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U.S. Constitution
See other U.S. Constitution Articles

Title: Matthew Whitaker is a crackpot
Source: Washington Post
URL Source: https://www.washingtonpost.com/opin ... ry.html?utm_term=.1c9961eb80ad
Published: Nov 9, 2018
Author: Ruth Marcus
Post Date: 2018-11-09 11:06:57 by Willie Green
Keywords: None
Views: 415
Comments: 17

The acting attorney general of the United States is a crackpot.

Matthew G. Whitaker, installed in the job by President Trump to replace Jeff Sessions, was asked in 2014, during an ill-fated run in the Republican senatorial primary in Iowa, about the worst decisions in the Supreme Court’s history. Whitaker’s answer, to an Iowa blog called Caffeinated Thoughts, was chilling.

“There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Reasonable people can differ over the constitutionality of the Affordable Care Act. Maybe there’s some space to debate the New Deal-era cases that cemented the authority of the regulatory state. But Marbury? This is lunacy. For any lawyer — certainly for one now at the helm of the Justice Department — to disagree with Marbury is like a physicist denouncing the laws of gravity.

Decided in 1803, at the dawn of the new republic, Marbury v. Madison is the foundational case of American constitutional law. It represents Chief Justice John Marshall’s declaration that the Supreme Court possesses the ultimate power to interpret the Constitution and determine the legitimacy of acts of Congress.

In Marshall’s famous words, “it is emphatically the duty of the judicial department to say what the law is.” The untested new Constitution provided that the Supreme Court possessed the “judicial Power of the United States,” but it did not define what that power entailed.

President Trump is treating the midterm elections like a mandate to do what he wants. He does not quite have it, says columnist Dana Milbank. (Gillian Brockell, Kate Woodsome, Breanna Muir/The Washington Post)

“With one judgment . . . Marshall would chisel judicial review into the American system,” Cliff Sloan and David McKean explain in their book, “The Great Decision.” The ruling, “asserting clearly and unequivocally that the Supreme Court did indeed possess the power to strike down an Act of Congress as unconstitutional . . . laid the foundation for the American rule of law.”

This is not a controversial position, at least in mainstream legal thought. On occasion, Supreme Court nominees, including Antonin Scalia and Neil M. Gorsuch, declined to state their agreement with Marbury. But this coyness is not because they differ with the ruling; rather, it is because they fear stepping onto the slippery slope of assessing past cases.

More commonly, Marbury is the uncontested subject of lavish judicial praise. Chief Justice John G. Roberts Jr. endorsed it during his confirmation hearings, and expanded on that view in a 2006 C-SPAN interview. Marshall’s decision meant “we have the courts to tell what [the Constitution] means and what’s binding on other branches,” Roberts said, “and that important insight into how the Constitution works has been, I think, the secret to its success.”

But if you think, as Whitaker seems to, that Roberts is too much of a squish (“he’s not a good person to point to when it comes to actually just calling balls and strikes in practice,” Whitaker said of Roberts in the 2014 interview), consider Roberts’s predecessor as chief justice, William H. Rehnquist. In his book on the Constitution, Rehnquist described Marbury as “the linchpin of our constitutional law.”

Or consider Justice Brett M. Kavanaugh’s comments during his confirmation hearings, describing Marbury as among the “four greatest moments in Supreme Court history.” Kavanaugh offered a more extended defense of Marbury in a 2014 Notre Dame Law Review article. “It’s my submission,” Kavanaugh wrote, “that Marbury v. Madison continues to mark the proper approach for constitutional interpretation.”

Yet we seem to have, as the nation’s chief law enforcement officer, a man who begs to differ. Is this still his position? If so, how does that view — that the court in Marbury was too assertive in exercising its power — square with Whitaker’s simultaneous beef that the court was inadequately assertive in striking down laws during the later New Deal era and when dealing with the Affordable Care Act?

