Other bloggers have covered in detail President Obama’s expanding body of philosophical commentary on the judicial branch of government. Powerline’s John Hinderaker had a particularly strong post on Tuesday refuting the Obama backtrack, in which the president claimed that the Supreme Court had not invalidated laws relating to commerce and the economy for “decades.” Hinderaker lists recent instances of SCOTUS doing exactly that.
A furor of deductions and rumors has arisen around the president’s utterances on the judiciary. But what caught my attention was how quickly and with what language Obama clarified his Monday gaffe. This was the money quote:
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…
That actually bears no relation to what he said the day before, but it is telling in two ways. First, it is the language of social activists who insist that the Supreme Court has had the last word on issues like abortion and school prayer. And second, it is the rote principle Americans have been taught in the public schools for at least the last 50 years.
But it’s not how the Framers envisioned the role of the court system, and frankly, a constitutional scholar ought to know that, even if the average citizen no longer does. If you haven’t read Mark Levin’s excellent book Men in Black, do yourself a favor and get that checked off the to-do list. It’s well worth your time, especially if you learned American history and civics any time since about 1960. You probably have concepts like “judicial review” and “final say on our Constitution” melded together in your mind, because that’s what you were taught. But the Framers didn’t see it that way.
Their concept of interpreting law was that it is a responsibility shared by the three branches, with each acting as a check on the others. Legislators obviously construe the intent of the laws they write, and the executive places a construction on law in executing it. The court system’s role was never intended by the Framers to function as the sole venue in which law was interpreted. The latitude of the courts depends to a significant extent on what Congress and the executive will tolerate – something we now see in living color every time a new federal judge is nominated.
Americans have little awareness today that Congress is explicitly empowered by the Constitution to limit what the federal courts have jurisdiction over. The relevant passage is in Article III Section 2 of the Constitution. Congress actually uses that power on a routine basis, although it has never seen fit to limit the courts’ jurisdiction on the most freighted social issues.
Meanwhile, the president’s signature is required to enact new laws unless they are passed with a veto-proof majority, so the president also has a say in defining the courts’ jurisdiction. The president appoints judges as well, with the advice and consent of the Senate. The Constitution is designed to give the other two branches explicit powers over, and implicit influence upon, the judiciary. Clearly, the Framers did not intend for the courts to have “the final say” on the nature or scope of law. All three branches have a say in those matters. The courts were to function as a check on the other branches, on narrowly defined issues – not as a supreme arbiter of what the law is or may be.
That’s why the courts are given no power of execution or enforcement. Those powers reside with the executive. The quote itself may be apocryphal, but the famous challenge attributed to Andrew Jackson – “John Marshall has made his decision, now let him enforce it!” – captures accurately the division of powers in the US federal government. The executive can choose to ignore the judiciary – and if the executive has the agreement of the legislature, there is nothing the judiciary can do about it.
The same is true of other combinations among the three branches. If the legislature and the courts are in agreement, they can stymie the executive. If the executive and the courts concur, they can decline to implement something the legislature wants. The purposes of the separation of powers are to prevent a dictatorship by any one branch, and to force compromise, increase the likelihood of moderation, and – at least as important as anything else – bring the processes of government to an impasse when one branch has swung to an extreme.
The people, of course, are the ultimate arbiters of the Constitution. We can change it. The true sense in which it is a living document is that the people can amend it.
As regards the role of the judiciary, however, the original Constitution is set up pretty well. Our society has migrated – due to indoctrination, but also out of ignorance – to an understanding of it different from what the Framers had in mind. On balance, that “supreme arbiter” view of the federal courts has worked in favor of the leftist agenda on social issues. In correcting his previous, erroneous comment on the Supreme Court, Obama reverted reflexively to the “final say on our Constitution” mantra. Of all the things he could have said, that was what he considered important.
J.E. Dyer’s articles have appeared at Hot Air’s Green Room, Commentary’s “contentions,” Patheos, and The Weekly Standard online.
