WHAT REALLY MATTERS MIGHT SURPRISE YOU!

By Edwin Cooney

I’ve believed for some time now that, as much as our leaders may differ politically, how much they personally like and/or respect one another may often affect our national destiny. Although this belief of mine is difficult, if not impossible, to document, history is bedecked by at least anecdotal evidence that such is the case.

Last week, Conservatives took “Obama Care” to the Supreme Court, which, sometime in June, will decide on its constitutionality. Liberals will insist that the government has the right to require individuals to purchase health insurance for the betterment of the “general welfare.” Conservatives insist that there’s nothing in the Constitution that empowers the federal government to tell John and Susie Q. Citizen what to do, even if it’s for their own good. Conservatives, at least their leading presidential candidate Mitt Romney, contend that state government can make such requirements within state jurisdictions, as Governor Romney did in Massachusetts, because the Constitution grants to the states “enumerated powers” not specifically granted to the federal government.

For decades, Conservatives have labeled Liberal Justices political activists because instead of “literally” interpreting the Constitution as written by “the Founding Fathers,” they judge cases according to their political faith. Liberals, on the other hand, insist that Conservative justices are no less activist in their opposition to such social causes as abortion and civil rights—hence, “Christians one, Lions one!”

Ah! But does the Constitution grant to the Supreme Court the power to declare laws passed by the Congress and signed by the President unconstitutional? No it doesn’t—not specifically! The Constitution grants the Supreme Court ultimate appellate power for the settling of disputes, but it doesn’t specifically grant power to the Supreme Court to declare a law unconstitutional—although “judicial review”—the method utilized to make such declarations—was a tradition of jurisprudence within at least seven of the thirteen original colonies. How the use of judicial review came about may well have had as much to do with a series of personality clashes as much as it did with our tradition of doctrinaire driven political conflicts.

Since George Washington’s presidency, there has been a tradition of big government vs. small government or states’ rights controversies. Those who supported the policies of President Washington and Treasury Secretary Alexander Hamilton were called Federalist, while those who supported the party organized by James Madison and Thomas Jefferson of Virginia were called Republican-Democrats. By 1800, George Washington—the President named George who really was a uniter and not a divider—was gone. When President John Adams and Vice President Thomas Jefferson, both exceedingly willful men, came to political blows during that year’s campaign, the outcome was to have legal and social as well as political consequences. Jefferson, the ultimate victor, called that campaign “the revolution of 1800.”

President Adams, an irascible old gentleman, realizing that he was going to lose the election to Thomas Jefferson—his old friend and late antagonist—sought to retain power on behalf of his party by appointing his Secretary of State, John Marshall, to replace the ailing Chief Justice Oliver Ellsworth. In fact, President Adams made a series of judicial appointments, which came to be called “midnight appointments.” Marshall was confirmed by the outgoing Federalist Senate and therefore was commissioned Chief Justice. However, a number of other Federalist appointees were confirmed but not commissioned before Adams left office.

Part of Chief Justice Marshall’s mission from Adams and his fellow Federalists was to preserve, as much as possible, the fundamental Federalist doctrine of the supremacy of federal jurisdiction and laws over state laws. Ultimately, the delivery of these commissions by the Jefferson administration came to the Supreme Court in Marbury verses Madison.

Chief Justice Marshall and three other justices ruled that the Supreme Court lacked the jurisdiction to force James Madison, Jefferson’s Secretary of State, to deliver the commissions. However, they ruled that it does have the power, under its appellate authority, to declare state laws and laws passed by Congress unconstitutional. Thus, the supremacy of federal power over state power was sustained and such power was ultimately available to Federalists and Democratic-Republicans, as well as to modern Conservatives and Liberals.

President Jefferson and Chief Justice Marshall, born in Virginia and second cousins once removed (Jefferson’s mother Jane Randolph Jefferson was Marshall’s second cousin), were very different personalities. Affable, a celebrated soldier during the Revolutionary war, a close personal friend and biographer of George Washington, John Marshall was a devout Federalist and jealous of his prerogatives. As Chief Justice he insisted that, as often as possible, there was near unanimity, especially when he wrote opinions for the majority on the court.

Thomas Jefferson, a towering intellect, an excellent lawyer and eloquent writer, was nevertheless often dower and thin-skinned when opposed. There also existed a coolness between the Jefferson and Randolph clans. Some of Jefferson’s biographers insist that Jefferson, since he wrote almost nothing about her, was exceedingly cool toward his mother. Perhaps another reason for -- or if you prefer, cause of -- a possible strain between the Jefferson’s and the Randolph’s was the result of the breakup of Jefferson’s daughter Martha’s marriage to her abusive alcoholic husband Thomas Mann Randolph. Finally, the fact that President Washington never spoke to Jefferson again after he resigned as Secretary of State over increasing political differences, surely had some effect on his relations with his second cousin.

There are numerous instances throughout our history when personal animosity was a factor, as much as political or ideological differences, when it came to settling important national issues.

Ironic, isn’t it, that President Obama’s opponents, who insist on the constitutionality of all laws, are so dependent on judicial review, a procedure not originally written in to the Constitution by “The Founding Fathers,” to sustain their political and social agendas!

I wonder if their real objection to “Obama Care” doesn’t have more to do with the fact that they just don’t like the president!

RESPECTFULLY SUBMITTED,
EDWIN COONEY

(Originally published MONDAY, APRIL 9TH, 2012)