The Imperial Presidency

"In Europe, charters of liberty have been granted by power. America has set the example of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness." — James Madison

In the wake of President Obama’s moronic and widely-lampooned comments on judicial review on Monday (April 2. 2012), President Obama offered the following lame (and incorrect) walk back on Wednesday:

On Monday Obama said:

“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 uninelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.”

Putting aside the fact that ObamaCare passed with anything but a “strong majority” of Congress, the concept of judicial review has been established for over 200 years; for a president not to understand this displays shocking ignorance. Not to mention the fact that most of the liberals’ favorite Supreme Court decisions involved overturning laws that were enacted by democratically elected Congresses or legislatures, e.g., Roe v. Wade, Lawrence v. Texas and many more.

So on Wednesday (April 4, 2012), in his appearance before the Associated Press – the ultimate friendly audience – Obama tried to walk back yesterday’s blunder in response to a softball question:

MR. SINGLETON: “Mr. President, you said yesterday that it would be unprecedented for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the Court has done during its entire existence. If the Court were to overturn individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

THE PRESIDENT: “Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress. And so the burden is on those who would overturn a law like this.

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.”

This is, of course, entirely different from what Obama said Monday, but it comes no nearer the truth. First of all, when did ObamaCare become an “economic issue,” a matter of “commerce”? I thought it was all about women’s health care, like Roe v. Wade. Evidently that was a misunderstanding.

But that’s a minor point. Is there any truth to Obama’s claim that the Supreme Court hasn’t invalidated any statutes that are “economic” and relate to “commerce” since Lochner v. New York, which was in 1905? Of course not. To name just a few examples a great deal more recent than 1905, the Court ruled unconstitutional provisions of the Sarbanes-Oxley Act that had permitted only “for cause” removal of members of the Public Company Accounting Oversight Board in 2010; the 1990 Mushroom Promotion, Research and Consumer Information Act in 2001 (this case was actually quite similar to ObamaCare because the Court held unconstitutional provisions that required mushroom growers to contribute to mushroom promotion programs); provisions of the Patent and Plant Variety Remedy Clarification Act, the Trademark Remedy Clarification Act, and the Copyright Remedy Clarification Act in 1992; the Harbor Maintenance Tax Act in 1998; the Transfer Act which authorized the transfer of operating control of Washington National Airport and Dulles International Airport from the Department of Transportation to the Metropolitan Washington Airports Authority in 1991; and many, many more dating back to 1905.

Obama’s bungling on this (which has yet to be called a “gaffe” or more properly “a series of lies” by anyone I’ve yet seen in the media) prompted the Fifth Circuit yesterday to ask a DOJ lawyer who was litigating a case concerning ObamaCare to clarify whether the DOJ was now taking the position that the federal judiciary did not have the power to overturn ObamaCare. Some folks on the left went absolutely apoplectic over this, because it was an unusual event. Mostly, however, that is because most lawyers aren’t cursed with clients who are dumb enough to say, on the news, that the court currently deciding their case has no legitimate authority to do so. As was pointed out at Hot Air, Obama is the head of the DOJ and the Fifth Circuit was entitled to know if Obama’s statements signaled a change in the government’s position during this litigation.

Words and phrases have meaning. While painfully obvious, we are right to reconsider the simple importance of this fact. The late Edwin Newman, noted grammarian and NBC news correspondent, often warned of the devolution of the English language, especially in its Americanized form. His warning was meant to cover not merely the etymological, but also the political and cultural. A language that becomes too malleable, too informal to preserve definitions and distinctiveness can become a tool for cultural decay and political mischief. (This was covered in his book; Strictly Speaking: Will America be the Death of English?). Such is the concern over Barack Obama's recent chastisement of the United States Supreme Court in the aftermath of oral arguments before the court regarding the constitutionality of the Patient Protection and Affordability Act (PPACA), popularized as "ObamaCare."

While I cannot attest to current levels of instruction in American government in public schools today, I can speak with some authority over what I learned as a high school student many years ago. We were taught that among the many features of our American form of government, one that was purposefully provided, even institutionalized, was a separation of powers. The first three articles of the Constitution of the United States provide a tripartite separation of duties and responsibilities designed for the ongoing conduct of the national government and as a bulwark against the concentration of power in one branch. In Article III, Section 2.2, the Constitution clearly states:

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

With this sentence, we see that the Supreme Court is charged with consideration of matters of compliance to “constitutional conformity” of any law passed by Congress and executed by the president as needed. This is the heart of the concept of judicial review. In theory, a lifelong appointed slate of Supreme Court justices, shielded from the potential influence of electoral pressures, can and will determine if legislation does indeed bear constitutional scrutiny. Keep in mind that constitutional conformity does not include the making of new rights within the Constitution — this is “judicial activism.” An activist judiciary is not one that strikes down laws passed by Congress. An activist judiciary is one that strikes down laws passed by Congress for reasons that cannot be fairly said to be contained within the text of the Constitution, or more properly one that invents law from the bench, i.e. Roe v Wade.