That’s not the only troubling question about Whitaker. During a 2014 Senate debate sponsored by a conservative Christian organization, he said that in helping confirm judges, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.”

At that point, the moderator interjected: “Levitical or New Testament?”

“New Testament,” Whitaker affirmed. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”

Marbury was wrong. Religious tests for judges. If you thought the big worry about Whitaker was how he would handle special counsel Robert S. Mueller III, that might be just the beginning.

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#1. To: All (#0)

Willie Green  posted on  2018-11-09   11:12:31 ET  Reply   Trace   Private Reply  

#2. To: Willie Green (#0)

The untested new Constitution provided that the Supreme Court possessed the “judicial Power of the United States,” but it did not define what that power entailed.

Correct. The U.S. Supreme Court simply seized that power for themselves. That can't be questioned?

misterwhite  posted on  2018-11-09   12:35:49 ET  Reply   Trace   Private Reply  

#3. To: misterwhite (#2)

That can't be questioned?

You can question anything you want... But after 200+ years, it's Established Law, and even a packed SCOTUS full of "conservative" judges ain't gonna reverse the decision.

Willie Green  posted on  2018-11-09   12:57:54 ET  Reply   Trace   Private Reply  

#4. To: Willie Green (#3)

But after 200+ years, it's Established Law

So was denying a woman's right to vote and slavery.

There is no constitutional justification for allowing the U.S. Supreme Court to be the final arbiter. They seized that power for themselves. I see no reason why an individual can't have an opinion on this.

misterwhite  posted on  2018-11-09   13:14:38 ET  Reply   Trace   Private Reply  

#5. To: misterwhite (#4)

So was denying a woman's right to vote and slavery.

Both changed by Constitutional Amendment...

You want somebody else to be the "final arbiter", then that'll take a Constitutional Amendment too... not just some asshat's crackpot opinion.

Willie Green  posted on  2018-11-09   13:45:21 ET  Reply   Trace   Private Reply  

#6. To: Willie Green (#5)

You want somebody else to be the "final arbiter", then that'll take a Constitutional Amendment too...

There was no constitutional amendment giving the court the power. I see no need for one to take it away.

The due process clause of the 14th amendment could have been used to free the slaves and give them and women the right to vote.

misterwhite  posted on  2018-11-09   15:18:40 ET  Reply   Trace   Private Reply  

#7. To: Willie Green (#5) (Edited)

You want somebody else to be the "final arbiter", then that'll take a Constitutional Amendment too... not just some asshat's crackpot opinion.

Not necessarily. Andrew Jackson overrode one Supreme Court decision, and Abraham Lincoln ignored the Court's order.

The Supreme Court has nothing but its reputation, the power of Congress, and the willingness of subordinate officers of the Executive Branch to obey it to enforce its opinions.

When Andrew Jackson said "John Marshal has made his opinion, now let him enforce it", he was implicitly observing a truth: the Court has no power to force the President to do anything. It only has influence.

The Supreme Court's power of judicial review exists because it has traditionally been respected. It is a custom to do so.

Those Presidents who have defied the Court relied on their own constitutional power over the Executive branch to enforce their own opinions over that of the Court. The events and the men were extraordinary, and did not become a precedent only because we really don't WANT that to be a precedent.

Obviously a direct conflict between a Court decision and the President is a constitutional crisis of the first order of magnitude. Historically, the two Presidents who chose to defy the Court did so under circumstances in which they were popular (and thus assured that Congress would not back the Court over them and impeach them), and on issues on which they believed that the junior officers of the Executive Branch would agree with them and obey them. Those Presidents were also sure that the vast bulk of the voting public would agree with them over against the Court on those matters.

Such extraordinary circumstances have been very rare, and involved things of military importance (to wit: Indian removal and writs of habeas corpus for Copperhead enemy sympathizers during the Civil War). The Presidents who have defied the Court have prevailed, and no amendment to the Constitution has been necessary.

