, and/or tempers the vicissitudes and overreaches of the legislative and executive branches of government. The high court acts as a salutary brake on the schemes of any one particular administration by subjecting legislation and lower court decisions to tempered and, yes, judicious review of the Constitution.

At this time, the Supreme Court is one of the only effective forces remaining as a deterrent to the unbridled overreach of an arrogant and tyrannical executive branch. It is also one of the most respected institutions in the United States. Its rulings still mean something.

President Obama knows the respect in which the court is held, and he has learned from FDR's example. That is why, like FDR, he is seeking to belittle its status by essentially declaring it merely a body of nine unelected officials who are unresponsive to the American people. The prestige of the Court is one reason why the president has gone on the attack from day one and now appears ready to defy the Court's ruling because it is "unelected" and doesn't reflect the will of the people. The battle is now fully enjoined, and a pre-emptive strike has been made.

Now, for perhaps the first time in Obama's administration, the president is looking at potential serious resistance from SCOTUS. The Court might strike down part or all of the president's key legislative victory. In response to that possible eventuality, the president has taken the extraordinary measure of publicly chastising and warning the high Court before it issues its ruling in June of this year. He doubtless is so doing because the justices' questions indicate the unease with which certain members of the court regard the individual mandate as well as other questionable aspects of the law.

For conservatives, the handwriting is on the wall. If the justices cave under the intimidating rebuke of the president and uphold the Affordable Care Act in full or in part, the end of a viable conservative resistance may follow, as the prospect of some 159 controlling, regulation-producing agencies, commissions, and boards governing the most private aspects of our lives essentially would end meaningful representative government and would vitiate the balance of powers as established by our venerable Constitution.

Should Obama be successful in his attempts to intimidate the Supreme Court or attempt to defy a negative ruling on ObamaCare, conservatives face the possibility of being reduced to mere tinkerers on the fringes of a socialist Leviathan that would encompass every aspect of American life. This is as I predicted when he was elected.

Perhaps Obama is beginning the first act of his counterattack for his 2012 re-election campaign. After all is record is dismal and he needs a straw man villain to blame for his failures —the villainous George W. Bush is wearing thin with the electorate.

The storm that erupted Monday when Barack Obama woke up and discovered the Supreme Court of the United States was not only not elected but it could overturn “duly passed” laws, even those passed in the dead of the night by the barest of purchased majorities, has been more than adequately covered on these pages and others by actual lawyers and those who think they are.

I’m pretty sure Obama knows what Marbury v. Madison is, even though on Monday he gave a darned good impression of being a total goober in regards to our Constitution. The simplest explanation is that he knows how the vote went on Friday and is working to change that vote, failing that he is setting the predicate for running against the Supreme Court in November.

According to Supreme Court protocol:

“When oral arguments are concluded, the Justices have to decide the case. They do so at what is known as the Justices’ Conference. Two Conferences are held per week when Court is in session, on Wednesday and Friday afternoons. The Justices vote on cases heard on Mondays and Tuesdays of a given week at their Wednesday afternoon Conference. The Justices vote on cases heard on Wednesday at their Friday afternoon Conference. When Court is not in session, usually only a Friday Conference is held.

According to Supreme Court protocol, only the Justices are allowed in the Conference room at this time—no police, law clerks, secretaries, etc. The Chief Justice calls the session to order and, as a sign of the collegial nature of the institution, all the Justices shake hands. The first order of business, typically, is to discuss the week’s petitions for certiorari, i.e., deciding which cases to accept or reject.

After the petitions for certiorari are dealt with, the Justices begin to discuss the cases that were heard since their last Conference. According to Supreme Court protocol, all Justices have an opportunity to state their views on the case and raise any questions or concerns they may have. Each Justice speaks without interruptions from the others. The Chief Justice makes the first statement, then each Justice speaks in descending order of seniority, ending with the most junior justice—the one who has served on the court for the fewest years.

