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.

The Hutaree Militia and Aaron Burr

The government case against the Hutaree militia, according to Andrew Brietbart's "Big Journalism" blog, is quickly unraveling.

The news told us several weeks ago that the government had foiled in the nick of time a diabolical plot to assassinate law enforcement officers. This plot was cooked up in the Michigan backcountry by a "Christian right wing militia."

On TV, the United States attorneys and FBI agents almost always try to get their ducks in a row before proceeding. They want an airtight case and exude professionalism. In this case, Special Agent Leslie Larsen was unable to answer questions about the case and had failed to bring her notes with her. United States District Court Judge Victoria Roberts denied a motion that the group be held without bail.

The judge, defense, and anyone paying attention must be shocked at the inability of an agent in charge to answer even simple questions about a case that was supposedly thoroughly investigated. The judge expressed her shock and indignation before setting bail.

Hutaree members face charges of conspiracy, among other things, for discussing the murder of police officers. Defense attorneys pointed out that laughing and joking indicated an element of fantasy, to which Agent Larsen agreed. But she countered with the statement that killing police officers is not a joking matter.

She is right. Few people would find that funny that anyone would advocate the killing of law enforcement even in jest. So why weren't rap groups in the 1990s arrested and charged with the same crimes? They openly proclaimed that their listeners should go kill police officers at a time when urban violence was rising. Threatening police officers is no laughing matter and nothing that a sane individual ought to joke about. Nor should they sing (if rapping is considered singing) about killing police. That being said, the First Amendment protected the right of rap groups in the 1990s. Unless the government has more substance to their case, the Hutaree will be freed as well.

In the early 1800s, Aaron Burr had a run of self-induced bad luck. He stabbed Jefferson in the back and tried to steal the presidency from him in an Electoral College mishap. Burr then fatally killed Alexander Hamilton in a duel. His last gasp at some kind of influence and power lay to the West. Burr planned to go to what was then Mexico, seize land there, then establish his own empire. Many in the U.S. thought Burr wanted the newly acquired Louisiana Territory and New Orleans. We now know he didn't, but speculation back then ran wild.

President Jefferson still nurtured hatred for Burr. He declared Burr a traitor and had him arrested on those grounds. Burr was taken to Richmond to be tried in federal district court for treason. The government's only proof of a treasonous mindset was the Jefferson declaration. Otherwise, Burr was merely collecting guns and money, abiding by the laws of the United States such as they were.

Chief Justice John Marshall presided over the district court. He gave the court's opinion to the jury before it retired. It found Burr not guilty. Burr was found not guilty because the mere statement by the executive branch that a person or persons is/are guilty of treason is not enough to form evidence. Biographer Jean Edward Smith wrote "He had no affection for Burr, especially after the death of Hamilton, yet he was determined that the text of the Constitution be adhered to."

Under Obama the government has been issuing increasingly hostile statements about the gathering storm of anger against it. It warned the country that gun owners, veterans, and others might grow dangerous. Now we see the arrest of nine people based upon, what looks like right now, stupid jokes.

In the Hutaree case, we either see a real example of a conspiracy that was fumbled by an incompetent FBI agent or an incident of government action due to the fact that these people happen to dislike those in charge of their government. Either way, the Justice Department has a lot of explaining to do on this case.