Thom Hartmann, an adroit scholar, writer and speaker, conversant in a wide variety of fields is generally known for his nightly news and opinion program, “The Big Picture.” Hartmann has stated a number of times on his program, as well as in print, that the US Constitution never gave the Supreme Court the power to pass on the constitutionality of a congressional law. Americans have been living for so long with the Court upending congressional legislation, that they assume the Constitution does indeed give the Court this power. But they are wrong and Hartmann is right. And the reason he is right is because of the unimpeachable nature of Hartmann’s source. It is none other than Alexander Hamilton, the founder most integrally related to the writing of the federal Constitution. Together with fellow New Yorker John Jay and Virginian James Madison, Hamilton explained and defended the new Constitution for those who would vote it up or down in the immortal “Federalist Papers” (now entirely available online).
When the Constitution was being debated among the voting population in 1787, the year it was written, there were many people who opposed it. One was Mercy Otis Warren, sister of revolutionary firebrand James Otis and wife of James Warren, of the illustrious patriot Warren family of Massachusetts. She was one of the foremost authorities on the American Revolution, having written a three volume book on the movement. And she and her husband were among the “anti-federalist” opponents of the Constitution. These people numbered some of the most respected revolutionary leaders such as Sam Adams and Patrick Henry. The anti-federalists preferred keeping and perhaps revising the more decentralized, state centered Articles of Confederation, under which the Second Continental Congress had fought and won the Revolutionary War. They feared the new much more centralized document, sensitive as they were to the possibilities for abuse of power by government.
One of the key reasons Warren cited for her opposition to the federal Constitution was its vague delineation of the powers of the judiciary, something that could open the door to all kinds of future abuse of power. For example, the Supreme Court could set itself up as the final arbiter of the Constitution, invalidating laws enacted by the people’s representatives in Congress. The anti-federalists were all too familiar with British Admiralty Courts and their arbitrary confiscation of colonial cargo under the British Navigation Acts. They also had knowledge of the tyrannical Star Chamber Court of Henry VIII and a great many other historical examples of judicial usurpation of power.
It was likely in response to arguments exemplified by Warren that Hamilton penned Federalist 81. In that commentary he answers Warren’s charge by stating that the federal Constitution does not give the Supreme Court the power to review Congressional laws as to their constitutionality.
It is Federalist 81 that Hartmann refers to when he says the Court does not have the power of judicial review. Hamilton plainly says so. The reason Hartmann’s argument has such importance today is because Americans have been victimized and our very representative democracy put at risk by a Supreme Court declaring laws made by the people’s representatives unconstitutional and therefore invalid, the very thing Alexander Hamilton declared it has no power to do.
Mind you, Hamilton was no rabid democrat. And democracy was considered a very radical form of government in his day. He in fact was one of the most conservative of the founders, preferring a constitutional monarchy to the presidential form of government enacted in the Constitution. But he firmly believed, as did all the other founders, and stated in Federalist 81, that the Congress, the people’s own branch of government must have priority over all lawmaking and unmaking. It is Hamilton’s conservatism that gives this sentiment coming from his pen so much resonance.
We live today in an America where the Supreme Court has invalidated all congressional and state laws regulating the money special interests can pour into elections in order to manipulate the public through slanderous and misleading political advertising. The Supreme Court, using a power of judicial review, first usurped by Chief Justice John Marshall in 1803, has declared that money in political campaigns is equivalent to the exercise of free speech, protected in the First Amendment of the Bill of Rights (Buckley V. Valeo, 1976). In the Buckley case, the Court invalidated the stringent laws passed by the Congress to regulate campaign spending for federal office enacted in the wake of the severe abuses of the Nixon Administration’s Watergate Affair. And if that wasn’t enough, in 2010, the Court took it upon itself to declare the mild, bipartisan McCain Feingold campaign finance bill unconstitutional on the same basis in Citizens United V US Electoral Commission. In this fateful decision five plutocratic unelected justices handed our national and state elections over to the whims of whatever billionaires, millionaires, corporations and other special interests, including even foreign governments or entities, using the money equals free speech precedent of the Buckley case.
Thus we have the arrival of the super-pacs. These are political action committees supposedly unrelated to the candidate they support. They are permitted to inflict upon the American public, most of whom are overworked, tired and largely ignorant of public affairs, every manner of lie or insinuation about the candidate they oppose. Because they have no direct relationship to the campaign of the candidate they support, they give him or her plausible deniability.
Earlier examples of the kind of thing that super-pacs specialize in are the Willie Horton ad of the George H. W. Bush campaign against Michael Dukakis. It showed a picture of a murderer, who had been let out of jail on a furlough plan in Massachusetts, where Michael Dukakis was governor. And he went on to murder again. He was African American, and he was made to look ugly and threatening and dangerous. Americans have a long history of equally ugly attitudes toward black men. It lingers just below or within the conscious minds of a significant number of white voters. This is the image of the evil Other, much as Nazi propaganda portrayed the Jews. The ad associated Willie Horton with Governor Dukakis, and even though Dukakis had not been involved in granting his furlough, he took the rap. The ad is credited with giving Bush the election. Now imagine how the new Republican super-pacs, hallowed by the Supreme Court, will portray an African American president. Mitt Romney’s donors have already employed the same person who constructed the Willie Horton ad. And now, given the Supreme Court’s dictum that those sponsoring ads do not even have to reveal their identities, imagine the free rein for campaign filth the Court has unleashed. The Bush campaign had to claim responsibility for the Horton ad. The Romney campaign does not for whatever spurious slander its minions wish to use in portrayal of President Obama.
