From Marbury to Obama Care: John Roberts Channels John Marshall

By

S.G. Finefrock

Federalists v. ‘Republicans’ has become Democrats v. Originalists, in the SCOTUS decision on health care.  All this argument about the role of the Court began tangentially in the Constitutional Convention, and subsequently in the Federalist Papers’ arguments to get the document ratified.  Among the most ardent advocates for the Constitution’s move to a more central government was a hard core Federalist, John Marshall, later the third Chief Justice [or fourth, counting one appointed but never confirmed by the Senate], but not until he was secretary of state under Adams.

General agreement was considered toward some ‘judicial review’ for the Supreme Court, but the third article of the document is quite scant in guidance.  Hamilton branded the judiciary “the least dangerous branch” of government.  He went head-to-head with Jefferson, who returned from Paris six months into Washington’s presidency to take the secretary of state slot, finding that something akin to a coup was brewing, or so he thought of Hamilton and the Federalists who dominated Washington’s core crew.

Soon, Jefferson jumped Washington’s ship, with his enthusiasm for the French Revolution fully intact, founding his party to run against Adams but losing, to see Adams move the presidency into some realms which the ‘originalist’ Jefferson found troubling.  Jefferson had formed the ‘republican’ party in opposition to the Federalists, in order to protect the republic he felt was in dire risk of becoming too centralized.  See a pattern forming here, my liege?

In 1800, the nastiest presidential election in history, Jefferson re-challenged the incumbent Adams, and won handily and took office to find Federalists everywhere, being given ‘midnight commissions’ – including one to an office seeker named Marbury.  Jefferson denied the commission to Marbury, in the person of his new secretary of state, James Madison, for the actual paperwork had not been delivered, still sitting among other such commissions in Madison’s office.

Awaiting in the SCOTUS wings was Marshall, appointed Chief Justice late in Adams’ term, and watching the controversy arise as Marbury sued Madison, in the Supreme Court itself, seeking for the Court issue a writ of mandamus to require his appointment be recognized by Madison.

Madison served his ally well, as the Court accepted the controversy onto its docket, filed directly as an ‘original jurisdiction’ case, meaning the Supreme Court would consider it in its original presentation, rather than on appeal after a trial court had rendered a finding.  And here Chief Justice John Marshall triumphed, in a finesse of the law that comes back to mind on seeing current Chief Justice John Roberts finesse the ‘tax’ versus ‘mandate’ issue this week.

Marshall wanted to establish a principle of judicial review as a recognized prerogative, and yet not also irritate Jefferson, for any ‘order’ issued by a Federalist chief to the feisty redhead would be summarily ignored, making the Court look impotent as a vital time.  SCOTUS was a wee tiny sapling, or more like a struggling institutional seedling, not yet the tall oak tree it would become over the coming decades, so the Court had to give Jefferson what he wanted – deny Marbury his office in the government – and also lay down a principle of law that later would hold muster in appellate cases.

As John Roberts finessed this week to get his principle enshrined in a decision which his liberal haters on the Court and in the Oval would embrace, so Marshall ruled that, yep, sure enuf, Marbury, you are entitled to your remedy, BUT: ya filed your petition in the Wrong Court.  For the third article sets the original jurisdiction in plain language, which does not include a mere citizen suing the president for a writ of mandamus; and Marshall ruled that the original jurisdiction could not be increased by an act of Congress, but was fixed by its place in article three without any provision for it to be expanded.  Thus, in declaring the Court had the power to rule against the other two branches, Marshall got a judicial-review seedling planted, and presented Jefferson with a triumph.

Years later, as Marbury v. Madison was cited more and more frequently in briefs before the Court, Jefferson bristled at that case standing so tall, when he thought it so puny, almost worthy of dismissal in any intellectual discussion.  Far far more than Marbury’s wee tiny job was at issue – Judicial Review had been quietly planted in fertile soil, and that tree grew to today’s power of judiciary power, unquestioned by any liberal of the past four generations, unaware or uncaring how ‘political’ had been Marshall’s logical and political maneuvers.