Most conservatives were in favor (generally speaking) of the Gramm-Rudman-Hollings Act, which was passed with broad, bipartisan support in both chambers of Congress. When the Supreme Court struck this act down, I don’t recall any conservative accusing the Court of engaging in judicial activism, because the Court’s reason for striking the bill down was firmly rooted in the text of the Constitution. By way of contrast, an excellent example of judicial activism would be virtually every SCOTUS Eighth Amendment decision for the last 65 years. The plain text of the Fifth and Fourteenth Amendments indicate that the government can constitutionally take a person’s life (so long as he or she is afforded due process of law). At the time these amendments were enacted, capital punishment was virtually the uniform punishment for all felonies. Nonetheless, the Supreme Court has taken it upon itself to declare the death penalty unconstitutional for every crime other than murder, despite the fact that neither the text of the constitution nor history compels this result. At one point, the Supreme Court actually declared that the death penalty was unconstitutional, despite the fact that the constitution explicitly provides for the death penalty. This is what is meant by “judicial activism,” not “striking down statutes that were passed by Congress.”

The Fifth Amendment states:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

So, when former University of Chicago Law School lecturer Barack Obama issued veiled warnings against an unfavorable ruling on the PPACA, it came as a disappointment beyond just the political implication. Contrary to popularized recitations of Obama's past activities, he was not a professor of law, in the true academic sense. According to the university's own website, inquiries into Obama's faculty status were answered thusly:

”The Law School has received many media requests about Barack Obama, especially about his status as "Senior Lecturer."

From 1992 until his election to the U.S. Senate in 2004, Barack Obama served as a professor in the Law School. He was a Lecturer from 1992 to 1996. He was a Senior Lecturer from 1996 to 2004, during which time he taught three courses per year. Senior Lecturers are considered to be members of the Law School faculty and are regarded as professors, although not full-time or tenure-track (emphasis added). The title of Senior Lecturer is distinct from the title of Lecturer, which signifies adjunct status. Like Obama, each of the Law School's Senior Lecturers has high-demand careers in politics or public service, which prevent full-time teaching. Several times during his 12 years as a professor in the Law School, Obama was invited to join the faculty in a full-time tenure-track position, but he declined.”

While noteworthy, the distinction is not that important in this context. Apologists will cite Obama's brief guest lecturer stint as his qualification to be a "constitutional scholar," even though there is no paper trail of scholarly books or even published treatises by him in evidence of that assertion. What is important is the lack of understanding of constitutional principles that a full professor, or a lecturer like Obama, demonstrates. As a one-time lecturer at a prestigious law school, the president should have a far better grasp on basics that are understood by high school students. His pronouncements at Monday's White House lawn ceremony confirm either an abject ignorance of the law he supposedly was qualified to teach — and now uphold as chief executive — or they were part and parcel of a long-demonstrated dismissive attitude toward constitutional limits on government. Flanked by visiting heads of governments Felipe Calderón of Mexico and Stephen Harper of Canada, Mr. Obama said:

“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'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 an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step.”

Mr. Obama, therefore, offers us two alternatives regarding his grasp on his role and role of other branches of government. Neither choice presents anything remotely palatable to American citizens who pay attention. There are other problems with Obama's attitude regarding the potential overruling of his supra-constitutional health care mandate, besides his muddling the concepts of "judicial review" versus "judicial activism." He seems to eschew the idea that "an unelected group of people" (i.e., the Supreme Court) should have a say in matters related to his legislative projects. This is an interesting attitude, as he has surrounded himself with a platoon of appointed "czars," people who have not had to endure any oversight or confirmation scrutiny, and has placed them in virtually unfettered positions of policy decision-making. It had been my seemingly simplistic understanding throughout the years that executive policy emanated from cabinet-level departments. These departments, in turn, were headed by presidentially appointed officials who faced the glare of congressional vetting. Obama has chosen to eliminate this process in large part with an insular cabal of unaccountable policy masterminds who are free to operate outside the sunshine of scrutiny. So, while Mr. Obama has a problem with a constitutionally mandated — and vetted — appointed Supreme Court, he has no problem with unelected and unconfirmed apparatchiks who formulate policy that affects every single citizen in this nation. Then again, intellectual honesty is never the strong suit of the statist.

The president's legal theory forms no part of constitutional jurisprudence. He claims no less than that the Supreme Court has no right or power to review the constitutionality of congressional legislation. The president's theory is nowhere approved or mentioned in a single state, federal, or Supreme Court case. It is not once mentioned in the Federalist Papers, a publication explaining the Founders' rationale for the drafting of a new constitution. James Madison did not once mention the theory in notes taken at the Philadelphia Convention. It is not taught at any law school in the United States. It forms no part whatever of American or British jurisprudence. In fact, it is an invention, a legal fiction, and an assault on the Supreme Court's powers of judicial review established by Supreme Court Justice John Marshall in Marbury v. Madison.

The Supreme Court has been nullifying congressional legislation deemed unconstitutional for more than two hundred years. It is, therefore, boldly fallacious to suggest that "unelected Supreme Court justices" are now embarking upon an "unprecedented" usurpation of the Constitution. In fact, it is the people's constitutional right to challenge the constitutionality of congressional legislation. The Supreme Court, the highest authority on constitutional issues, is vested with the power and obligation to determine the constitutionality of legislation challenged by the people.

