Judicial Review

Mike Huckabee, The Supreme Court, And The “Supreme Being”!

Former Arkansas Governor Mike Huckabee, a candidate for the Presidency, and a former preacher as well, is going off the deep end in his vehement opposition to gay marriage.

Apparently, Mike Huckabee believes that the American people do not need to obey judges and the federal courts, and the Supreme Court, if they do not like or agree with their decisions.

If Barack Obama were to say this, he would be pushed toward impeachment, but Mike Huckabee is promoting disobedience of the judiciary, and shows total ignorance of our legal history!

What he is advocating, taken to its extreme, would mean that the Citizens United case would be ignored, and that billionaires would not be able to distort our election process, something any sensible person would advocate, but the only way to overcome this is by constitutional amendment!

So if gay marriage is made legal in all of America at the end of June, the only way to overcome it is to bring about a similar constitutional amendment.

The same goes for those who are upset about interracial marriage, civil rights laws, the lax enforcement of the Voting Rights Act, racial integration, and a whole host of other “objectionable” decisions made by the courts and the Supreme Court over 226 years of our history!

Mike Huckabee demonstrates his ignorance of our history, and of the significance of Chief Justice John Marshall, and of “judicial review” and the famous Supreme Court case, Marbury V. Madison in 1803.

Presidents, including Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, Franklin D. Roosevelt, Dwight D. Eisenhower, Richard Nixon, Ronald Reagan, Bill Clinton, Barack Obama, and really ALL Presidents; and many other government figures over the years; and citizens of America throughout its history, have denounced Supreme Court decisions!

BUT the only alternative is a constitutional amendment, ladies and gentlemen, and for any Presidential candidate or President to call for defiance of the Supreme Court is grounds for impeachment and removal from office.

In America, the Supreme Court is the final arbiter, good or bad, and really, it is both, depending on the issue and how people perceive it!

We are NOT a theocracy, and the “Supreme Being”, that Mike Huckabee advocates, is NOT the final arbiter of constitutional cases, and never has been! Thank goodness for that, as it would take away the democracy that America has evolved into over more than two centuries of American history!

Conflict Between Presidents And Chief Justices Quite Common Historically

It is well known that President Barack Obama and Chief Justice John Roberts do not have a warm relationship, with Roberts chosen by George W. Bush, with Obama voting against his confirmation, and with the two men having totally different ideological views. Despite that, and the annoyance of Roberts over Obama’s condemnation of the Supreme Court for the Citizens United case of 2010, Roberts saved “ObamaCare” in June 2012, legitimizing it for the future, and gaining the anger of Republicans and conservatives. Who can say for sure how the relationship between Obama and Roberts will develop in the second term, and whether Roberts will surprise with more support of the administration than just the health care issue?

But the fact of their antagonism is not new in American history, as it is actually quite common that the Chief Justice is picked by a President of one ideological view, and will often clash with a future President of another party during his tenure on the Court.

The examples of such antagonism, far worse than the Obama-Roberts relationship, follow:

Thomas Jefferson and Chief Justice John Marshall (appointed by John Adams), on the Marbury V Madison case of 1803, dealing with Judicial Review. They were also distant cousins, who personally disliked each other.

Andrew Jackson and Chief Justice John Marshall (appointed by John Adams), on the removal of the Cherokee and other Indian Tribes after the Worcester V. Georgia and other similar cases in the 1830s.

Abraham Lincoln and Chief Justice Roger Taney (appointed by Andrew Jackson), over the Dred Scott V Sanford case in 1857, and the President’s use of war powers during the Civil War years until Taney’s death in 1864.

Franklin D. Roosevelt and Chief Justice Charles Evans Hughes (appointed by Herbert Hoover), over Supreme Court decisions during the New Deal years, and specifically FDR’s Court “Packing” Plan in 1937.

Richard Nixon and Chief Justice Earl Warren (appointed by Dwight D. Eisenhower), who Nixon had criticized in earlier years, and were rivals in California politics,and Warren trying to leave office under Lyndon B. Johnson, so Nixon would not replace him, but unable to do so due to controversy over Johnson’s nomination of Associate Justice Abe Fortas in 1968, leading to rejection, and Warren’s replacement, Warren Burger, being chosen by Nixon in 1969.

Bill Clinton and Chief Justice William Rehnquist (appointed by Ronald Reagan), who had major disagreements on policy, but Rehnquist conducted himself well at the Bill Clinton Impeachment Trial in 1999.

So the antagonism and rivalry of Presidents and Chief Justices is nothing new!

Birthday Of The Most Misunderstood And Underappreciated Founding Father: Alexander Hamilton!

On this day, January 11, in either 1755 or 1757, depending on which historical records one believes, Alexander Hamilton was born in the British West Indies.

