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"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, August, 2018)
I tried to put in a portrait of Chief Justice John Marshall who, all by himself, made one of the most consequential amendments to the Constitution, but it wouldn't take for the OpEdNews format. Why Marshall? Well, as it happens the present Administration is, all by itself, amending the Constitution in very significant ways, which is what this column is about.
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Introduction
Increasingly, many observers of what has happened to our nation since the advent of Trump II, within, for example, the legal profession (including legal education), within journalism (print and electronic), and within the fields of history/political-science, are talking about "the coming Constitutional crisis." However, there are some who think that it is already here. I count myself among that smaller-but-growing group, which is what this column is about. But before we get into the "what are the events-speeches-writings-acts," that add up to defining "what-is-going-on-as-we-speak/think/write," as a "Constitutional Crisis," let us look at the provisions of the Constitution which have-been-are-or-predictably-shortly-will-be-violated by the current Administration and its allies in the Congress.
For examples, see Appendix I, which presents the texts of those Articles of the U.S. Constitution which describe the functions of the three independent/inter-dependent branches: the Legislative, in Article I; the Executive in Article II, and the Judicial, in Article III. It has often been pointed out that it is very important to note that it is the description of the structure and function of the legislative branch which comes first in the Constitution.
The most important poltico-historico development of the Nation subsequent to the ratification of the Constitution, and its subsequent use as the guiding document for the functioning of the Federal government, has been the adoption into practice, over time, of a wide variety of rulings of the Supreme Court. This Supreme Court power is itself nowhere to be found in the Constitution. As it happens, the power of review and qualification of the structure and function of the other two branches is a primary power of the Court for one widely known reason. Very early in the history of our nation there was a Supreme Court decision in a case, "Marbury v. Madsion," in which the Court arrogated to itself the power to declare that any action of the Federal government (and by a series of Court decisions a handed down over the next 20 years or so those of that States as well). And the balance of the national polity let that decision stand, and indeed become controlling, over the time since then.
Over the years, I have written a series of analyses in which I have intended to show that "Marbury v. Madison" was itself a vast, unconstitutional, extension of the power(s) of the Supreme Court. (For a summary of the argument, see Appendix II.) I must in all due modesty say that I have never found any judicial/legal authority who agrees with me. (As it happened, at the time of the Decision President Thomas Jefferson did, but he was well occupied with other national and international matters and never pushed the case.) BUT as it happens, at this time in our Nation's history, the fact that the Court has-arrogated-been-allocated those powers in practice may be the only thin string by which Constitutional government in our nation hangs. Time will, as they say, tell.
What are (just some of) the Actions of the present Republican Presidency and Congress that indicate that the Nation is in Constitutional Cris or shortly will be. I am defining "Constitutional Crisis" as a state of politico-economic reality that has major elements in it that violate either provisions of the Constitution itself or the history of the provisions of Constitutional Law that have been established, and accepted, as law, by either the Congress or the Supreme Court itself, since the time of Marbury v. Madison.
* Republican House Speaker Mike Johnson has proposed eliminating certain Federal courts (ones of course that make decisions that the Trumpublicans don't like) or establishing new courts (in which they would find favor).
* "'The first thing we do is, let's kill all the lawyers.' It's said by a character called Dick the Butcher in Act IV, Scene II of William Shakespeare's Henry VI, Part II.' "Some might think that it describes Trump's policy towards lawyers who undertake litigation against him.
* Trump's re-fighting the legitimacy of the 2020 election by pardoning law-breakers.
* Using the justice system for personal revenge/retribution. Trump has boasted about wanting to do this. It is a legal power of the Presidency nowhere provided for in the Constitution or subsequent case law.
* The Assault on Higher Education: arbitrary withholding of funds for reasons such as "anti-Semitism on campus." There is no law governing this kind of action
* Closing Govt Depts., changing Departmental function, without the benefit of legislation. Just the last day on which I am writing this column, RFK Jr. has announced the essential destruction of the major functions of the Department of Health and Human Services, established by law, by Congress, on his own authority.