The president nearly gave away the game during his press conference Monday. After a long soliloquy about the "human element" the justices would be letting down if they ruled against his administration, Obama slipped and almost said he expected the law to be overturned rather than upheld. (He corrected himself mid-sentence.)

"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 claimed. Perhaps he meant "democratic" with a capital “d”. Only Democrats voted for the law and it passed the House by just seven votes despite a three-fifths Democratic majority in that chamber.

According to one careful estimate, the Supreme Court has struck down 53 federal statutes between 1981 and 2005. So in post-Marbury v. Madison America, it wouldn't be exactly "unprecedented." Didn't Linda Greenhouse teach us that "unprecedented" was a word used by people whose legal arguments are without merit?

Obama chided conservative commentators who complained about "judicial activism or a lack of judicial restraint" when "an unelected group of people would somehow overturn a duly constituted and passed law." He concluded: "Well, this is a pretty good example."

Supporters of the president have been laying the groundwork for this reaction ever since it became clear that the Supreme Court wasn't simply going to rubber stamp the administration’s request for untrammeled federal power. Greenhouse insisted the constitutional challenge was baseless but sighed "the justices will do what they will do." Paul Krugman asserted “while most legal experts seem to think that the case for striking the law down is very weak, these days everything is political.”

This has nothing to do with the law, they chant. It is simply the "wingnuts" on the Supreme Court deciding to impose the Tea Party's vision of the Constitution on America. (Yet if the law is upheld, the same people will celebrate the Court as a great and powerful body whose wise rulings should go unquestioned, with the "wingnut" who cast the deciding vote venerated as the preeminent jurist of modern times.)

What is at stake here isn't the Tea Party's Constitution. It is the Constitution written by the Founding Fathers and ratified by the American people. It is the idea that the federal government derives its power from the consent of the governed, consent given not merely every two to six years at the ballot box but when a large majority of the states and the people expressly delegate power to the central government.

Nowhere in the confident declarations of the health care law's constitutionality do we see any evidence that the people who wrote or ratified the Constitution intended to give the federal government these powers. More than half the states in the country have joined in the constitutional challenge and plainly don't want to delegate this police power to Washington.

The president's criticism of the Supreme Court justices does find support in the political doctrine of "Positivism." The positivist theory, developed in Germany following the First World War, holds that a natural law, or the rule of law, simply does not exist. The idea that men are endowed by their creator with certain unalienable rights is therefore patently absurd. "In short, every single tenet of the traditional conception of the rule of law is represented as a metaphysical superstition. The law by definition consists exclusively of deliberate commands of a human will." The legislature is not bound by precedent, by custom or tradition, or by considerations of justice. As apparently vulgar and irrational as is the positivist theory, Hitler used it to leverage the Nazi Party first to power and then to totalitarian power .

In his analysis of the positivist theory, F.A. Hayek writes:

“It was consequently here that the ideal of the rule of law was first deprived of real content. The substantive conception of the Rechtsstaat, (a state bound by the rule of law); which required that the rules of law possess definite properties, was displaced by a purely formal concept which required merely that all action of the state be authorized by the legislature. In short, a "law" was that which merely stated that whatever a certain authority did should be legal. The problem thus became one of mere legality. By the turn of the century it had become accepted doctrine that the "individualist" ideal of the substantive Rechtsstaat was a thing of the past, "vanquished by the creative powers of national and social ideas. This new formulation, known as the "pure theory of law" signaled the definite eclipse of all traditions of limited government.”

The concept of the rule of law and the subordination of central government to the enumerated powers of an American Constitution have created a most prosperous, just, and free United States. Americans break faith with the Constitution and the tradition of constitutional government only at their peril. Hayek's magnum opus, The Constitution of Liberty, was written long before America's present constitutional crisis. Nevertheless, Americans should recall Hayek's warning — as relevant now as it was then — and take it to heart, for:

“Only a demagogue can represent as "antidemocratic" the limitations which long-term decisions and the general principles held by the people impose upon the power of temporary majorities. These limitations were conceived to protect the people against those to whom they must give power, and they are the only means by which the people can determine the general character of the order under which they will live.”

(You download a free PDF version of Hayek’s book by clicking here.)

Operating in a manner inconsistent with time-honored constitutional principles is a hallmark of this presidency. What cannot be achieved legislatively, the current White House occupant will enforce through executive order. His attitude toward the Supreme Court bears no difference from that which the Democratic Party ascribed to President Richard Nixon some thirty-nine years ago. They referred to him as the "Imperial President," as coined by noted historian Arthur Schlesinger, Jr., for Nixon's perceived growth of the power of the presidency. It is arguable that this president is showing a far greater propensity toward the acquisition of political power than Nixon himself ever did. But what else could we expect from an Alinsky radical; “Pick the target, freeze it, personalize it, and polarize it. In conflict tactics there are certain rules that [should be regarded] as universalities. One is that the opposition must be singled out as the target and “frozen.” Now Obama’s target is the Supreme Court of the United States.

Words have meaning, Mr. Obama. It would be conducive to good government to learn them for their true meaning — and to not use them for demagogic purposes.

Has Barack Obama’s Regime Caused Progressivism To Decline?

"Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all. We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain." — Frédéric Bastiat (The Law).

