Thursday, April 5, 2012

How the Obama Administration Once Again Gets Marbury v. MadisonWrong

A quick read of Attorney General Eric Holder's statement to the 5th Circuit once again shows that the nation's most influential lawyers fail to understand Marbury v. Madison (1803)

He asserts that the United States Supreme Court cannot overturn duly passed legislation unless there is a very clear violation of a specific constitutional principle. Marbury is one of the cases cited within the document.

Marbury itself, however, is based upon a constitutional interpretation more than a clear violation. Chief Justice Marshall interpreted a clause in the Judiciary Act of 1789 to be unconstitutional because it gave the Supreme Court original jurisdiction in cases of writs of mandamus (orders to government officials to do their job.) Marshall saw no specific phrase in the Constitution that would have permitted that. He reasoned that Congress committed an overreach.

The Commerce Clause simply says this: that Congress has the power to "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" It was meant to keep states from erecting trade barriers against each other.

So Holder includes Marbury among his citations, even though it establishes an interpretational, not absolute, basis for judicial review and a strict construction of the original seven articles.

The attorney general's response has left the courts no room to support him, now that his statement is on the record. To preserve their judicial review authority, federal judges need to strike down the law in question. In this case, I mean the 5th Circuit (which they likely will.) By extension, this includes the Supreme Court.

Marshall's interpretation in Marbury was made in part to prevent the judicial branch from becoming subordinate to the executive. The Roberts Court may have to assert itself similarly until Obama is gone.

Is the Stop Online Piracy Act Back Under a New Name?

Ty Clifford of the new Journal Five blog in the above story reports on the re-emergence of the Stop Online Piracy Act, also known as SOPA. An internet campaign killed it last year. Could it, like an unwanted weed, be popping back up again this spring under a new name?

Wednesday, April 4, 2012

B*******t Article I Have Ever Seen: Hats Off to Samantha Brick

You may or may not agree that she is stunning. She is definitely much prettier than average.

And apparently the world now hates her.

The Daily Mail (Great Britain, not Charleston) posted a story the other day written by Samantha Brick. In the story, she candidly discussed her social problems related to being considered attractive at her age.

Of course such a display of honesty has inspired thousands of angry, hateful, and indignant responses from anonymous readers.

Really, how dare a pretty woman say that she is gorgeous and that it causes her female friends to hide their husbands. She may have too high of an opinion of herself, or maybe not. In any case, people definitely have a perception that she is very attractive or she wouldn't have written the piece.

Fact is that this is one of the ballsiest op-eds I have ever read, pardon the expression. It is inevitable that this will attract hatred. Frankly, it seems that people care more about her sassy blonde mug than the fact that the British are about to impose a sophisticated digital spy program on the public.

Sure, Big Brother is on his way, Great Britain, but let's complain about the uppity cute chick.

This was not written tongue in cheek either. It's not often that you see someone personally put themselves out there to be smacked around by their reading public.

It's John Marshall's Fault!

Barack Obama has found a new enemy is his war on, well, anything that seeks to check his power.

This time, his foe is the United States Supreme Court . . . of 1803.

Several recent statements from the president seem to indicate that he does not accept that the high court has the legal authority to find laws unconstitutional. All constitutional scholars, save Obama, agree that the Court assumed this power in the decision Marbury v. Madison.

In that case, the John Marshall Court ruled unanimously that it could find federal laws unconstitutional. Some years later, it assumed that power over state lawmakers as well. This authority was traditional in English law.

This decision formed the basis for first, the equality of state and federal power, but later, the central authority's dominance. In other words, without this power to strike laws down as unconstitutional, the federal government would never have prevailed in its struggle with states over who had preeminent authority.

The Supreme Court has to strike a balancing act at times. When it's decisions are popular, it is seen as a bulwark against popular passions. Its opponents usually complain that it is undemocratic. Obama complains that it is about to strike down a duly passed law by Congress (which everybody knows was spanked by an angry electorate in the subsequent election.) In the 1950s, it invalidated duly passed laws by state legislatures that kept blacks and whites in separate schools.

Obama seems to have completely lost his moorings. His assertion that the Supreme Court cannot invalidate his law caused the 5th Circuit of the federal court to take the unusual step of asking the Justice Department if Obama was denying the power of judicial review.

It is in the president's power to cause a constitutional crisis, by simply ignoring the ruling of the Court. Andrew Jackson did so in the 1830s when he seized Cherokee land. Abraham Lincoln ignored a judicial order out of fear that Maryland might rebel against the Union.

No other president has done so. Franklin Roosevelt came close, but incurred public wrath as a result.

These are the death rattles of a rapidly discombobulating presidency.

Tuesday, April 3, 2012

It's Just Good Capitalism

Huffington Post bloggers lost their multi-million dollar lawsuit last week against AOL Inc.

AOL paid out hundreds of millions to Post founder Arianna Huffington. She declined to share any proceeds with her writers, who contributed for free. AOL Inc. also offered no money.

Huffington and AOL Inc. played this like good capitalists. Huffington created and shaped a market for left wing news and analysis. She brought in writers whose content helped to build her blog into one of the most prominent and respected outlets in the media world. The Post was a model for other online entities looking at ways to monetize news. runs in a similar fashion on the right.

The Huffington Post gave those writers exposure to a broad market, but never promised compensation. Its business model allowed for the founders to make scads of money using writers willing to put out a few hundred words for the experience and exposure alone. This is why traditional print is dying out!

All of this was very clear. So why the outrage among writers?

They are liberals and leftists and do not understand the business model. This lawsuit comes from hurt feelings more than anything else. Huffington sold them a left wing bill of goods. Her Post was to be a bastion of anti-free market intellectuals who would rail against corporate greed. They believed the hype and the hypocrite.

Huffington had no legal reason to share anything, however, she exposed herself and her former publication to charges of at least moral double-dealing. She fought the free market system, then profited immensely off of that fight. Her writers had no right to expect compensation, though. This blemish goes on her Machiavellianism and their naivete.

Conservatives can wake up with a clean conscience because they are honest in this sense. There is an understanding that a business exists to make a profit that will reward its investors and owners, as well as anyone else directly employed. A conservative writer, if he felt like he deserved to be paid for his work, would go out and find someone willing to pay. He or she would not gnash their teeth when they did not get a handout.

The Huffington Post will not suffer for this. They have built a strong reputation as a reliable news outlet. Their credentials as good leftists, however, are gone forever.

Monday, April 2, 2012

Judge Rules That States Cannot Ban Guns During Periods of Emergency

In yet another ruling that emphasizes that the Constitution still exists during a time of emergency, a federal court struck down city actions against gun owners during a winter storm in 2010.

During that period the city of King, North Carolina announced, as was allowed by state law, that carrying a gun outside of one's home was illegal. Two residents sued in federal court and won. The court did stop short of ruling the law unconstitutional, however.

Emergencies, as we saw in New Orleans, are when individuals are most vulnerable. The state cannot protect everyone, especially when services and infrastructure break down. People need to be safe everywhere, not just within their walls. If outlaws know that police are unable to respond and that people cannot carry guns, they will be more brazen in their violence.

The federal court should have struck down the statute completely. Our Constitution does not have any general provision for states of emergency, only invasion or rebellion. There is a reason for that