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Archive for January, 2011


In 1803, Chief Justice of the Supreme Court John Marshall wrote a majority, five to nothing, decision in the case of Marbury v. Madison.  The nature of the case was not as important as Chief Justice Marshall’s previous position as Secretary of State under President John Adams.  Both were Federalists.  After losing the election of 1800 to Thomas Jefferson, Adams nominated Marshall to the Supreme Court as Chief Justice on January 20, 1801 – two months before his term expired; subsequently he received the consent of the Federalist controlled Senate and was sworn in.

After being sworn in as President, Jefferson appointed James Madison (Marbury v. Madison) as Secretary of State.  Again, the case itself is of little importance except that it allowed Marshall to include in the majority opinion, “Judicial Review”.  This was the opinion that even though the Constitution did not provide specifically for the Supreme Court to declare an act of Congress or actions of the Executive Branch unconstitutional, that if a law or action was contrary to or not empowered by the Constitution, it could be declared unconstitutional.  Neither the Executive Branch nor the Congress did anything about this power grab, which effectively made the judiciary superior to the other branches, because it now had the last word.  What exacerbated this decision was that it extended to the States.  Acts of state legislatures could also be struck down as being unconstitutional, making the Supreme Court and inferior courts, a branch of the federal government, superior to the States, individually or as a union.  Some would say that this was not a power grab, but it did elevate the Supreme Court as superior to the other two branches and the states under the theory of checks and balances.

If we accommodate a Supreme Court of five jurists at that time, and now nine jurists from 1869, making decisions of constitutionality, at least we have a panel of jurists with varying opinions voting.  What is unconscionable is that judges of inferior courts, individuals, now routinely declare acts of entire legislatures and constitutional referendums, whether it be from the States or Congress and even of the citizens of States, as unconstitutional – one person can do this?

Just recently a federal judge declared that the military must eliminate its “Don’t Ask Don’t Tell” policy and thus was attempting to force the military to change to an openly gay policy.  Whether you like the policy or not, should one unelected jurist be allowed to possibly have a detrimental effect or any effect at all, on our armed forces and our national defense structure?  Should one jurist decide how our military is structured?

This decision was appealed – reversed – and stayed, but ultimately “Don’t Ask Don’t tell” is now a law of the past.  One must ask why this case was in an inferior court, since the Constitution stipulates that the Supreme Court is the court of original jurisdiction in cases involving the Federal Government and States, among other cases.

Back to John Marshall’s opinion: the real root importance of the Marbury v. Madison case was an attempt by Marshall, a staunch Federalist, to stick it to Thomas Jefferson, his political enemy.  Yet, now we have given progressively trained, individual jurists supreme power over the States, Congress, and the Executive Branch – this incredulous situation was never intended by the founders.  The separation of powers among the three branches of the federal government and the equality of the branches started to unravel as early as 1803.

This decision, “Judicial Review”, made the Supreme Court unequal and superior to the other branches.  No longer did a check on the authority or decisions of the Court exist.  Congress and the Executive Branch were now junior partners.  The Court was now able to remake our Constitution, write law, and at times enforce the law.  The tearing apart of our Constitution had begun.  For more on this go to FindLaw to learn about the history of judicial review.  For more on the history of Marbury v. Madison go to “John Marshall’s Judicial Mind”.

This is an excerpted chapter from U.S. Constitution: “Sine Die” a sixteen chapter book-blog on how the constitution has been marginalized, abused, or just ignored to build an all powerful federal “central” government.

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You may not hear this tonight from either side of the isle, so I thought I would summarize the current state of the union.

Our economy still struggles, but is picking up steam, but unemployment remains unacceptably high. How can the economy pick up steam and yet unemployment is a serious laggard? The Obama administration simply does not no how or does not wish to address the issues keeping unemployment high. Once you take a hard look at this administration, you will see that no one in the power level has ever built a business and through growth hired people – not even the GE Chairman, Jeffrey Immelt.

The Obama administration has been heaping hurdles and regulations on small businesses for two years, and since the small business segment creates 70% of the jobs, they will not hire. No small business owner will hire if he or she is faced with hire unemployment costs – yes “unemployment” costs. Businesses pay into the unemployment fund based on their experience level with unemployment – they are rated on how many have left the business and are in or have been in the unemployment income collection system. Extend unemployment for a year or two and your increase the rating for the business and its expenses.

Require small businesses to provide health insurance and you again increase their costs, thus they do not hire. Their are countless regulations adding cost to small businesses and when the future bottom line inclusive of future expenses is forecast, they do not hire.

Congress, regardless of which party is in power in each house will not make government smaller and more limited.  Ever since the seventeenth amendment was passed taking the appointment of senators from the states and giving the election of senators to the people of the various states, the states cannot control an out of control ever growing self perpetuating federal “central” government.  A little over one hundred years ago, the states could vote down unconstitutional growth in Washington, D.C.

Today, the states just stand by and wish the federal government would follow the eighteen enumerated powers it has in the Constitution.  Unless and until outside forces, such as the states are allowed to apply pressure on the Congress, it will just continue feeding on itself.  We no longer have a free market system and we can no longer call what we have capitalism, because the federal government has intruded for one hundred years, inhibiting how the free market is supposed to operate.

The Supreme Court no longer considers issues based on the law and the written Constitution.  Instead it relies on social interpretation of what is needed, believing itself to be a law making body.  It considers laws of other nations when it decides our legal issues of the day.  These are laws not made by any elected U.S. Senator or Congressman, but this is okay, since they believe that other nations are more enlightened.  Maybe it is the Court that need to be enlightened!  It has used the “Commerce Clause” to turn the limited federal government into an unlimited central planning socialist type of governance.

The Executive Branch now routinely writes regulations with the force of law.  I believe we will have to rename the executive branch – “Congress Lite”.

I would go on, but the list of things gone wrong is too depressing to continue.  You get the idea – the state of the union is dismal and in need of immediate repair by the citizens of this nation – who else will fix the problem?

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