* The apparently warrantless arrests, and arbitrary deportations without warrants, or the reading of the victims Miranda Rights at the time of the arrest: www.mirandarights.org/mirandawarning.pdf. (MIRANDA WARNING: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?" This has been regarded as established law since the original Miranda case, decided by the Supreme Court. The cases include: Khalil, Fabian Schmidt, "The Gang" deported en masse to El Salvador, Dr. Alawieh, and etc.
* Pres. Trump would like to change voting rights, as mandated by Federal law, under the Constitution, by Executive Order.
* Oh yes, is [the] DOGE (with the Bridge of Sighs [see the history of Venice, Italy] likely to come along sooner rather than later) unconstitutional? Well indeed it is. It's a government department (well I guess it must be: is has that word in its name) that was created (and somehow budgeted for) without the benefit of legislation. Of course, as provided for by Article I Sect. 8 of the Constitution, departments can be created only by the Congress, with the head of each requiring confirmation by the Senate before assuming the job (Article II, Section 2).
Unfortunately, I could go on (and on, and on) but will not do so here. Over time, I will be dealing with the responses of various Courts to the, let me say it again, Constitutional crisis we are in. I will leave you with two appendices. The first summarizes the powers of the Three Branches of Government, from the Constitution. The second summarizes my argument as to why "Marbury vs. Madison," by which the Supreme Court arrogated to itself the power to determine the Constitutionality of actions of the other two branches of the Federal government (and, with further decisions, of the State governments as well.
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Appendix I: The Respective Powers of the Three Branches of Government, as determined by the Constitution
Of the Congress, from Article I
Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;
To establish an uniform rules of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offences against the law of nations;
To declare war, grant letters or marque and reprisal, and make rules con cerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a Navy;
To make rules for the government and regulation of the land and naval Forc es;
To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United states, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock"'yards, and other needful buildings; And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitu tion in the government of the United States, or in any department or officer thereof.
Of the Executive Branch, from Article II
Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have pow er to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
Section 3. He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall receive Ambassadors and other public Ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.
Of the Judicial Branch, from Article III
Section. 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Appendix II: A summary of my argument as to why "Marbury v. Madison" is/was unconstitutional.
"Author's Commentary" (that is, excerpts from what the "author" of the book, Jonathan Westminster, wrote about the "decision").
"Anderson v. United States was the most significant decision handed down by the Supreme Court in the old United States since Marbury v. Madison, referred to in the decision summary reproduced above. In that case, Chief Justice John Marshall had established the power of the Supreme Court to review actions of the two other branches of the Federal government. As correctly noted by Chief Justice Steps that power is nowhere clearly grant ed to it by the Constitution itself. Nevertheless, Marshall said, if the Supreme Court found such actions to be unconstitutional, they were null and void. His reasoning went as follows (Cox):
" 'The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.' "
"Marshall, of course, held that the 'former alternative' was true, its truth found in the fact of the Constitution itself. He then drew the defensible conclusion that the body given the power to adjudicate disputes arising under the Constitution, and Article 3 Section 2 surely did that, indeed had the power to review the actions of the other two govern mental branches for their constitutionality. That authority was extended to the appellate review of state court decisions having constitutional implications under the defensible conclusion that by ratifying the Constitution in the first place, the states had ceded to the Unit ed States that appellate jurisdiction, which is clearly contained in Article 3 Section 2 (see the decision in Cohens).
"Once the Court under Marshall's leadership had made those judgments, the full American power structure quickly came to agree with him. The Jeffersonians did make several modest attempts to undermine the independence and authority of the Supreme Court, but failed and ultimately gave up. From that time onwards, American jurisprudence came to be firmly established in the legal structure that Chief Justice Marshall had constructed on the Constitution's base, as he interpreted it.
"One very important principle set forth by Marshall, and subsequently accepted by all parties to American government down to the Transition Era [that is the projected historical period that led from U.S. Constitutional Democracy to the establishment of the fascist regime], was that the Constitution was a document that meant more than it explicitly said, that it was open to interpretation, and held within itself 'implications.' And by implication that meant the Constitution was a document that could grow and change with changing times and circumstances, that it was indeed designed to grow and change with changing times and circumstances."
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