According to a 2010 poll by the Gallup Polling Organization there are more conservatives and independents (moderates) than liberals or progressives. Conservatives have maintained their leading position among U.S. ideological groups in the first half of 2010. Gallup finds 42% of Americans describing themselves as either very conservative or conservative. This is up slightly from the 40% seen for all of 2009 and contrasts with the 20% calling themselves liberal or very liberal. The Gallup Report states:

“The 2010 results are based on eight Gallup and USA Today/Gallup surveys conducted from January through June, encompassing interviews with more than 8,000 U.S. adults. The 42% identifying as conservative represents a continuation of the slight but statistically significant edge conservatives achieved over moderates in 2009. Should that figure hold for all of 2010, it would represent the highest annual percentage identifying as conservative in Gallup's history of measuring ideology with this wording, dating to 1992.

The recent rise in conservatism's fortunes follows a decline seen after 2003; liberalism has experienced the opposite pattern. From 1993 to 2002, the ideological trend had been fairly stable, with roughly 40% identifying as moderate, 38% as conservative, and 19% as liberal. Before that, the presidential bid of independent candidate Ross Perot may have contributed to a heightened proportion of Americans (43%) calling themselves moderate in 1992.

The ideological orientation of Americans seen thus far in 2010 would represent a record-high level of conservatism (since at least 1992) if it is maintained for the full year. This follows an increase in the percentage of conservatives in 2009 that was fueled by heightened conservatism among independents, a pattern that continues today.”

I believe that this rise in conservatism and conservative thinking by so-called moderates is fueled by three factors: 1.) the increasing popularity of conservative talk radio, 2.) the Tea Party’s influence on American politics, and 3.) the overbearing government regulations and sky rocking national debt under the Obama regime. If you are unsure of where you stand on political spectrum click here to view a good description of what liberals and conservatives believe.

According to the Heritage Foundation, a conservative think tank, more people than ever before are reading the Constitution. Heritage is one of many organizations that offer copies of the Constitution for the asking at a mere $1.00 per copy.

The people of a nation that has experienced unprecedented peace and prosperity for an extended period of time are often lulled to sleep, believing there will never be an end to their good fortune. Many powerful countries throughout history have floundered and decayed as they gradually descended into chaos, not realizing the ultimate fate that awaited them. However, the United States has been granted an opportunity to escape this fate through what appears to be a long-term disaster potentially turning out to be its long-term salvation. That event is the election of Barack Obama as president.

Mark Levine wrote in his bestselling book Ameritopia:

“Plato’s Republic, More’s Utopia, Hobbes’s Leviathan, and Marx’s workers’ paradise are utopias that are anti-individual and anti-individualism. For the utopians, modern and olden, the individual is one-dimensional—selfish. On his own, he has little moral value. Contrarily, authoritarianism is defended as altruistic and masterminds as socially conscious. Thus endless interventions in the individual’s life and manipulation of his conditions are justified as not only necessary and desirable but noble governmental pursuits. This false dialectic is at the heart of the problem we face today.

In truth, man is naturally independent and self-reliant, which are attributes that contribute to his own well-being and survival, and the well-being and survival of a civil society. He is also a social being who is charitable and compassionate. History abounds with examples, as do the daily lives of individuals. To condemn individualism as the utopians do is to condemn the very foundation of the civil society and the American founding and endorse, wittingly or unwittingly, oppression. Karl Popper saw it as an attack on Western civilization. “The emancipation of the individual was indeed the great spiritual revolution which had led to the breakdown of tribalism and to the rise of democracy.” Moreover, Judaism and Christianity, among other religions, teach the altruism of the individual.

Of course, this is not to defend anarchy. Quite the opposite. It is to endorse the magnificence of the American founding. The American founding was an exceptional exercise in collective human virtue and wisdom—a culmination of thousands of years of experience, knowledge, reason, and faith. The Declaration of Independence is a remarkable societal proclamation of human rights, brilliant in its insight, clarity, and conciseness. The Constitution of the United States is an extraordinary matrix of governmental limits, checks, balances, and divisions, intended to secure for posterity the individual’s sovereignty as proclaimed in the Declaration.

This is the grand heritage to which every American citizen is born. It has been characterized as “the American Dream,” “the American experiment,” and “American exceptionalism.” The country has been called “the Land of Opportunity,” “the Land of Milk and Honey,” and “a Shining City on a Hill.” It seems unimaginable that a people so endowed by Providence, and the beneficiaries of such unparalleled human excellence, would choose or tolerate a course that ensures their own decline and enslavement, for a government unleashed on the civil society is a government that destroys the nature of man.

On September 17, 1787, at the conclusion of the Constitutional Convention in Philadelphia, Delegate James Wilson, on behalf of his ailing colleague from Pennsylvania, Benjamin Franklin, read aloud Franklin’s speech to the convention in favor of adopting the Constitution. Among other things, Franklin said that the Constitution “is likely to be well administered for a Course of Years, and can only end in Despotism as other Forms have done before it, when the People shall become corrupt as to need Despotic Government, being incapable of any other.”

Over the past fifty years, regardless of who was in the White House or in charge of Congress, no one has been able to halt the incessant spread of left-wing radicalism in the nation's institutions, as well as the exponential growth of a federal government with its tentacles increasingly intertwined in the day-to-day lives of all Americans. As long as the people remained largely disengaged, the potential damage to society as a whole and to the financial health of the country was unknown to the vast majority of the population.