The Optimistic Conservative 
A Constitutional scholar? Who, pray tell, are we talking about here…?
rafa
The “advise and consent” of the Senate has been limited to cursory examinations of the sexual activities of the selected jurors, investigating any marriage peccadilloes they might have committed, oh, twenty, thirty or more years ago and, in extreme cases, looking up the judge’s actual record on a) abortion, b) affirmative action and c) gay marriage. If nothing really, really bad or offensive (meaning politically useful stuff that allows a Senator to adopt a “brave” or “indignant” posture in front of the cameras) the judge is stamped APPROVED and allowed to impact the national destiny with his or her activism.
Nowhere is the judge’s proven pro constitutional stance considered for anything that might fall into the approval process. Although, come to think of it, it might well be used to trigger a stern disapproval if that record was to be considered by some to be too dangerous to the social re-engineering of the nation.
rafa
“Nowhere is the judge’s proven pro constitutional stance considered for anything that might fall into the approval process.”
Given the political divide, any nominee has already undergone examination by the President’s nomination team and vetted. Part of that process is to determine that the nominee can be safely counted upon to gain enough votes as to pass Congressional muster. All that is then left for Senators is political posturing.
No President wants the political embarrassment of having their nominee be rejected. A particularly popular President can misread the political waters as did Reagan with Judge Bork, who did trigger stern disapproval, as his record and views were considered by democrats “to be too dangerous to the social re-engineering of the nation”.
What I take from your comments (and mine), alas quite sadly, is that the judicial nomination process is secondary to the political process by way of avoiding any posible embarrassment of the politician that presents a Judge for Congressional “advise and – snicker, cough, cough – consent”. Also that the whole dog and pony show does not really have much to do with whatever judicial worth the nominee might have or, one does not dare hope, with the protection of our most sacred legal document.
Well, actually, that is exactly what I was alluding to so, yes, I agree with you.
But, contextually translating the game a step further, a politically loaded Congress and a self-centered, arrogant “Constitutional Scholar” President can earnestly strive to wipe out the whole Constitutional web with but a few political key strokes.
Wow! Has THAT ever actually happened…?
NOTE: Rhetorical question alert…
🙂
rafa
I can’t say that I agree that it’s strictly a dog and pony show.
Every President seeks to nominate a candidate who best represents their views and who can garner the votes for approval and lastly, has the strongest judicial credentials.
Obama makes the representation of his views of overwhelming importance, so much so that judicial credentials are only considered in light of their lack keeping a nominee from approval. But that’s only to be expected when having drunk the koolaid is considered to be by far the best qualification for any office.
I get what you are saying and don’t disagree. The “Dog and Pony” show is what Congress puts the nominee and us through by their incessant posturing at every opportunity. That particular aspect of it has little if anything to do with selecting judges that will p[roperly represent the Constitution. And this all comes to us after all the taken oaths by most of these clown demagogues.
rafa
Finally, people don’t amend the Constitution…politicians do.
rafa
Hmmm, well. The people actually are involved in amending it, to a unique extent in our republican form of lawmaking. It now takes ratification by 38 states to amend the Constitution, and a lot of those states (I don’t have an exact count) ratify by referendum. Some don’t, and the state legislature holds the ratification vote instead. But in quite a few of the states, the people actually get to vote directly on a proposed amendment to the Constitution.
Other than electing the president, on which the people vote directly (although our votes are represented through the electoral college), all other federal business IS concluded by politicians. We elect them, but of course, they aren’t literally “us.”
And I thought you lot were against judicial activism. O dear!
Hinderaker overstates the amount of limits that Congress and the President have over the SCOTUS. Neither have any legal influence over the current SCOTUS. Nor has either branch have any influence upon an individual ruling by the SCOTUS as to the Constitutionality of a law.
The Constitution is quite clear;
“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.” Article III. Section. 1.
“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”
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.” Section. 2.
The last sentence is most probably to what Hinderaker refers. By long established legal principles however, once precedent has been firmly set, it is referred to as “settled law” and may not be legally overturned by Congressional whim. Which greatly hinders the influence of Congress in writing new law which seeks to overturn judicial findings of unconstitutionality.