In other circumstances, the "Switch in time that saved Nine", the Supreme Court was intimidated by the President's court-packing plan into reversing themselves and permitting the President to proceed with his policies that the same Court had theretofore shot down. FDR got his New Deal, but the People were soured by his high-handed treatment of the Court, and his party lost 71 seats in Congress in the midterms that follow.

In our day, there is no issue on which the people are strongly-enough aligned with any President for the President to dare defy the Supreme Court. Had the Supreme Court made some sort of foolish decision on a matter of national security immediately following 9-11, President W Bush could probably have successfully defied them, but they didn't so it didn't come up.

Had, for example, the Supreme Court ruled against Japanese internment in its Korematsu decision, it is highly likely that FDR would have invoked national security concerns to proceed with it anyway, the Army would have obeyed FDR, the people would have supported him and vilified the Court, and Congress would have backed the President. Under the circumstances, the Supreme Court's choice was to uphold the executive order, or to overrule it and have FDR establish the precedent of Presidential override of judicial decisions in time of war.

There existed no power in the land that was going to stop Andrew Jackson from deporting the Cherokee, Abraham Lincoln from imprisoning the Copperheads, or FDR from interning the Japanese. In the latter case, as in the "Switch in Time that Saved Nine", the Supreme Court made decisions that they knew were wrong in order to not allow precedents to be created that would by their existence override Marbury.

There is no issue in the country right now on which a President could defy the Supreme Court without facing hell from Congress and the voters.

Still, it's objectively not true that Judicial Review has to be overturned by a constitutional amendment. Two President have overtly defied the court with impunity, and one placed such pressure on the Court that it caved into him and gave him the decisions he demanded rather than be overruled and establish the precedent of executive override.

Trump has the sort of bellicose personality that probably WOULD pull an Andrew Jackson on the Court, were the Court to overrule him on something decisive. But of course it's a Republican Court, so the situation is not likely to happen.

Vicomte13  posted on  2018-11-09   15:28:22 ET  Reply   Trace   Private Reply  

#8. To: misterwhite (#6)

There was no constitutional amendment giving the court the power.

It wasn't necessary... Article III vests the judicial power in the Supreme Court...

The word "Supreme" should provide a clue as to which branch of gov't was the final arbiter...
Marbury v Madison was necessary to explain it to the thickheaded dolts who didn't understand the word "Supreme".

Willie Green  posted on  2018-11-09   16:13:30 ET  Reply   Trace   Private Reply  

#9. To: Willie Green (#8) (Edited)

The jungle drum consTiTuTion

PlaneT of The supreme ape courT

Throw The bone liberals

Voodoo equaliTy - jusTice

Like Taking The special olympics

Too seriously

There's an eTernal correcTion coming


If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !

BorisY  posted on  2018-11-09   16:57:21 ET  Reply   Trace   Private Reply  

#10. To: Vicomte13 (#7)

What you write is true and correct. Not only that, but the Democrat Socialists ignore the Supreme Court all the time. The USSC rules, then the Libtards ignore the ruling, pushing a similar case into a lower (Judge shopping) court. If and when the new push is rebuffed by the USSC, it is years later. They then repeat the process.

THIS IS A TAG LINE...Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.

jeremiad  posted on  2018-11-09   19:43:10 ET  Reply   Trace   Private Reply  

#11. To: Willie Green (#8)

Article III vests the judicial power in the Supreme Court...

Yes it does. But it does not say the Supreme Court is the final arbiter.

misterwhite  posted on  2018-11-10   9:27:12 ET  Reply   Trace   Private Reply  

#12. To: Willie Green (#8) (Edited)

The word "Supreme" should provide a clue as to which branch of gov't was the final arbiter...