Over the past three years, this indifference has begun to change as the reality of the nation's future and the motives and tactics of those on the left have come into focus. But that reality has come to the fore solely as the result of the aggressive implementation of left-wing policies by the current administration combined with a two-year Democrat supermajority in Congress which allowed the progressives to pursue their vision of America unopposed and unencumbered.

During this two-year period, ObamaCare was passed using unprecedented legislative trickery and political bribery. An extraordinary number of "czars" were appointed to enact policy in the dark of night and avoid oversight by Congress. A litany of grants and loans were given to political cronies ostensibly to develop green energy companies — many of whom have now declared bankruptcy.

Additionally, the regulatory agencies, such as the EPA, have issued a tidal wave of regulations geared to strangle the free market and centralize economic control in Washington. Three failed stimulus packages were passed, none of which came remotely close to creating the jobs promised. Since 2008, over $5 trillion in national debt has been accumulated with no end in sight, and financial insolvency a real possibility in the not too distant future.

The unplanned circumstance of a Democrat supermajority in Congress and a leftist president came about decades before the strategy of gradualism, begun in the 1930s, would have more easily achieved the same objectives. The primary aspect of this strategy was straight out of the socialist/progressive handbook. That is to create a demand for subsistence and dependence on a powerful central government under the mantra that a country so wealthy and prosperous owes its citizenry an ever-expanding social safety net, all the while subtly altering the historic relationship between the people and the government, as a greater percentage of the population would become dependent on the largess of those in control of government.

Additionally, beginning in the late 1960s, the left began to aggressively infiltrate the media, the entertainment complex, the education establishment, and government bureaucracies. The ultimate prize was the control of a major political party while indoctrinating the populace with anti-American and pro-socialist dogma. By the mid-1980s, they succeeded in dominating these sectors of the American ruling establishment, and as of 2008, they achieved control of the Democratic Party.

However, they have had less than thirty years, and only one generation to program with their failed and self-serving philosophy. That is why over 40% of the electorate still identifies as conservative while only 21% self-identify as liberal (moderates make up 35%). In fact, since 1992, conservative identification has increased from 35 % to 40%, while the liberal identification has increased only from 18% to 21%. Assuming that half of those who consider themselves moderates lean conservative, then conservative leaning moderates and conservatives combined would account for 58%-59% of the population, confirming that the United States is a right-of-center country. While these numbers may be encouraging to conservatives we must not overlook the fact that the 21% controls most of the media, academia, and the entertainment industry — this is the problem we face.

The basic character and beliefs of the majority of the American people have not been significantly altered. While the timing may have been in place to have Barack Obama elected president while pretending to be moderate, the timing to turn the United States into a bastion of socialism was not. The infiltration of the various institutions by the left and the creation of a preponderant dependent class have not been underway long enough to change the character of the majority of the population.

In essence, Barack Obama's presidency coupled with the left-wing dominance of the Democratic Party with a congressional supermajority occurred too early in the history of the nation for the left to achieve their objectives.

Yet the overreaching by the Obama administration has continued even after the resounding defeat in 2010, when the Republicans gained control of the House of Representatives, as Barack Obama is now governing by use of executive orders and recess appointments in contravention of the Constitution. Obama's and the Democrats' indifference to the rule of law and the future of the country has not only awakened the people, but also placed the fate of the American left in jeopardy.

Thus, panic has begun to set, as it is now dawning on the American left that there is a very real possibility that Barack Obama will be defeated in November; the Republicans may well control both houses of Congress by a significant margin; and the odds that the Supreme Court could declare their landmark accomplishment, ObamaCare, unconstitutional have risen dramatically. If Obama loses and the Republicans control Congress, then the last chance for the progressives to achieve their socialist utopian dream will be gone forever. They are now retreating to the only political strategy they know: fear and intimidation.

The digital storm troopers of the left, Media Matters and MoveOn.org among others, have been dispatched to shut down the alternative media by any means possible. They harbor a particular animus against talk radio, as chronicled by Jeffrey Lord in the American Spectator. The effort to incite societal upheaval through racial intimidation has been and will be further escalated. Class warfare and its attendant demonstrations, rallies, and riots will be pushed to a level never experienced in the United States. There will be no moral or ethical limits to the lies, vitriol, and demagoguery the nation will be put through over the next seven months.

The late Austrian free-market economist Ludwig von Mises described the leftist method of operation as "fanatical and intolerant." It works, he said, this way:

“Socialism works on the emotions o stifle the voice of reason by awakening primitive instincts.”

Bastiat expressed similar views over 100 years ago when he stated:

"These socialist writers look upon people in the same manner that the gardener views his trees. Just as the gardener capriciously shapes the trees into pyramids, parasols, cubes, vases, fans, and other forms, just so does the socialist writer whimsically shape human beings into groups, series, centers, sub-centers, honeycombs, labor-corps, and other variations. And just as the gardener needs axes, pruning hooks, saws, and shears to shape his trees, just so does the socialist writer need the force that he can find only in law to shape human beings. For this purpose, he devises tariff laws, relief laws, and school laws."