Barring constitutional amendments, (and even then they have to be Constitutional) Congress can only pass legislation that ‘fits between the cracks’ of what has gone before, they cannot legally pass sweeping legislation that overturns settled law and renders parts of the Constitution null and void. Which, were Congress to extend the “Exceptions, and under such Regulations as the Congress shall make” into overturning settled law, it would in fact do. Congress, suddenly starting to pass legislation that would exclude traditional areas from Judicial responsibility would be seeking to overturn settled law.
Just as the Judiciary cannot pass legislation and Congress cannot dictate Executive enforcement of the law, so too cannot either rule on the constitutionality of laws passed and actions taken by the Executive branch.
The primary and arguably sole purpose of the Supreme Court is to keep Congressional legislation and Executive actions within the legal framework of the Constitution. Anything that substantively impinges upon that Judicial function is, by definition unconstitutional.
Obama can try to backtrack, but he clearly said that the Supreme Court had no precedent for overturning a law duly passed by Congress. That was an “unforced error.” It was made during his prepared and considered remarks. It was not a slip committed while Newt Gingrich was figuratively beating his head in during a debate. OK, maybe he was SWAT (Speaking Without A Teleprompter) but is that an adequate excuse for a supposed law professor?
Would any Republican get the same free pass from the media on an utterance of such colossal ignorance?
A judge in the Fifth Circuit told the Justice Department to deliver a letter by Thursday explaining if it is the position of the DOJ that the court lacks power to overturn a federal law for violation of the Constitution. What does Holder say? The President was misquoted? The President was taken out of context? The President was speaking out of his [***]? Foxtrot Uniform, you have no right to demand that?
Judge Bork’s primary weakness was honesty. Ask him a difficult or politically hazardous question, you get an answer. Ask Kagan or Sotomayor a difficult question and you get a silly tapdance. Bork’s secondary weakness was that his view of the Constitution was too close to that of the Founding Fathers, and, therefore, declared by liberals to be “out of the mainstream.”
“That was an “unforced error.” It was made during his prepared and considered remarks.”
While not a law professor, Obama did deliver lectures on Constitutional law, he knows that a majority of votes, however large is inconsequential to the constitutionality of a law. He also knows it barely passed in the House and didn’t pass by that much in the Senate. So this isn’t about historical accuracy or constitutional law.
I strongly suspect this is about starting to prepare the political field for his reelection by expressing certain premises, in this case that if the SCOTUS rules against Obamacare, that ruling is morally invalid because the majority of Congress voted for it, which necessarily presupposes that the only valid test of the veracity of an opinion is one based upon public consensus.
Obama is not going to run against Romney, he’s getting ready to run covertly against the SCOTUS and overtly against Congress, borrowing pages from FDR and Truman.
He can’t stand on his record, so he’s going to base his reelection strategy on the argument that those in power who are resistant to change are obstructing him from bringing about ‘hope and change’.
He’s counting on the media to trumpet his view and disparage any contrary view, as one motivated by pure selfishness and resistance to changing the status quo.
This is about introducing a new principle into the public discourse. That the majority opinion of the public (or who controls the media and yells the loudest) is what determines what is constitutional and what is not.
Already, liberal pundits are saying much the same thing.
This is the latest progression in post modernism; which posits that there is no way to determine objective reality, as everyone is limited to subjective perception of reality…thus the only barometer of the validity of an opinion is mass consensus. The whim of the mob triumphant.
Thus the Constitution’s words only have the meaning of what the majority of the public momentarily agrees with, and thus “it depends upon what the meaning of is, is”.
It’s a philosophical dagger aimed right at the heart of the rule of law and it champions the triumph of the demagogue.
And the millions of liberal “useful idiots” who shall vote for him, haven’t a clue that in supporting Obama they promote a point of view that will inevitably destroy their liberty and make of them slaves to the nanny state they cherish.
For if words have no meaning beyond the convenience of the moment, then the rule of law is lost and without the rule of law, there is no Constitution.
