Constitutional Law 090 for President Obama: The Federalist Papers (#78).

[Draggingtree]

RedState:

 

 

 

Constitutional Law 090 for President Obama: The Federalist Papers (#78).

 

 

Posted by Moe Lane (Diary)

 

Tuesday, April 3rd at 9:30AM EDT

 

You probably remember yesterday’s post by RedState’s Leon Wolf about how the President’s bizarre commentary on the Supreme Court (essentially, Barack Obama seems to think that constitutionality is in the eye of the supine legislature whose members promptly got decimated in the next Congressional election) demonstrates pretty much an explicit disdain for, and rejection of, the very doctrine of judicial review. Leon finished by saying “…if any Republican had said this, the media would be busily trying to paint them as an uneducated rube who was unaware of Marbury v. Madison - when Obama says it, it’s presented as a thoughtful defense of his brilliant law.” Fast forward to the NY Sun (H/T: Glenn Reynolds), whose own appalled look at the utter inanity of what Obama said – their editorial title “Ex Parte Obama,” given the subject matter of the post, is actually a rather serious accusation, in context – went down similar but distinct lines:

 

It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an “unelected group of people” who might “somehow overturn a duly constituted and passed law.” This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton. It is the essay in which Hamilton, a big proponent of federal power, famously described the Court as “the weakest of the three departments of power.”

[SrWoodchuck]

Great post, @Draggingtree

 

From Federalist Papers (#78) (-all highlighting is mine):

 

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

 

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

[ Four judges are already subordinated by the executive & in league with the legislative - my assertion]

.....the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts.

 

Obama studied constitutional law in order to abrogate it, deform it & bend it to the will of progressive usurpers of our American Republic. That he is considered a Professor of Constitutional law is a travesty & a fraud on American Jurisprudence.