Hamilton went on to a life of success, migrating to the American colonies, serving George Washington in the American Revolution, being a delegate to the Continental Congress and the Constitutional Convention of 1787 in Philadelphia, becoming President Washington’s first Secretary of the Treasury, founding the first political party (the Federalists), and promoting what has become the “liberal” interpretation of the Constitution (although it was termed “conservative” at the time).

Hamilton was always controversial, outspoken, opinionated, egotistical, and had so called “skeletons in his closet” regarding his financial and love lives.

But he saved the country during its early years under George Washington with his policies of paying off the national and state debts. He developed the broad interpretation of the Constitution, utilized later by Chief Justice John Marshall and the Supreme Court in the doctrine of “judicial review”. He developed the US Mint; the US Coast Guard; emphasized the importance of manufacturing and industry in the American economy alongside agriculture; started the Bank of New York; and developed the oldest continually published newspaper in America, the New York Post.

Hamilton would be tragically killed by Vice President Aaron Burr in an infamous gun duel in New Jersey in the summer of 1804, dying at the young age of 47 or 49, and remains one of the tragic losses of a young politico, alongside John Kennedy, Robert Kennedy and Martin Luther King, Jr. among others.

It is hard to imagine how America would have evolved without the contributions of Alexander Hamilton!

Newt Gingrich’s Attack On Activist Judges: Hypocrisy, Since Only Against Progressive “Activists” But NOT Conservative “Activists”!

Former Speaker of the House Newt Gingrich is already showing signs of decline from his “surge” two weeks ago!

Not soon enough, as Gingrich is declaring “war” on “activist” judges, but is totally hypocritical in that he is only attacking “progressive” activists, and not “conservative” activists!

He would wish for a court system which was one sided, only promoting conservative advocacy, and setting America back to the 19th century Gilded Age!

He claims to know history, since he has a History Ph.D. from Tulane University in European History, but he boasts too much of his knowledge about American History and the American Constitution!

If it was up to Gingrich, he would wipe out Warren and Burger Court decisions that have transformed this country politically and socially, and really would wish to wipe out the “judicial review” established by the Supreme Court under John Marshall in the early 19th century!

To claim that only “progressives” are activists is totally ridiculous, as ALL Justices are “activist” in different ways, as they are INTERPRETING the Constitution, which is meant to be a “living” document, adaptable to changing times!

Just one example of conservative “activism” on the Supreme Court is Bush V Gore, where the conservative majority Court in 2000 decided to intervene, stop the ballot recount in Florida, and decided the Presidential Election Of 2000. What gave them the right to do that? And look at what it led to, eight years of foreign and domestic disasters that will reverberate for many generations on our nation!

So Gingrich, as usual, is acting as a demagogue, also demonstrated by his demand that lower federal court judges be required to explain their decisions to the Congress in committees, or be arrested! What a revolutionary, radical grab of power such a requirement would be!

Presidential Challenges To The Power Of The Supreme Court: From Jefferson To Obama

As the author reflected on yesterday, the 150th Anniversary of Abraham Lincoln’s inauguration as President of the United States and his taking the oath of office from Chief Justice Roger Taney, he thought of the tremendous rivalry which existed between the Taney Court and Lincoln regarding the Dred Scott Case of 1857, which asserted that a slave was property and could be taken anywhere in the nation by his or her slave owner.

And the recognition of rivalry and opposition by many Presidents to the Supreme Court during their terms of office came to mind.

Thomas Jefferson was a great rival of his cousin, Chief Justice John Marshall, and bitterly opposed the Court’s decision in Marbury V. Madison, which established the concept of judicial review. Jefferson also tried very diligently to remove Associate Justice Samuel Chase by impeachment from the Supreme Court, which ultimately failed in 1805.

Abraham Lincoln bitterly disagreed with the Dred Scott V. Sanford case of 1857, and was a constant rival of Chief Justice Taney during the years of the Civil War, as Taney and his Court made efforts to weaken Lincoln’s war powers until his death in 1864, an event applauded by many members of Lincoln’s Republican Party.

Theodore Roosevelt often spoke of the need to transform the Supreme Court, and specifically called for a constitutional amendment to limit the tenure of Supreme Court Justices while campaigning on the Progressive Party line in 1912, and was critical of Supreme Court decisions that he thought were bad for the nation.

Franklin D. Roosevelt was highly critical of Supreme Court decisions that limited the New Deal programs, and advocated a “reorganization” of the Court in 1937, which would permit the appointment of six new Justices, one for each Justice over the age of 70, a plan called an attempt to “pack the Court” by its critics who defeated it.

And now, Barack Obama has been highly critical of the Supreme Court in the Citizens United Case, which certainly both Roosevelts would have joined him in opposing the unlimited power of corporations to contribute to political campaigns, an idea which became law in the Progressive Era, and now has been upended after nearly a hundred years by the John Roberts Court!

So challenges to the power of the Supreme Court have occurred under many Presidents, and most specifically, under those in the past considered to be among our greatest Presidents–Jefferson, Lincoln, TR, and FDR. Barack Obama is joining great company indeed!