Marbury v Madison was necessary to explain it to the thickheaded dolts who didn't understand the word "Supreme".

like whaT liberals can'T legislaTe

They geT The planeT of The ape ussc To carToon - fabricaTe iT

The fake supreme courT consTiTuTion

Marching manTra monkeys like you

can do That

make America America again

If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !

BorisY  posted on  2018-11-10   11:08:37 ET  Reply   Trace   Private Reply  

#13. To: Vicomte13, Willie Green (#7)

[Willie Green #5] You want somebody else to be the "final arbiter", then that'll take a Constitutional Amendment too... not just some asshat's crackpot opinion.

[Vicomte13 #7] Not necessarily. Andrew Jackson overrode one Supreme Court decision, and Abraham Lincoln ignored the Court's order.

While it is accurate to state that Lincoln ignored the order, in the Merryman case there was no order "of the court" to Lincoln, who was neither served, nor a party, and was not ordered to do anything. The Merryman case does nothing to support a claim that the President can suspend habeas corpus, nor that he can delegate such authority to a military authority, and authorize the military official to further delegate said authority down the chain of military authority. Nor does Merryman serve to undermine Marbury and the authority of the Judicial branch as the ultimate arbiter of what the law is.

Merryman was the opinion of a single justice, issued in chambers. For those not acquainted with the technical term, in chambers only connotes that the Court was not in session, and the location need not be what one thinks of as the judge's chambers at the Court. The proceedings in Merryman took place in Maryland and are filed at the U.S. Circuit Court in Maryland. Ex Parte Merryman, 17 F. Cas. 144 (C. C. D. Md. 1861) (No. 9487).

The petition for habeas corpus was delivered to CJ Taney at his Washington home on Sunday, May 26, 1861. That same day, CJ Taney issued an order to General Cadwalader to appear before him the next day, at Baltimore for the convenience of the general.

Lincoln, without authority, authorized General Scott to suspend the privilege of the writ. General Scott authorized other military officers to suspend the privilege of the writ.

General Cadwalader was told by letter of May 28, 1861, issued by Lt. Col. E.D. Townsend.

The hearing before the Chief Justice of the United States Supreme Court occurred the day before, on May 27, 1861, when Gen. Cadwalader did not appear, but sent his aide-de-camp to deliver a letter. Until May 28, 1861, Gen. Cadwalader had not even been unlawfully "authorized" to suspend the privilege of the writ.

A day late, Gen. Cadwalader was told, "In returns to writs of habeas corpus by whomsoever issued you will most respectfully decline for the time to produce the prisoners but will say that when the present unhappy difficulties are at an end you will duly respond to the writs in question."

This was unconstitutional. "The writ issues as a matter of course; and, on its return, the court decides whether the applicant is denied the right of proceeding any further." Ex Parte Milligan, 9-0. All are required to respond, and it is for the Court to decide if the privilege of the writ has been properly suspended. If the Court so decides, then the Court proceeds no further. The Lincoln administration unconstitutionally refused to respond or comply with the Court.

It was not President Lincoln or Gen. Cadwalader who suspended the writ of habeas corpus regarding Merryman, but it was General Keim in Pennsylvania who purported to suspend the writ from Philadelphia to Washington D.C.

CJ Taney directed the U.S. Marshal to serve an attachment on General Cadwalader for contempt. The Marshal was turned away at the gate of Fort McHenry, and the attachment was never served.

The Marshal returned to the court before noon on May 28, 1861. The proceedings in Baltimore continued at noon, with CJ Taney issuing an oral opinion. On Saturday, June 1, 1861 CJ Taney issued a written opinion, and ordered that it be filed with the U.S. Circuit Court for the District of Maryland.


Ex Parte Merryman, 17 F. Cas. 144 (C. C. D. Md. 1861) (No. 9847)

Ex parte. JOHN MERRYMAN. -- Before the Chief Justice of the Supreme Court of the United States, at Chambers.

