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"Either this nation shall kill racism, or racism shall kill this nation." (S. Jonas, Aug., 2018)
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Pres. James Madison is the "Madison" of "Madison v. Marbury," the case in which then Chief Justice Marshall established the Constitutional principle of Judicial Review. An image of Madison can be found here: (Image by Wikipedia (commons.wikimedia.org), Author: Gilbert Stuart (-1828) ) Details Source DMCA
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Preface to this column
In 2021, in this space, I published a column entitled "Reversing 'Marbury v. Madison'." It in turn was a re-print of Chap. 5 from my book The 15% Solution: A Political History of American Fascism, 2001-2022, which was originally published in 1996. (A reprint of the book was published in 2013. A further reprint was published last year in a Kindle edition, and the book will be re-published again in a print version, later this year.) At the time of its original publication, the book was a fictional history, written over a two-year period, 1994-95, of what a future fascist United States would look like. Who knew then, what would be transpiring right now, in terms of what the Trump/Vancers are attempting to do to traditional U.S. Constitutional democracy. If you think that it is imperfect now (and of course it is), just wait until Trump/Vance, their lackey (as well as unqualified) cabinet, and their Republican toadies in Congress get through with it.
Among the various elements cementing a then-future fascism in the United States was a fictional Supreme Court decision which overturned Chief Justice John Marshall's famous decision in "Marbury v. Madison," which gave the Supreme court final say over the Constitutionality of various acts of both the Executive and the Legislative Branches. In my book, that decision was intended to be fictional. As it happens (see the main text of this column, just below), the Trump/Vance Administration is in the process of attempting to turn what I had speculated upon in certain recent columns of mine as being possible, (and of course others did as well, e.g., see Timothy Snyder ) into REALITY. That is, they are in the process of turning a central element of fascism (see the definition that I use, at the end of this column), that is that there is no separation of governmental powers, which all concentrated in the Executive Branch, into reality.
Introduction
"[Vice-President] Vance Says 'Judges Aren't Allowed to Control' Trump's 'Legitimate Power' " By Charlie Savage and Minho Kim
"The declaration by the vice president came as court orders have temporarily blocked parts of the Trump administration's agenda. In a social media post, Vice President JD Vance compared judicial intervention to courts telling generals how to conduct military operations."
"Vice President JD Vance declared on Sunday that "judges aren't allowed to control the executive's legitimate power," delivering a warning shot to the federal judiciary in the face of court rulings that have, for now, stymied aspects of President Trump's agenda.
"The statement, issued on social media, came as federal judges have temporarily barred a slew of Trump administration actions from taking effect. They include ending birthright citizenship; giving associates of Elon Musk's government-slashing effort access to a sensitive Treasury Department system; transferring transgender female inmates to male prisons; and placing thousands of U.S. Agency for International Development employees on leave.
"Mr. Vance, a 2013 graduate of Yale Law School, has repeatedly argued in recent years that presidents like Mr. Trump can and should ignore court orders that they say infringe on their rightful executive powers. [emphasis added]. While his post did not go that far, it carried greater significance given that he is now vice president.
"The post may also offer a window on the administration's thinking toward the orders against it as Mr. Trump has openly violated numerous statutes, like limits on summarily firing officials and effectively dismantling U.S.A.I.D. and folding it into the State Department. It also raised the question of whether the administration would stop abiding by rulings if it deemed them to be illegitimately impeding his agenda."
From here on, to repeat, the text of this column is taken from a chapter in my 1996 book, "The 15% Solution," in which a pro-U.S.-fascism Supreme Court overturns Marbury v. Madison, thus removing from the U.S. courts any authority over the acts of the Executive Branch. As I said in the 2021 version of this column:
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"Marbury v. Madison is perhaps the most famous Supreme Court decision ever handed down. In his opinion on the case, then Chief Justice John Marshall established the principle that the Supreme Court has the power to review decisions of the Executive and Legislative branches of the U.S. Federal government and rule on their "constitutionality." Under the doctrine of this case (and several others that followed it along over the next 20 years or so), if the Supreme Court found that a particular decision/policy of either of the other branches of government was not in accord with the Constitution, that the decision/policy was not to be allowed to stand.
"This power is nowhere to be found in the Constitution, and Chief Justice Marshall, using classic, lawyerly, if-then-if-then reasoning made it up out of whole cloth. Much of the political opinion in the Republic supported the decision, and although Jefferson and some of his political allies did object to it, they had other major issues to deal with and the matter was soon dropped. Then, as noted above, there were a series of cases that reinforced the review-power doctrine established under it, which has stood in place ever since.
"In 1996 I published the first version of a book entitled "The 15% Solution." Under the authorship of one "Jonathan Westminster" (a play on the name of Jack London, who in 1908 had published a book entitled 'The Iron Heel,' which predicted a future fascist United States) the book was a 'future history' purportedly published in 2048, on the 25th anniversary of the conclusion of The Second Civil War, which re-established Constitutional Democracy in the United States. In this 'history,' I indeed had a Chief Justice Steps' (Scalia, get it) write an opinion in which in Marbury v. Madison and the cases decided subsequent to it were reversed, opening the way for the establishment of totally untrammeled Executive Branch power. I reproduce for you here major excerpts from chapter 5 of the book, which presents the narrative of how this happened."