Bastiat went on to state in his essay The Law:

"When plunder becomes a way of life for a group of men living together in society, they create for themselves, in the course of time, a legal system that authorizes it and a moral code that glorifies it."

The hallmark of the conservative and Republican opposition over the past fifty years has been passivity with an over-emphasis on civility. The left is counting on the same in this election cycle, as they intend to overwhelm and intimidate not only their Republican opponents, but the Tea Party movement and the populace as a whole.

While those in the conservative movement and the Republican Party cannot stoop to the level of the Democrats, Barack Obama, and the left, they must stand up and go toe-to-toe with their adversaries and understand that the vast majority of the American people are not sympathetic to the end-product of progressive policies. However, if the Republican Party campaigns as it has over the past five decades, Barack Obama could win an unnecessarily close election despite all the factors arrayed against him.

Therefore, every political accusation has to be answered with a forceful rebuttal; every lie told must be called a lie, and not some polite euphemism; everyone who tells a falsehood or fabricates an anecdote out of whole cloth must be called a liar. There must be a constant drumbeat of focused talking points used by all candidates for public office and their supporters reminding the electorate of the failures of Barack Obama and the Democratic Party as well as the long-term impact of these fiascos. Charges of racism, homophobia, misogyny, et al. should be dismissed with Ronald Reagan's famous line — "There they go again" — and then ignored, as this tactic is now threadbare from overuse.

Whoever wins the Republican presidential nomination and those running for the House of Representatives, the Senate, and governorships must be determined to win their elections at any cost and without reservation or so-called "civility."

The citizens of the United States have been granted an unprecedented window on a future as envisioned by the American left. That prospect must be rejected by soundly defeating Barack Obama and the Democratic Party in November thus ending the progressive era in America.

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.

A Nation Divided

“A house divided against itself cannot stand.” — Abraham Lincoln, June 16, 1858.

Abraham Lincoln delivered this speech, from which the above quote was taken, upon his nomination as the Republican candidate for the U.S. Senate in Illinois, where he would square off against incumbent Senator Stephen Douglas. Drawing the leading metaphor from a passage in the Gospel of Matthew, Lincoln held that pro-slavery forces—Douglas, Franklin Pierce (president when the Kansas-Nebraska Act was adopted), Roger Taney, and James Buchanan (president when Dred Scott was decided)—were working in concert to effect a national policy legalizing slavery in all states and territories. Papers throughout the North reprinted the text of the speech, propelling Lincoln to new prominence. Two years after this speech Lincoln was elected president of the United States and the American Civil War began, a war that led to the abolition of slavery and the 14th Amendment to the Constitution.

Today this nation is divided over issues of race and class. Even though we have a black president class and race relations in the United States have deteriorated to a point that is reminiscent of the days of the civil rights marches. After spending trillions of dollars to fight poverty in the past 50 years the poverty rates in the inner cities has not improved and race relations have worsened. There numerous reasons for this malady but four of the most obvious are; Lack of adequate education in the inner cities, single parent families, a left-wing media and race baiting politicians who use race to garner the votes to keep them in power. This latter is called by many the “New Planation.”

Mark Alexander writes in the Patriot Post:

“According to the Chicago Sun-Times, in just 48 hours, 10 people were murdered and at least 40 others were seriously injured. Most of the victims were 15-30 years of age and the assailants were black or Latino. One victim was six-year-old Aliyah Shell, who was shot to death while playing on the front porch of her home in the Little Village neighborhood.

"The violence this weekend underscores that Chicago has a unique gang problem," claimed Obama's former chief of staff and current Windy City Mayor Rahm Emanuel.

You may recall that a year ago, the Chicago Sun-Times won the 2011 Pulitzer Prize for local reporting on violence in Chicago, most notably for a similar story about a weekend of mayhem in 2008 when seven people were killed and 33 wounded. (There were 60 percent more murders in Chicago that year -- 509 -- than combat deaths in Iraq, but neither Cindy Sheehan nor Code Pink were anywhere to be found.)

Of that award, Sun-Times Publisher John Barron proudly exclaimed, "It's not every day that I hear multiple squeals of joy. That's what happened when we found out. What a great sound. There are so many smiling faces around here now." The Pulitzer citation was for "documentation of violence in Chicago neighborhoods ... as a widespread code of silence impedes solutions." (Nothing like reporting on deadly violence to evoke "multiple squeals of joy.")

Of course, Obama and black leaders across the nation haven't said a single word about all of the violence in Chicago, opting instead to maintain the "code of silence which impedes solutions."

However, Barack and his cadres of race-hustling "useful idiots" are luring black voters with fresh Florida race bait, specifically using the death of Trayvon Martin, age 17, as political fodder to keep their most loyal constituency confined to the Democrat Party Plantation. Indeed, the "black vote" is key to the Left's divide-and-conquer strategy given that more than 90 percent of black voters support Democrats. Indeed, were it not for this monolithic support, the Democrat Party would be hard-pressed to win a single statewide election -- much less a presidential election.”