Lincoln was right; “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
Sheesh, more Lincoln malarkey, a politician that BHO may well be attempting to emulate. If the constitution is supposed to be safeguarding our liberties it’s being almost as successful as the Federal Reserve Bank is at keeping the economy at an even keel. John Adams mentioned that we have a government of laws, not men. He was obviously in error. If that were the case we wouldn’t need elections. Men, personalities, change the course of history regardless of the machinery set up to thwart them. Monster sociopaths like Alexander, Napoleon, Bismarck, Stalin, etc. seize opportunity and shred whatever plan might be in place. Lucky for us, BHO isn’t in that class.
TO: Chuck Martel.
100% correct.
Furthermore, the other mistake made by our founders was in believing that the Constitution actually guaranteed our freedom from government encroachment. It does not. It does, however, lay out the correct and viable plan by which the citizens can retain their liberties and freedoms. But it is up to them, not to the document, to guarantee anything. Ergo: we have a Republic but only if we can keep it.
We haven’t done too well at achieving that objective.
Now, part of the problem is that this guarantee is achieved by the free exercise of the vote and that vote happens in a democratic environment where everyone, productive or not, involved or not, educated or not, vetted or not have been granted the right to vote with equal weight to those that make everything possible. In other words, those that would willingly subjugate the citizenry to their own selfish wishes have come up with a brilliant counter plan or strategy; one that uses our own resources and freedoms, augmented by their masterfully contrived lies and false promises, against us.
These political prestidigitators do this by manipulating those that, because of their own individual weaknesses, their less fortunate status enhanced by their stoked greed andfueld envy would willingly sell themselves (or their vote) to the highest bidder or best liar. By doing so, of course, they allow the founders key concepts to be eroded in the hope that they will get a piece of somebody else’s pie while putting forth minimum effort or risk or simply by ignoring the logical and natural rules that should be allowed to govern the proper functions of these things.
That is what’s been happening for decades and the end result is the continuous election and dogged re-election of politicians that are more concerned with their own personal enrichment than with the proper and fair management of the country. All because we, The People, have chosen to sit idle while anti-freedom ideologues carry on the business of disconnecting us from the original plan.
rafa
“the other mistake made by our founders was in believing that the Constitution actually guaranteed our freedom from government encroachment.”
Guaranteed? If that were true then how do you explain the following comments?
“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government — lest it come to dominate our lives and interests.” – Patrick Henry
A Mrs. Powel of Philadelphia asked Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?” With no hesitation whatsoever, Franklin responded, “A republic, if you can keep it.”
“The price of freedom is eternal vigilance.” by Thomas Jefferson
I see that after being reminded of the context within which Lincoln had to preside and of which you were unable to substantively respond to, you’ve decided to pick yourself up and pretend that nothing happened…
The Constitution is meant to be a legal guide within which the people and their representatives conduct themselves, when a substantial minority actively seek to undermine that Constitution and control the media which is supposed to alert the public, then it is inevitable that we should stray from its principles.
Adams was not in error, especially in the time in which he spoke, but of course a representative democracy is only as viable as its citizens. And in a nation where everyone faithfully followed the law, we would still need elections because two honestly held but opposing views are not at all uncommon.
It’s true that unscrupulous men and women will seek to work around restrictions meant to properly restrain them but so far, our Constitutional system has kept men like “Alexander, Napoleon, Bismarck, Stalin, etc.” from being able to seize the power needed to shred that Constitution. Given other nations history that is a considerable achievement.
B.O. isn’t in that league but if the coming sovereign bankruptcy arrives during his tenure, temporary nationwide martial law will be necessary and none of us would be surprised if he attempted to make Martial law permanent.
I don’t know if Obama plans to run against the SCOTUS. His AG delivered the letter, which basically said (I’m translating here) the President was SWAT and began talking out of his [***]. What he meant to say was . . . .
By the way, just a few days ago, the SCOTUS decided Coleman v Court of Appeals of Maryland, striking down a health care law duly passed by Congress, for being beyond Congress’s constitutional authority. (Holding that section 5 of the 14th Amendment was not authority for Congress to impose damages on states for failure to give FMLA leave to employees to take care of their own health care needs.) So, Obama not only fails to read the law, he doesn’t read the news. Yet, the media will still portray him as a brilliant legal scholar. (Dang, I wish I could be graded on that curve!)