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"Summary of the Decision (Supreme Court Bulletin)
"Supreme Court Has No Constitutional Review Authority"
"Anderson v. Board of Education, Cer tiorari to United States Court of Ap peals for the Third Circuit.
"No. 101"11. Argued October 31, 2002, Decided May 13, 2003.
"Petitioner, a parent acting on behalf of her minor child, brought a civil ac tion against the Board of Education of the state of New Jersey seek ing to pre vent it from enforcing a law passed dur ing the 2001 ses sion of the State Legis lature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Su preme Court. With out arguing the merits, respon dent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, gener ally known as the "Helms Amend ment [1]," the U.S. Su preme Court did not have ju risdiction in this case.
"Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Fur ther, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its "constitutionality."
"(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: "The judicial power shall extend to all cas es, 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 affect ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to contro versies to which the United States shall be a party; to controversies between two or more states."
"(b) It is clear that the plain language of this article supports the hold ing of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Consti tution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say. It thus be comes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court 'judicial re view' for 'constitu tionality' were based on faulty legal rea soning.
"(c) In the first of these cases, Marbury v. Madison, the Court inval i dated an 'Act of Congress' giving the Court jurisdiction to hear origi nal appli cations for writs of mandamus, because in such cases the Con stitu tion limits the Su preme Court to appellate jurisdiction" (Cox). While that opin ion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law. Rather, as in Great Britain, the legisla tive branch, through the will of the majority, is the only ap propriate judge of the 'constitutionality' of its own acts. In his written opinion, the Chief Justice stated that if 'the courts lacked the power to give sting to constitu tional safeguards . . . , the Legisla tive and Execu tive Branches might too often override the- Constitution' (Cox). That may well be true. But if the Founding Fathers had wanted to give the Federal judiciary that 'protec tive' function, they would have clearly writ ten it into the Constitu tion. Chief Justice Marshall was reading into the Consti tution words that he wanted to see but were not there.
"(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Su preme Court's review powers to include decisions made by the State courts (Cox). Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there. In Cohens v. Vir ginia Chief Justice Marshall affirmed Justice Story's con clu sion in Martin, using the same faulty reasoning (Cox).
"(e) Finally, in McCulloch v. Maryland, Chief Justice Marshall not only reaffirmed the Court's review authority, unstated in the Constitu tion, but found in it other 'implied powers,' giving the Congress au thority to undertake ac tions not otherwise specified by the Constitution (in this case renewing the charter of the United States Bank which it had originally established in 1791) (Cox).
"(f) After extensive review of the opinions and reasoning in the deci sions made in the aforementioned cases, careful review of the language of the Con stitution itself, and a consideration of the available evidence on Original Intent, the Court was able to find no basis for the conclu sions on 'implied powers' that Chief Justice Marshall and his colleagues drew in those decisions referable to the authority of either the Supreme Court or the Congress. Thus, the Court held, the precedents estab lished by those cases and all their successors down through the years were based on faulty rea soning and a reading of the Consti tution not in ac cord with the Doctrine of Original Intent. Thus, those faulty prece dents must be abandoned. Since the specifics of Marbury, Martin, Cohens, and McCulloch had long since become moot, the Court chose not to reverse those decisions. However, it did reverse the holdings made in those cases that the Supreme Court had any power to review the actions of the Fed eral Execu tive and Legislative branches or any State courts for their 'constitu tionality.'
"11 F. 11th 111, Affirmed. Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting."
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This reversal of the centuries-long precedent of the Supreme Court having final say (for better, sometimes, and for worse, others) over the Constitutionality of acts and actions of the other two branches of government is clearly what Vance is advocating/declaring. (Of course, Vance would not speak on such matters without being authorized to do so by Trump --- even though he (that is, Trump) knows squat-all about the Constitution, and likely has never read any part[s] of it. (Of course, for better or for worse, Vance did take Constitutional law in law school. One can draw one's own conclusions about what he learned in that course.) A lengthy discussion of what removing the Court's review powers would mean, can be found in the last section of the earlier OEN version of Chapter 5 of "The 15% Solution," which was re-published, here, on OpEdNews.
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Fascism: a definition
"There is a single, all-powerful executive branch of government, in service of a capitalist ruling class that controls, for the most part, the functions of production, distribution, finance, and exchange. There is no separation of the principal governmental powers: executive, legislative, and judicial. There are no independent media. There is a single national ideology, based on some combination of racism, misogyny, religious bigotry and authoritarianism, homophobia, and xenophobia. There is a single political party supporting the movement. There is a state propaganda machine using the big and little lie techniques. There may be a full-blown dictatorship, a charismatic leader, engagement in foreign wars, and the use of the mob/private armies to enforce governmental control."
(Article changed on Feb 10, 2025 at 10:41 PM EST)
(Article changed on Feb 11, 2025 at 7:52 AM EST)