As Jefferson went from being for small government to expanding it remarkably, so the party he founded became the so-called ‘democratic’ party [‘cardcheck’ anyone!], whose hero FDR packed the Court to get his way, intimidating it so that one critical Justice switched his vote, to suddenly give sway to FDR’s New Deal programs – the “switch in time that saved nine” justices from further attacks by FDR.  The liberals have been running in high gear since, authorizing massive government interference in farmers’ work and even a New York butcher shop’s process of customers’ selection of live chickens before they would be slaughtered.  That case brought by the butchers revealed such stupidity before SCOTUS that the Justices openly laughed at the insanity of the government’s over-reach.

There was no laughter this week, as Obamacare was finessed by Roberts’ reasoning that the commerce clause is being over-stretched, by the so-called ‘elastic clause’ that the elastic is about to wear out.  And like Marshall, he infused that concept inserted into language allowing Obamacare to survive.  So, like Jefferson, Obama accepts the overall ‘victory’ and can do nothing about the subtle verbiage which can be used later to establish restraints on government overreach. 

“Marbury” in reverse! Or, the ghost of Marbury returns, at the hand of a different John in the Chief’s Chair.

Noteworthy in correcting the record of history is to emphasize that Jefferson’s overwhelming 1904 re-election gave him well over two-thirds in each chamber of Congress, so he went after the judiciary, specifically the Federalists justices, impeaching one in particular, certain he would convict the first one, then another, and ultimately John Marshall.  This is as vital history as the impeachment trial of President Andrew Johnson; both tales are in Chief Justice Rehnquist’s book, “Grand Inquests,” which was apparently read by liberals only in the second half.  Give it a look-see, and see how political the democrats’ Holy Saint was in his attempt to intimidate the Court, 130 years before FDR tried a much tamer Don Vito Corleone stunt.

Today, the liberals will whine – their greatest intellectual talent – that there’s politics going on in the Court, and that it has been so since Bush v. Gore.  Nope, nothing new under this sun.  It will be interesting to see how they flinch at Roberts’ finesse, and conveniently ignore the Original Finesse which gave the first vital ‘seedling’ its push toward ever-greater judicial power, to the “least dangerous” branch.  Which it was, for a while – until liberals found it a pathway to ‘amending’ the Constitution without all that bother of both houses of Congress voting by two-thirds to submit language to be ratified by three-quarters of the states.

Nope, going the ‘third-article amendment’ route, through the judges, is so, so conveeeenient; that fifth-article pathway is so, so cumbersome.

Maybe some of the more known ‘analysts’ of the Court will take note of how Marshall-like is Roberts.  Starting with our own ‘advocates’ to correct the lies and half-truths which are already popping up from fertile liberal intellectual soil.

Roberts’ reasons and reasoning and rationale are yet to be known, but any accusation that his ‘stunt’ is something new can be characterized as either expression of ignorance, or stupidity, or mendacity.  Which is always a trifecta trait of all liberal ‘reasoning’ on the Court.  Or in the Washington Post.  And NY Times.  Plus NPR, ABC, NBC, CBS, CNN, MSNBC, et al.

Maybe Lawrence Tribe & Co. will be honest and admit this is just ole John Marshall’s spirit being channeled by the current Chief.  HA-HA-HA – but at least some of our own ‘advocates’ might take notice and be prepared.

For it’s an ugly fight, that is only beginning.  We’re past atomic intellectual warfare, even thermonuclear – it’s photon torpedoes being primed for the coming contest, well beyond November, into the far, far future.  We better master warp-drive engines to keep up with the Left.  Our Chief on SCOTUS has shown some deftness akin to John Marshall.  We better be as deft ourselves.

By the way, Jefferson lost his attempt to impeach and convict the first Justice so targeted – several of his super-majority defected, Zell Miller-like, and the judiciary’s independence was saved.  Any democrats today likely to stand up to Obama?  Any honest brokers at MSNBC, PBS, NPR, CNN?

HA-HA-HA… ask Corey Booker.