When each Justice is finished speaking, the Chief Justice casts the first vote, and then each Justice in descending order of seniority does likewise until the most junior justice casts the last vote. After the votes have been tallied, the Chief Justice, or the most senior Justice in the majority if the Chief Justice is in the dissent, assigns a Justice in the majority to write the opinion of the Court. The most senior justice in the dissent can assign a dissenting Justice to write the dissenting opinion.

If a Justice agrees with the outcome of the case, but not the majority’s rationale for it, that Justice may write a concurring opinion. Any Justice may write a separate dissenting opinion. When there is a tie vote, the decision of the lower Court stands. This can happen if, for some reason, any of the nine Justices is not participating in a case (e.g., a seat is vacant or a Justice has had to recuse).”

Based on this we know the three ObamaCare-related cases were voted on at the Friday afternoon conference. What happens Monday? A full-throated attack by the White House and its devoted corps of sycophants on the very idea that the Supreme Court should hear the case. Is this a coincidence? I doubt it.

If it is obvious that the Supreme Court reads election returns, it is also true that they read the newspapers and public opinion polls. It can’t have escaped the notice of even a mediocrity like Sotomayor that 1) this is an election year and 2) Obama’s political fate seems to be closely tied to the outcome of the case. This was the case with Buchanan in the Dred Scott case.

To be clear, it is difficult, if not impossible, to believe that a case of this significance to the reelection campaign of an incumbent president is going to remain secret until June. The stakes are way too high.

The first question is how, if there are no clerks, secretaries, etc., in the conference how would have the president found out about the decision and I think the actual vote? Paradoxically, if there is a leak it is much easier to identify the source than if there were assorted support staff in the room. While support staff would have been the likely suspects they actually have much to lose and little to gain from leaking. If found out, they will lose their job. If not found out their reward will be minor. No fame. No fortune. Just the day-in-day-out knowledge that the person they leaked the information to controls their future. The people who can leak without fear are the justices themselves. If one did leak they are in no danger of losing their job and while some of their colleagues might be miffed they would, if exposed, be the toast of the town in Manhattan and Los Angeles.

(GASP… did I just insinuate a Supreme Court justice might breach the holiest of holies? Remember, my friends, we’re dealing with Democrats here.)

If a leak occurred after Friday’s conference, it is very easy to figure out the single justice with the requisite means, motive, and opportunity.

What I think was afoot Monday was a blast aimed one man — Associate Justice Kennedy, the sometimes referred to by conservatives as the Cowardly Lion of the Court (as in the Wizard of Oz).

If the key conference vote on striking down ObamaCare was 5-4, and that is what many observers are predicting based on the oral arguments, the man with the fifth vote is Anthony Kennedy. In the conference for Planned Parenthood v. Casey, Kennedy had cast the fifth vote that would have gutted Roe v. Wade. At some point during the drafting of the opinion, Kennedy got a case of the vapors and changed his vote thereby upholding Roe and ensuring another 20 million children were aborted. The Administration has probably calculated that it can bring enough heat on Kennedy via its public statements to convince him to change his vote.

And if he doesn’t Obama has declared war on the Supreme Court as a tactic to energize his base.

He sort of began that during the 2010 State of the Union when he simply lied about the Citizens United case. While some have called into question Obama’s wisdom in taking a whack at the Supreme Court to their face on national television as well as this week’s onslaught on a yet officially undecided case, actually it is inspired.

If you’ve ever played/coached/officiated a sport you know that more often than not the high maintenance player or coach can win a battle of wills with the referee. The referee wants to appear fair to the players and spectators. The coach or player wants to win. If you challenge every call against you, you can eventually wear down a referee and get calls in your favor simply because they don’t want the grief and they want to appear unbiased. Taken in total, Obama’s actions resemble those we’d expect from a no-talent version of John McEnroe.

The evidence, to me, seems strong that on Friday the Supreme Court voted 5-4 to toss ObamaCare and the White House knows this to be the case. I certainly hope so. On the other hand based on the questioning of Justice Stevens addressing the overstepping the power of the government in direct response to the Brief of Amicus Curiae filled by the Landmark Legal Foundation it could be 6-3.