John Marshall's fascist jurisprudence

It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.

– Chief Justice John Marshall, Marbury v. Madison (1803)

As the Supreme Court ended a tumultuous week of oral arguments on Obamacare, all of the legal and political pundits are scurrying around like ants, reading and rereading every word of the justices, dissecting every syllable, every verbal inflection; trying in vain to read the tea leaves, to deduce how the court, or more pointedly how the court's swing justice, Anthony Kennedy, will decide the fate of the Obamacare mandate tax/penalty. Many political observers believe that Obama's second term hangs in the balance on how the court will rule on Obamacare – if yes, Obama gets a second term; if no, Obama descends into the abyss of irrelevance next to Andrew Johnson, Herbert Hoover and Jimmy Carter.

In a constitutional republic, as America claims to be, how can such fundamental issues of ultimate concern as the liberty to choose the health care you want for yourself and for your family be forcefully taken from you and replaced with the slave chains of a Marxist, socialist health-care system controlled by legions of new IRS agents and bureaucratic "death panels" that will decide who gets a heart, a lung or a hip transplant and who gets a "pain pill," who lives and who dies? This weighty responsibility will come down to one person – Justice Anthony Kennedy? And we accept this fascist brand jurisprudence without even a whimper!

How did we get here? How did our beautiful Garden of Eden conceived and planted with the life, liberty and blood of our Founding Fathers so quickly devolve into the hellish dictatorship whereby one man – Justice Anthony Kennedy, a Reagan appointee – now possesses the singular fascist power to dictate the fate of almost 315 million America citizens?

In the original Garden of Eden as chronicled in the Bible, three sins caused Adam and Eve to fall, thus dooming all mankind. They are cited in Genesis 3:6: lust of the flesh ("And the woman saw that the tree was good for food"), lust of the eye ("and it was pleasant to the eyes"), pride of life ("and a tree to be desired to make one wise").

Fast forward to 1803, about 15 years after the establishment of the U.S. Constitution, and the first pivotal case by a young U.S. Supreme Court called Marbury v. Madison – a landmark case in United States law and in the history of law worldwide. It formed the foundation for the exercise of judicial review in the United States under Article III of the Constitution. This was the first time in Western history a court invalidated a law by declaring it "unconstitutional" without a demonstration that a particular statue conflicted with the language of state constitutions or federal law.

In Marbury v. Madison we witnesses the greatest power grab in the history of our republic, above even FDR's "New Deal" and LBJ's "Great Society," where the majority opinion written by America's second chief justice of the Supreme Court, John Marshall, forever expanded the court's power beyond the bounds of the Constitution by infusing it with godlike power and authority of "judicial review." In other words, from that point forward in our American constitutional history, a majority of five or more members of this formerly weakest branch of government could invalidate any law passed by Congress and by the state legislatures in any or all of the 50 states it decided was unconstitutional simply because a majority of members on the court didn't like said law – We the People be damned! From that moment onward, the separation-of-powers doctrine became perverted as the court repeatedly usurped unbounded constitutional powers not accorded by the constitutional framers.

Lord Acton answered such unbridled power in a famous aphorism, "Power corrupts, but absolute power corrupts absolutely."

Seventeen years after the Marbury v. Madison case, in an 1820 letter by Thomas Jefferson to his friend, William C. Jarvis, one can still see the havoc Chief Justice Marshall caused to the Constitution and against America:

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction]. … The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.

An interesting historical connection exists between Marbury v. Madison and the Obamacare cases regarding conflict of interest: President Adams ordered John Marshall to deliver the judicial commissions the day before Jefferson took power (March 4, 1801); however, Marshall was both a recently appointed chief justice of the United States and continued as the acting secretary of state.

Likewise, Elena Kagan, who as solicitor general acted on behalf of the Obama administration in multiple federal appeals courts, this week showed up to hear the arguments and stubbornly refused to recuse herself from judging the Obamacare cases, even though she had cheered enactment of the law as an Obama political appointee and had personally assigned her top deputy in the Obama Justice Department to defend the law in federal court.

A federal law, 28 USC 455, says a Supreme Court justice must recuse from "any proceeding in which his impartiality might reasonably be questioned" or anytime he has "expressed an opinion concerning the merits of the particular case in controversy" while he "served in governmental employment."

Here is the conclusion of the matter. Either the Progressive Revolution will prevail or the U.S. Constitution will prevail, but they can no longer coexist. Universal anything is essentially outside the parameters of legitimate constitutional jurisprudence, but within the realm of a dictatorial Marxist or Nazi state.