Thru Teh Looking Glass


[The 'duly elected' POTUS:]
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”

unprecedented, extraordinary: 158 times.
strong majority: “Cornhusker kickback” “Louisiana purchase” “Florida flim-flam.” Stupak “pro-life” deal :: [Senate] 219-212, with 34 Democrats joining all Republicans in opposition

[Fifth Circuit Court of Appeals Judge Jerry] Smith: “I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.”

[Thom Lambert, one of Obama’s former law students at Chicago:]

“President Obama taught “Con Law III” at Chicago. Judicial review, federalism, the separation of powers — the old “structural Constitution” stuff — is covered in “Con Law I” (or at least it was when I was a student). Con Law III covers the Fourteenth Amendment. (Oddly enough, Prof. Obama didn’t seem too concerned about “an unelected group of people” overturning a “duly constituted and passed law” when we were discussing all those famous Fourteenth Amendment cases – Roe v. Wade, Griswold v. Connecticut, Romer v. Evans, etc.) Of course, even a Con Law professor focusing on the Bill of Rights should know that the principle of judicial review has been alive and well since 1803, so I still feel like my educational credentials have been tarnished a bit by the President’s “unprecedented, extraordinary” remarks.”

[Marbury v. Madison]
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

…the dictum explaining the duty of the court to rule a statute unconstitutional if it was in conflict with the constitution was sound, as far as it went. The problem was that it left the impression that this was the exercise of a power of the court that only the court had. The misleading statement was, “It is emphatically the province and duty of the judicial department to say what the law is.” It is misleading because it connotes that as the “province” is is exclusive of the other departments. The logic of constitutional republican government is that everyone, not just the courts, and not just public officials, has the duty to enforce the law, and, where conflicts in the law arise, resolve those conflicts and apply the correct law. When one of the laws in conflict is the constitution, then the duty is of constitutional review, which is only judicial review when it is judges that happen to do it. It is not an exclusive power of the courts. It is a duty of everyone subject to the Constitution.


  1. bocopro
    Posted April 5, 2012 at 9:45 am |

    Only morons and megalomaniacs believe they fully understand all things. The greatest arrogance is believing that one’s own understanding of something as complex as the government of the United States is the best and only understanding worth considering.

    Put another way, the epitome of hubris is reached when one becomes convinced he is never wrong. Once someone has entered that plane of existence, the only thing left to do with him is fly him back to Kenya in the jaws of a pterodactyl.

  2. Jess
    Posted April 5, 2012 at 10:29 am |

    Eric turned in his homework assignment. I’ve only heard some pieces of it, but I have the feeling he might get an “F”.

  3. Jess
    Posted April 5, 2012 at 10:47 am |

    I read Eric’s letter. In short:

    Yada, yada, yada, yada….the President didn’t say what you thought he said, even though he did.

    “…The President’s remarks were fully consistent with the principles described here in….”

    Love Eric

  4. DougM (jackassophobe)
    Posted April 5, 2012 at 12:35 pm |

    He’ll say what he needs to say to make his little fantasy world work.

    Watch what happens when Obamacare is threatened in Congress. They’ll run off to the SCOTUS to have a repeal vote ruled unconstitutional.

  5. geezerette
    Posted April 5, 2012 at 12:49 pm |

    This will prove what an old out of date document the constitution is– it doesn’t pertain to anything happening today.

  6. Merovign
    Posted April 5, 2012 at 2:28 pm |

    He doesn’t care. I would think it would be obvious at this point that he just says whatever he thinks will help him at the moment, always has, always will.

    And if it’s a lie, more’s the better, because like every emo, oppositional-defiant perpetual teenager, a lie told makes him feel superior on the assumption that he “got over” on someone.

  7. mech
    Posted April 5, 2012 at 9:08 pm |

    Bobbing and weaving until the election is past so he can exercise more of that flexibility.

    Will that include making all the czars SCOTUS members?

    Somebody else tried that in the last century to attempt some rule changing. but it failed. ..

  8. Ironic in Denver
    Posted April 5, 2012 at 9:35 pm |

    I’m torn between wondering whether the babble he comes out with indicates:
    a) he’s desperate and coming unraveled, or,
    b) he knows the public is so easily bamboozled that he can get away with it.

    If it’s the latter, I fear we are done, so I’m hoping for the former.

  9. Spin
    Posted April 6, 2012 at 1:57 am |

    ^Ironic in Denver,^

    He thinks the latter and is clueless to the former. IMO

  10. ZZMike
    Posted April 6, 2012 at 4:19 pm |

    “… a law that was passed by a strong majority of a democratically elected Congress.”

    As I pointed out somewhere else, it was passed in the middle of the night, without anybody having read all of it.

    And he really meant “Democratically elected”.