Alexander continues:

“To that end, my colleague Walter E. Williams, in an essay entitled "Profiling," notes, "The former Charleston, S.C., black chief of police, Reuben Greenberg, said the problem facing black America is not racial profiling. He said, 'The greatest problem in the black community is the tolerance for high levels of criminality.' Former Los Angeles black police Chief Bernard Parks, defending racial profiling, said: 'It's not the fault of the police when they stop minority males or put them in jail. It's the fault of the minority males for committing the crime. In my mind, it is not a great revelation that if officers are looking for criminal activity, they're going to look at the kind of people who are listed on crime reports.' Are former police Chiefs Greenberg and Parks racist?"

On the institutionalization of crime, Williams notes further, "Crime is one of the results of the liberal agenda. Blacks are 13 percent of the population but are more than 50 percent of murder victims. About 95 percent of black homicide victims had a black person as their murderer."

Regarding the Democrat Party plantation, Williams writes, "During the 1960s, academic liberals and hustling politicians told us that to deal with crime, we had to deal with its 'root causes,' poverty and discrimination. Thomas Sowell has pointed out that in 1960, the total number of murders in the United States was lower than in 1950, 1940 and 1930, even though our population had grown and two new states had been added. The liberal agenda, coupled with courts granting criminals new rights, later caused the murder rate to double, and the rates of other violent crimes also began to skyrocket. Crime imposes a hefty tax on law-abiding residents of black neighborhoods. Residents bear costs of having to shop outside of their neighborhoods; criminals have driven many businesses out. Children can't play safely in front of their homes. Fearing robberies, taxi drivers, including black drivers, often refuse to accept telephone calls for home pickups and frequently pass black customers by on the street. Neighborhood property values are lower as a result of crime. Plus, there's the insult associated with not being able to receive pizza or other deliveries on the same terms as people in other neighborhoods."

Indeed, in "Race and Rhetoric," Sowell also notes, "The poverty rate among blacks was nearly cut in half in the 20 years prior to the 1960s, a record unmatched since then, despite the expansion of welfare state policies in the 1960s. Not only was unemployment among blacks in general lower before the liberal welfare state policies expanded in the 1960s, rates of imprisonment of blacks were also lower then, and most black children were raised in two-parent families. At one time, a higher percentage of blacks than whites were married and working. None of these facts fits liberal social dogmas.

Heather MacDonald of the Manhattan Institute sheds more light on the statistical color of crime: "Black males between the ages of 14 and 24 were seven times more likely to die of homicide in 2007 than white and Hispanic males of the same age group combined. But the danger they face comes overwhelmingly from other black males, whose homicide offending rate in the 14 to 24 age category was nearly ten times higher than that of young white and Hispanic males combined. Most homicides are intraracial, but the chance of a black being killed by a white or Hispanic is much lower than the chance that a white or Hispanic will be killed by a black."

Moreover, because the FBI categorizes Hispanics as "white," MacDonald notes, "If Hispanics were removed from the category of 'white' killers of blacks, the percentage of blacks killed by Anglo whites would plummet, since a significant percentage of what the FBI calls 'white'-on-black killings represent gang warfare between Hispanic and black gangs."

The real crime, according to former Garland, Texas, NAACP leader C.L. Bryant, is "exploiting" the Trayvon Martin tragedy to "racially divide this country. His family should be outraged at the fact that they're using this child as the bait to inflame racial passions."

(For a more candid treatise on "black America," read Bill Cosby's remarks on the NAACP's Gala Commemorating the 50th Anniversary of Brown v. Board of Education.)

What black men and women -- in fact men and women of any race and ethnic background -- should be protesting is the race-bait rhetoric of Obama and his poverty pimps, who promote the Democratic doctrines that perpetuate institutionalization of poverty and its resulting violent subcultures. As a friend said to me recently, "Give a man a fish and he eats for a day. Give a man a welfare check, free food, transportation and housing, and he will vote Democrat for a lifetime."

I think Alexander explains the issue of the Democrat plantation very well.

Just as Rahm Emmanuel didn't want to let a good crisis go to waste, the national press doesn't want to let a good victim go to waste.

The death of Trayvon Martin is a terrible thing, but the usual suspects are hijacking his death to create a morality play. Whenever this happens, and it happens with some frequency in American life, truth is corrupted.

About 153 young black men are killed every week in America — 94 percent of them at the hands of other young black males. Only one of those who were murdered on Feb. 26 has dominated national news coverage — because his killer was not black.

There is an etiquette to discussing ethnicity that goes straight out the window if the press decides to create a racial villain. Normally, if a person is of mixed ancestry, as George Zimmerman is, he gets the benefit of the doubt on being a minority. A person with mixed ancestry, such as Cameron Diaz or Bill Richardson, would never be called "half white." But Zimmerman became, in the phrase adopted by The New York Times, a "white Hispanic."

Among the disgusting features of this national drama is the furious search for Zimmerman's exact racial/ethnic pedigree. He's a full Hispanic, claims one website. He's half white but considers himself a Hispanic, says his father. Do they hear themselves? Could apartheid South Africa or the racial policies of the Third Reich have been more exacting in searching for the drops of racial blood?

The left has ginned up the outrage machine, as if America were experiencing an epidemic of white on black killings and this was the last straw. This is fiction. According to the Bureau of Justice Statistics, only 3.2 percent of black victims were murdered by whites in 2005, the last year for which data are available. The black on white rate was higher — 8.8 percent — but still, the data show that murder remains very much an intraracial phenomenon.