This is the only president, mind you, who has had to contend with such lunacy as a large body of Americans refusing to believe he is a citizen of the US, born in Hawaii. He is a baptized Christian, member of the United Church of Christ, but because his middle name is Hussein, millions of Americans are willing to believe he is a Muslim. His appointments in the economics sphere have all been conservative Wall Street free traders, much like those of his predecessor, conservative Republican George W. Bush. Yet large numbers of Americans believe he is a socialist or “neo-communist.” He has bent over backwards, virtually twisted himself into a pretzel, to secure bipartisan support, disavowing most ideas of the progressive wing of his party. Yet he is shunned like some kind of Typhoid Mary. Not that other presidents haven’t been publicly hated or insulted by members of the opposing party. But Obama, whose place on the political spectrum is about that of a moderate Republican of the fifties, like Eisenhower, incurs this blistering hatred and ostracism.
This, my friends, is the product of centuries of racism, America’s original sin. Many white Americans are in reality so angry that a representative of the Other should become president that they are ready to believe so many outrageous things about him. And in this explosive atmosphere, the Supreme Court gang of five has set a boatload of dynamite and lit the fuse.
Generations who have grown up since the African American Civil Rights Movement are less bound by old racial stereotypes and are used to seeing people of all racial backgrounds working together, being friends with one another or even marrying or living with one another. My hope is that they will see through the racist inspired innuendo that will fill the airwaves in the campaign against Obama.
In my next article I’ll elaborate on the thesis that the long accepted doctrine of judicial review of congressional legislation is actually unconstitutional and detrimental to the governance and at this point the very continuance of the representative democracy the founders set up.
Citizens United
Your posts are always thought-provoking and scholarly, Stephen. Thank you for shedding light on those points where history and social justice converge.
I’ve always believed that good government requires some check to legislative power so that tyrannical laws aren’t inflicted upon citizens. My first lesson in American civics taught me that the judicial branch is charged in part with providing that backstop. If you and Hartmann are correct, then what part of government provides that balance?
You remind us that the potential for tyranny exists with both justices and lawmakers. If We the People don’t check authority, throughout government, then over time we are going to be ruled by tyrants. This fact is well illustrated by the Supreme Court decision you site that equates campaign spending with freedom of speech and grants corporations the same rights as human beings.
You can get imbalance and tyranny coming from any of the three branches. But the branches were not meant to be “coequal,” the current catchphrase. The legislative, Congress, especially the House, is designed to be most responsive to the people, because the people (and the electoral population was gradually broadened, most recently to eighteen year olds) have the power to “throw the bums out.” The House is most subject to popular whim, which nowadays can be manipulated by media and big business, as it was in 2010 by the Fox News/Koch Brothers planned Tea Party reaction against Obama. When the public got a look at what the Tea Party was really planning, and whom they represented in Wisconsin and in Ohio last winter, they reacted strongly in support of the continuation of the rights of public unions, etc. The Senate, originally elected by the representatives of state legislatures, and changed to popular election by the Seventeenth Amendment, during the Progressive Era (1900-1917) was meant to be something of a more aristocratic check on the democratic House. So senators weren’t directly elected and served six year terms.
But the point I would make here is that members of the House and Senate and the president all have to come before the public regularly for reelection. This is not so of the very politically appointed Supreme Court justices, who serve for life. They can be impeached, but it is very difficult and has only rarely occurred. Hence this branch is by far the least responsive to the people. Therefore, to give it final say over what is ‘constitutional” was far from anything the founders were thinking of when they wrote the Constitution, as Hamilton’s words clearly attest to. The irony is that “conservative” activists on the Court, like Antonin Scalia, claim that their chief concern in evaluating a law was the founders’ “intent.” That is a cruel joke. There is no way the founders intended to have the Court insinuate itself into a legitimate vote recount and choose the president, as they did in Bush V. Gore (2000). And there is no way that any founder would have tolerated the money equals free speech doctrine that justices who representing America’s plutocracy have forced down our throats in the Buckley case or Citizens United. The founders recognized that Congress may pass unjust laws, and in response to popular demand, they may correct or reform them. They never believed that Supreme Court justices, who sit in a Greek temple on a high rostrum like nine demigods, had some direct pipeline to wisdom. They did not even require that any of the justices even be attorneys or have any experience in being a judge. So it is obvious that they never designed the Supreme Court to have the incredibly broad powers it has assumed.
I thought women weren’t allowed to vote in the 1700s. Good thing they were allowed to read and write!
I thought the idea was that the Supreme Court justices would be appointed for life so that politics wouldn’t sway their decisions.
If the Senate was created as less responsive to the people, then why were they the ones that approved treaties, Supreme Court justices and other appointments?
If the Supreme Court shouldn’t invalidate unconstitutional laws, then how do we protect ourselves from abuses of power from the legislative and administrative branches (I include this branch because the president can sign an unconstitutional law the Congress passes)?
Finally, I find it incredible that people are swayed by television or print commercials for or against candidates. Even more incredible is that people write about this, make movies about this, and talk about it all the time, making it obvious what’s going on, and still it goes on.
Are Americans really that dumb? Don’t we deserve what we get?
The crux of the article is “…the American public, most of whom are overworked, tired and largely ignorant of public affairs….”
We need a drastic overhaul of our education system, so that we raise citizens who are NOT “overworked, tired and largely ignorant of public affairs….”
If our citizenry were alert, articulate and understanding of what is truely relevant, these abuses of power would not happen. Of course, the PTB want to keep the status quo, and to tighten the noose even more.