Supreme Court the last stand against Obama imperialsim

July 2, 2014

July 2, 1776, Philadelphia, Pennsylvania:  Delegates to the Second Continental Congress approved a resolution declaring independence from Great Britain.  Two days later, Congress formally adopted Thomas Jefferson’s “Declaration of Independence” and the words “Life, Liberty and the pursuit of Happiness…” took their place in the annals of the United States of America.

It would take 15 more years for the final pillar of our federal government to be set in place when the Virginia legislature approved the first 10 amendments to the Constitution and James Madison’s “Bill of Rights” became the law of the land.

For the first time in human history, the rights of the individual ruled over the power of government.  And for the first time in that same history, 3 co-equal branches would share power, each a check against the other.

Yet for as compatible as those Constitutional checks and balances look on paper, they have, from the very beginning, been quite contentious when put into practice.

Take the 1803 Supreme Court case Marbury v Madison that established the concept of “judicial review” we rely upon today as example one.

Federalist John Adams was pitted against the author of the Declaration of Independence, Thomas Jefferson, with the “Father of the Constitution” James Madison and a wealthy Marylander by the name of William Marbury caught in the middle.

Throw in two different Congresses passing laws benefitting their own majorities and the fact that John Marshall (the Chief Justice that would eventually resolve the case) was Adam’s acting Secretary of State when the shenanigans began and you have all the political intrigue of modern Washington, D.C. sans the internet and cable news.

Why the history lesson?  Because in this day of instant gratification and our humanity tethered to our technology it’s helpful to be reminded now and again of just how hard the fight and how long the time it took the Founders to craft the framework of freedom and liberty we enjoy today.

Freedom and liberty that if not vigilantly guarded will disappear in a heartbeat.

So if these power struggles are nothing new, why the sudden uproar over President Obama’s use of executive power today?

Because as Johnathan Turley, Shapiro Chair for Public Interest Law at George Washington University,(and supporter of many Obama policies) warns that in the context of the power sharing that the Founders intended: “What’s emerging is an imperial presidency,…….. What’s troubling is that we have a system that has been stable precisely because these are limited and shared powers. This president has indicated that he’s just not willing to comply with some of those aspects.”

Thankfully we have the Supreme Court as shaped by John Marshall those two centuries past to keep those powers in balance.  And this past week, in rulings on everything from cell phone warrants, to who defines a Senate recess, to whether home care workers could be forced to join a public union, or whether citizens give up their religious liberty by incorporating a business the justices did just that – restored some balance.

By siding in each case with either individual rights or the limiting of executive power, the Justices did their part in checking the arbitrary power the Founders so adamantly opposed.

Exiting Independence Hall in 1787 Benjamin Franklin was asked by Mrs. Powel “Well, Doctor, what have we got, a republic or a monarchy?”, he replied “A republic, if you can keep it.”

While I have no doubt Franklin would abhor the national debt and the power already ceded to the federal government he’d also admit we’ve done better than expected by keeping it for as long as we have.

So Happy Birthday America, here’s to another 238, with discord and dysfunction for all.

That IS after all, the American way.

PUBLISHER’s NOTE:  A version of this column first appeared in the July 2, 1776 print edition of the Joplin Globe.

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