It isn't at all clear what happened on Feb. 26. It certainly appears that Zimmerman used excessive violence. Zimmerman's story of being in a fight (apparently corroborated by an eyewitness) is not supported by the videotape that shows him unharmed at the police station.

The facts remain far from clear.

The dead youth, who is now universally imagined as his 13- or 14-year-old self because of the old picture that has circulated, may or may not have been up to something more than buying Skittles that night (not that that would justify the shooting). We don't know.

But we do know the way narratives are created and manipulated to make political points. The 1998 murder of Matthew Shepard, a tragedy by any reckoning, was perverted into a "hate crime" by a media keen to create a gay victimization story and by a defense attorney looking for an argument about why his client "snapped." (He claimed that Shepard made a pass and his client became violent in response.) The fictional version of the tale — that Shepard was singled out, tortured and murdered because he was gay — lives on in books, television dramas, and one of the most frequently performed plays in the repertoire, "The Laramie Project." It was also the partial inspiration for the federal hate crimes act, signed into law by President Obama in 2009.

The truth is more complicated. As the ABC show "20/20" reported, the two men who killed Shepard were coming off a weeklong methamphetamine binge. One was raised by an unmarried teenaged alcoholic. The other was the product of divorce and then lost his mother at a young age. Both were heavy drug and alcohol abusers. There is evidence that Shepard himself may have accepted a ride with them because he was into drugs as well. After leaving Shepard bludgeoned and tied to a fence, the killers intended to rob his apartment but got into another brawl with two other criminals that night, one of whom suffered a fractured skull.

It was all ugly — but not quite in the way the we've been told.

So it was with the Duke Lacrosse case. Before anyone really knew what the facts were, the left, including a large segment of the Duke faculty to their eternal shame, peddled a version about spoiled, racist, white college kids abusing and raping a black dancer. We now know how that turned out.

In one recent Chicago weekend, 49 people were shot, 10 fatally, including a 6-year-old black girl. Did President Obama issue a statement? Black-on-black crime, like black-on-white crime, does not fit the liberal media's narrative of white racism they want to promote.

How selective is the outrage about interracial crime — when the bad guy is black?

Ken Tillery, in 2002 walked down a Jasper, Texas road. Three men offered him a ride. But the men kidnapped Tillery, driving him to a remote location. John Perazzo of FrontPageMagazine.com describes what happened: "When the terrified Tillery jumped out of the vehicle and tried to flee, the kidnappers caught up with him, beat him and finally ran over him — dragging him to his death beneath their car's undercarriage."

Same town, a few years after the James Byrd murder, a black-white murder in the same fashion — by dragging a man to his death — but no story! Why? Well, Tillery was white, and the three suspects were all black. The irony alone would, one would think, guarantee lots of coverage. But how much coverage did the case get? An online search of 557 newspapers found that 22 covered the story.

On April 16, 2011 two young British tourists were shot dead when the mistakenly wandered into a notorious black ghetto in near Sarasota Florida. According to The Telegraph the British tourists were shot dead after begging for their lives before being gunned down:

“James Cooper and James Kouzaris pleaded with their alleged killer after getting lost late at night in a crime plagued housing estate.

They were allegedly robbed at gunpoint in April by 16 year old Shawn Tyson.

But according to an eye witness Tyson was unhappy the pair did not have much money and told them: "Since you ain't got no money then I got something for your ass" before opening fire.

Cooper, 25, and Kouzaris, 24, died in a hail of bullets and were later found in the notorious Newtown area of Sarasota in Florida.

The pair were shot dead after wandering drunk into the housing estate where Tyson and a friends were roaming around looking for someone to rob.”

This story drew little attention and the media ignored the race of the killer. When President Obama made his infamous “if I had a son he would look like Trayvon” statement the parents of Cooper and Kouzaris criticized President Barack Obama for his lack of compassion over their sons' deaths. According to a report in The Telegraph:

“His failure to respond to three letters sent to the White House was because there was no "political value" and not worthy of a few minutes of his time.

They spoke out as teenager Shawn Tyson began a life sentence after being found guilty of the murder of James Cooper and James Kouzaris last April.

The 17 year old, who shot the men as they begged for their lives, will die in prison.

His conviction of first degree murder carries an mandatory life sentence without the chance of parole.

The powerfully built teen even looked bored as emotional DVD presentations about the dead men prepared by their grieving parents were shown in court.

Tyson, who has the word 'Savage' tattooed across his chest didn't show a flicker of emotion, slumping in his seat as he was forced to watch a montage of photos showing the victims from early childhood to young men.

Two close friends of the dead men who had attended the eight day trial in Sarasota, Florida. had also delivered highly emotional impact statements to the court prior to the sentencing.

Paul Davies and Joe Hallett spoke of the "living hell" they and others who knew the men had suffered since the murders.

During the eight day trial they had been shown graphic crime scene and autopsy photos shown in court.

Later speaking after Tyson was jailed Davies and Hallett lashed out at Mr. Obama saying the deaths of their friends was "not worthy of ten minutes of his time."

Davies said:" 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 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."

Where preferred victim narratives are concerned, truth is the first casualty of American journalism.