President Obama is a former president of the Harvard Law Review and famously taught constitutional law at the University of Chicago. But did he somehow not teach the historic case of Marbury v. Madison? That ‘s a fair question after Mr. Obama’s astonishing remarks on Monday at the White House when he ruminated for the first time in public on the Supreme Court’s recent Obamacare deliberations. ‘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,’ he declared. Editorial, ‘Obama vs. Marbury v. Madison’, The Wall Street Journal, April 3, 2012
This intellectually challenged President is wrong in every aspect of that ludicrous statement. For a law school graduate and adjunct faculty member of the world’s leading law school to make such egregious errors confirms suspicions that Barack Obama’s academic career advanced through factors seriously unrelated to merit.
First let me reset the facts concerning the enactment of Obamacare. The bill was dragooned through a reluctant Senate without a single GOP vote, and with the bare 60 votes required to break a filibuster. Despite a huge Democratic majority in the House, the bill passed by only 219-212, with several Democrats forced to vote against their constituency interests by defunding threats leveled against them by Nancy Pelosi, the Speaker of the House, and by President Obama’s White House goons. Obamacare was not passed by a strong congressional majority. Opinion polls showed growing voter majorities against the legislation as it ground its way into law. Obamacare was driven into law by minority factions careless of a rising majority opposition among the People.
Second, let me draw the attention of the President to Chief Justice John Marshall’s 1803 judgment in Marbury v. Madison and the implication of that judgment for any legislation that passes through the legislative and the executive chambers of government. Marbury was the first Supreme Court case to apply the emergent doctrine of judicial review to a congressional statute. Voting 5-0, an unanimous Supreme Court handed down one of the fundamental judicial opinions in American constitutional history. Any constitutional law professor who fails to refer to this case should be thrown out of the classroom as incompetent in his understanding of the discipline.
William Marbury had been appointed a justice of the peace in the District of Columbia in the dying hours of the administration of Federalist President John Adams. Together with other Federalist partisans falling within John Adam’s group of ‘midnight judges’ , Marbury was targeted politically by the incoming Republican administration of Thomas Jefferson. Jefferson’s Secretary of State, James Madison, simply refused to deliver Marbury’s signed and sealed commission, thereby denying him his appointment.
Marbury invoked the original jurisdiction of the United States Supreme Court, requesting the Court to issue a writ of mandamus ordering Madison to deliver the commission. Congress, at Jefferson’s bidding, altered the date of the Supreme Court’s terms, thereby delaying the hearing of Marbury’s case until February 1803. In the interval, the Federalist-sponsored Judicary Act of 1801 was repealed and circuit judges appointed under its provisions were dismissed.
Chief Justice Marshall, appointed during the last months of the Adams administration, was virtually a ‘midnight judge’ himself. Undeterred by the political turbulence surrounding the hearing, John Marshall held that Marbury was entitled to his commission and that Madison had withheld it from him wrongfully. Mandamus was the appropriate remedy at common law. However, the question was whether it was available under Article III’s grant of original jurisdiction to the Supreme Court. Marshall was required to compare the terxt of Article III with section 13 of the Judiciary Act of 1789, by which Congress authorized the mandamus writ.
Finding that the 1789 statute conflicted with the Federal Constitution, Marshall considered it ‘the essence of judicial duty’ to follow the Constitution. He concluded that ‘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 os void, and that courts, as well as other departments, are bound by that instrument.’
Since affirming relief was denied, the decree in Marbury was self-executing, and notable as an example of self-restraint in the face of what Marshall described as an arbitrary denial of Marbury’s property rights. The opinion, ever-afterwards, provided the judiciary, both state and federal, with a potent weapon for protecting individual rights against the actions of legislative majorities. Carried to its logical conclusion, Marshall’s opinion means that the life, liberty and property of citizens depends ultimately upon the exercise of judicial review as a constitutional check on legislative discretion.
You may well have skirted around Chief Justice Marshall’s judgment in your progressive law classes on the Chicago campus, Mr. President. I suspect that Chief Justice Marshall will rise up from the grave to punish you for this ignorant or contemptuous evasion of constitutional law when the Court hands down its majority judgment on Obamacare in the summer of 2012.
