Posts Tagged ‘James Madison’

James Madison on how Obama populism should be checked

February 3, 2013

“The inference to which we are brought is, that the causesof faction cannot be removed, and that the relief is only to be sought in the means of controlling its effects. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interests both the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed….By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression.” James Madison, The Federalist No. 10

The Founding Fathers wrote the Constitution to protect Americans from the tyranny of majorities as well as minorities. The separation of powers is key to that protection. That is why Americans should not castigate the majority in the House of Representatives for defending minorities against Obama populism. Each member of that House takes an oath to preserve and protect the Constitution. Restraining the passion of some transient majority when it attempts to invade the individual liberties of known minorities is the fulcrum of the republican ideal of government. The House of Representatives failed in that duty when dealing with the first stage of the fiscal cliff. Let us hope that it will not fail again.

Barack Obama is no Thomas Jefferson and no James Madison

January 24, 2013

In January 2013, three interconnected domestic problems dominate the United States. They are (1) the national debt; (2) the rate of economic growth; and (3) the level of unemployment. These issues must be addressed without impacting adversely on the rate of price inflation. Any president able to nudge the economy in good directions on each of these issues would deserve high ranking in the presidential hall of fame.

Unfortunately, these are not the issues on which President Obama has chosen to focus during his second term, at least from the perspective of his inauguration address.The evidence is as follows:

President Obama’s address was 2,108 words in length. Of these he expended 45 words in three sentences on the economy, 19 words in one sentence on the deficit, and 155 words in six sentences indicating that entitlements would not be cut.

In contrast, Obama expended 160 words in six sentences on climate change, and 358 words in ten sentences on equal pay for women, access to gay marriage, the repeal of laws requiring photo-identification to vote, immigration reform, and gun control.

The remainder of his address demonstrated a fundamental lack of understanding of the 1776 Declaration of Independence. Had he read Thomas Jefferson’s masterpiece with the faintest level of comprehension, he would have understood that the principal concern of the revolutionaries was to protect individual colonists from oppressive government, not to use the coercive power of government to force programs favored by some transient majority upon the people at large. Similarly the Bill of Rights is almost exclusively directed to the same goal, protecting the individual from the state. The only interventionist item in that Bill is to guarantee the individual the right to trial by jury – and that again is a right designed to protect individuals against the state.

So when Obama talks about the need for collective action, as a reinterpretation of the Founders’ vision, in fact he pits himself directly against those Founders’ predilections and great wisdom.

By now all of us have the measure of Barack Obama. And I think that I can fairly state that Barack Obama is no Thomas Jefferson and no James Madison. Thoughtful Americans should compare the words of the Declaration of Independence and the Bill of Rights against those of Obama’s second Inaugural. I have no doubt which they will find the more convincing.

President Obama should read Marbury v. Madison (1803)

April 3, 2012

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.


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