The application in this case for a writ of habeas corpus is made to me under the 14th section of the Judiciary Act of 1789, which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus. That act gives to the Courts of the United States, as well as to each Justice of the Supreme Court, and to every District Judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to me at Washington under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, at the City of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such circumstances, would not withdraw Gen. Cadwalader, who had him in charge from the limits of his military command.

The petition presents the following case: The petitioner resides in Maryland, in Baltimore County. While peaceably in his own house, with his family, he was, at 2 o'clock, on the morning of the 25th of May, 1861, arrested by an armed force, professing to act under military orders. He was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.

The Commander of the fort, Gen. George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of Gen. Keim, of Pennsylvania, and conducted as a prisoner to Fort McHenry by his order, and placed in his (Gen. Cadwallader's) custody, to be there detained by him as a prisoner.

A copy of the warrant or order under which the prisoner was arrested was demanded by his counsel, and refused. And it is not alleged in the return that any specific act, constituting an offence against the laws of the United States, has been charged against him upon oath, but ho appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. And having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the President to suspend it.

The case, then, is simply this: A military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order, his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may he served upon him.

No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in his return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended, except by act of Congress.


In such a case my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer on me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him. I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the District of Maryland, and direct the Clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfillment of his constitutional obligation, to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.


Chief Justice of the Supreme Court United States.

nolu chan  posted on  2018-11-10   16:15:02 ET  Reply   Trace   Private Reply  

#14. To: Vicomte13, Willie Green (#7)

Andrew Jackson said "John Marshal has made his opinion, now let him enforce it"


Two President have overtly defied the court with impunity

Andrew Jackson did not say that, and most certainly did not say it to the Court.

Lincoln did not defy the Court in Merryman. He was neither served, nor a party, to the case. It was not the order of a court, but a single justice opinion in chambers, with proceedings in Baltimore, and the records filed in the U.S. Circuit Court in Maryland. The court order did not order Lincoln to do anything, leaving him nothing to defy. Lincoln ignored the order.

Neither does Worcester v. Georgia, support the notion that the U.S. Supreme Court is not the final arbiter of what the law is.

The quote often attributed to Andrew Jackson is considered apocryphal. He probably never said it, but it sounds good. The Court did not oblige Jackson to do anything. It supports the fact that the Exceutive enforces the law, or not, as the case may be.


Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.

The opinion is most famous for its dicta, which laid out the relationship between tribes and the state and federal governments. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States.


In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!" This derives from Jackson's comments on the case in a letter to John Coffee, "...the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate".

The Court did not ask federal marshals to carry out the decision, as had become standard. Worcester thus imposed no obligations on Jackson; there was nothing for him to enforce. This may be seen as a prudential decision, for avoiding the possibility of political conflict between the Court and the Executive, while still delivering what appeared to be a pro-Indian decision.

However, the ruling did order that Worcester be freed, and Georgia complied after several months. In 1833, the newly elected governor, Wilson Lumpkin, offered to pardon Worcester and Butler if they ceased their activities among the Cherokee. The two complied and were freed (under the authority of a January 14, 1833 general proclamation by Georgia Governor Wilson Lumpkin, not a formal pardon).

nolu chan  posted on  2018-11-10   16:42:48 ET  Reply   Trace   Private Reply  

#15. To: nolu chan (#14)

The points you raise are fair.

Vicomte13  posted on  2018-11-10   18:55:59 ET  Reply   Trace   Private Reply  

#16. To: misterwhite (#11)

But it does not say the Supreme Court is the final arbiter.

What don't you understand about the word Supreme?

When you come up with something supremier than supreme, please let us know... we could use a good laugh...

Willie Green  posted on  2018-11-11   9:54:59 ET  Reply   Trace   Private Reply  

#17. To: Willie Green (#16)

What don't you understand about the word Supreme?

“You keep using that word. I do not think it means what you think it means.”

misterwhite  posted on  2018-11-11   10:16:04 ET  Reply   Trace   Private Reply  

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