If the SCOTUS finds the individual mandate unconstitutional, the consensus seems to be among health care professionals that Obamacare is essentially gutted.
If Obama’s sole ‘accomplishment’ upon which he devoted his first two years in office, when he had an unassailable majority in Congress with which to pass whatever legislation he wished, goes down in flames…:-) regarding his reelection, what choice does he have but to incessantly paint the SCOTUS’ ruling as illegitimate and morally invalid?
And to do that, doesn’t he have to try to sell the characterization of the SCOTUS as fraudulently defying ‘the will of the people’ and their elected representatives?
Can we ditch the law professor nonsense, once and for all? He was the token urban minority at U Chicago, who occasionally participated in some BS class, undoubtedly on social justice blah blah blah. A few years ago, a real prof there, Richard Epstein, made it clear that Barry was just windowdressing and would never had a prayer at tenure or even a full time slot. Just typical Barry, mau-mauing the Man.
Indeed.
My original reaction was that awarding Barry the category of “scholar” was a stretch. A Professor is more a much better definition; particularly when we remember what most Ivy League “professors” teach these days…
rafa
maybe you ought to read some more, DAN…..window-dreesing doesn’t capture Epstein’s thoughts it’s more the interpretation that you would like to place on them.
Robinson: Would you ever give him tenure at the University of Chicago Law School?
Epstein: No, no, no. Jody Cantor got this story from somebody, but it isn’t true. We did not give Obama a tenured offer. Obama was such an engaging fellow, that we all, including me, would have offered him a tenured track position [not tenured, but leading to tenure if the work is high quality].
We never got to an offer. Obama has a high level of self-knowledge, as much as anyone I have ever met. He realized that he was not cut out for an academic career. It wasn’t what he wanted.
http://easyopinions.blogspot.com/2009/04/richard-epstein-discusses-barack-obama.html#Blog1
That wasn’t the article that I read. But the portion you cite doesn’t give the full flavor of Epstein’s total contempt for Obama, suggesting that Obama is truly a Manchurian Candidate:
Robinson: So, he is like Leonard Nimoy, like Spock, the Vulcan in Star Trek.
Epstein: He basically knows how to keep that shield over his face.
It is almost unnerving to talk to him, because you want to say “I agree with you”, as opposed to having him ask another question so that he can understand your position a little better.
His speech is completely inconsistent with his political record. As a member of the Senate he had the most left wing voting record of anyone there. More so than people like Hillary Clinton. And that is, of course, the way he moves
Obama worked as a community organizer and was in many cases very constructive. He organized public/private partnerships to help the homeless and downtrodden.
But, the difficulty you get, for someone who has only worked in that situation, is that he believes the creation of private wealth is something the government cannot influence or destroy. He has many fancy redistribution schemes, in addition to his health plan and new labor laws, which are all wealth killers.
He is about to engage in a series of proposals to redistribute wealth that we do not have.
Robinson: You are quoted in the Boston Globe, “I like Obama but I reject the suggestion that he is an intellectual. He is an activist merely mimicking the mannerisms of an intellectual.” How good is Obama’s mind?
Epstein: His mind is pretty good, but it is a clever “means-ends” mind. He has never written a scholarly article in his entire life.
Robinson: He was President of the Harvard Law Review but never wrote an article.
Epstein: If he did, it was unsigned and not academically significant.
Robinson: Would you ever give him tenure at the University of Chicago Law School?
Epstein: No, no, no. Jody Cantor got this story from somebody, but it isn’t true. We did not give Obama a tenured offer. Obama was such an engaging fellow, that we all, including me, would have offered him a tenured track position [not tenured, but leading to tenure if the work is high quality].
We never got to an offer. Obama has a high level of self-knowledge, as much as anyone I have ever met. He realized that he was not cut out for an academic career. It wasn’t what he wanted.