McCulloch v. Maryland [Judicial Hallucination] – Redux

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Supreme Court rulings under the tenure of Chief Justice John Marshall were historically noteworthy in many respects. Opinions rendered by these initial sessions of the court carried the burden of precedent upon which future rulings would be predicated. Additionally, these early courts help define the Constitutional role under which generations of Supreme magistrates would operate within. In Marbury v. Madison, the Supreme Court bestowed upon itself the power of Judicial Review which blazed the path some one hundred and seventy years later for cases such as Roe v. Wade.

The true nature of the court’s power was made quite clear after the court ruled in favor of Indian tribes which were removed from homelands to west of the Mississippi under the Jackson administrations “Indian Removal Acts”. President Jackson not agreeing with the Marshall Court’s ruling threw down the gauntlet by stating, “Justice Marshall has ruled, now let him enforce it.” Read the rest of this entry »

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Gambling on Government [The Lincoln Legacy]

Several weeks ago the Travel Channel presented a show titled “ Las Vegas Sucker Bets” in which it was observed that professional gamblers wager according to probabilities; while the amateur or leisure gamblers wage bets based on possibility. The basis of the professional bet is on the probable outcome of success; the amount wagered is altered according to the perceived odds of winning. Furthermore, a hand in poker, for example, which is deemed to have little chance of success can be withdrawn from the game [folded in poker terminology], whereby no further risk of money is incurred. The amateur bets based on possibility or hope and will continue to wager money on the slightest odds of winning. In other words, the bet is continued until literally the time has come for all players to reveal their hands. It is only at this moment that the amateur realizes all hope of success has faded , along with a great amount of money.

 

The differences between the professional and amateur gambler is a contrast between the actions taken in a risk versus the actions in a gamble.  A contrast that we as individuals and entrepreneurs take into account in our every day lives. Almost every human action we take involves some degree of risk to an unsuccessful outcome, whether it is getting out of bed or crab-fishing in the Bering Sea. Even the most foolish gambler at the Las Vegas casinos is a professional in daily life where actions are determined by the probability of success and reward. Just as in the case of the professional poker player, we withdraw from actions or interactions which are perceived to be harmful.

 

Naturally businesses constantly innovate, explore, or even cease operations under the same premises.  Capital is expanded into products which provide reward or the probability of reward [profit]; while those which have the probability to drain capital are discarded, remember the Edsel, New Coke, or even purple ketchup. A business that continues to expend capital on possibilities in the end is no different than the amateur poker player, broke and no longer sitting at the table.

Simply stated, a risk is a gamble that we can withdraw from at anytime; whereas a gamble is an endeavor we continue either because we are ignorant as to the outcome or worse, we are forced to continue. And so it should be with our approach towards government.

 

The founders were well aware of this concept of risk versus gamble concerning the creation of government [though maybe not expressed in exact words].  They knew through historical evidence that the natural course of any government creation eventually ended in tyranny and oppression. Jefferson stated such:

“Experience hath shewn that even under the best forms [of government] those entrusted with powerhave, in time, and by slow operations, perverted it into tyranny”  

However, the colonists were in a real high stakes game.  Despite their defeat, the British still remained the world’s most formidable military power whose armies were perched to the north and navies ruled the oceans. Spain, the second largest military power, potentially threatened the colonies to the west. The stakes were this: continue a loose federation which would be open to outside military force; or create a central government primarily for defense, which had the potential of following the natural course towards tyranny.  Either option appeared to be a certain gamble wagered with the newly gained liberty.  However, the founders envisioned a structure of government that would be more of a risk than an outright gamble. The risk of human liberty in government could be managed as long as the people retained the right to withdraw or sever its bonds when it was deemed that the continuing the relationship would result in the erosion of  Life, Liberty, and the Pursuit of Happiness.  This concept of withdraw and risk is evidenced by the fact that several colonies had within their ratifying documents the right of secession. Without the right to withdraw, the formation of government becomes a gamble in the truest definition of the word.

 

This then is the true legacy of Abraham Lincoln, and Andrew Jackson before him.  Opting to force the continued relationship upon the states, which resulted in the War Between the States,Lincoln in essence proclaimed that the Constitutional Government would no longer be a risk, but a gamble. A gamble that would require the continued wager of human liberty; no longer would we as individuals be able to control the risks of our daily lives and businesses. We would now be coerced to behave like the amateur gambler who can only believe in possibilities.

 

Today we continue to throw our liberty chips into the pot  against all odds and evidence to the contrary because we believe government can provide us economic security in our old age, “free healthcare” without a decline in medical services, “free education” without intellectual deprivation, “free energy” absent of blackouts or gas lines. We believe it is even possible that through government we are able to live below sea level in the face of tropical storms without getting wet. 

    

Few of us would ever play a game of chance where the only manner in which you could leave the table was to either lose all your wealth or die; and so it is with our liberty. Without the right to withdraw, government becomes the biggest sucker bet of them all.  

 

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McCulloch v. Maryland [Judicial Hallucination]

Supreme Court rulings under the tenure of Chief Justice John Marshall were historically noteworthy in many respects. Opinions rendered by these initial sessions of the court carried the burden of precedent upon which future rulings would be predicated. Additionally, these early courts help define the Constitutional role under which generations of Supreme magistrates would operate within. In Marbury v. Madison, the Supreme Court bestowed upon itself the power of Judicial Review which blazed the path some one hundred and seventy years later for cases such as Roe v. Wade.

The true nature of the court’s power was made quite clear after the court ruled in favor of Indian tribes which were removed from homelands to west of the Mississippi under the Jackson administrations “Indian Removal Acts”. President Jackson not agreeing with the Marshall Court’s ruling threw down the gauntlet by stating, “Justice Marshall has ruled, now let him enforce it.”

Perhaps the greatest influence the Marshall Court had as to the future of the country was not so much the affect a particular ruling or opinion had concerning Constitutional powers, but how it affected the mindset of the American psyche. In McCulloch v. Maryland, Marshall, a strong supporter of the Federalists position, put his stamp on the relationship between the Federal government and the state governments. In his opinion, Marshall opined that the people created the Federal government; therefore the people’s desires are superior to those of the states which make the states subservient to the Federal government. By stating such, Marshall brought forth the idea that the foundations of this country were built on democratic principles instead of republicanism. Some thirty-five years later, Abraham Lincoln would echo this sentiment in the Gettysburg Address by stating that “government of the people, by the people, and for the people….” It would be the death knell for the Republic. In a wave of the judicial hand, the Marshall Court had found within the text of the founding documents, including the writings of Madison in the “Federalist Papers” and the arguments of the Anti Federalists and the ratifying documents of several states, the undisputable evidence and reason that the states held virtually no power to check the encroachments of the Federal government.

Furthermore, Marshall also had ascertained that indeed the Federal government under the Constitution had implied powers as granted by the “Proper and Necessary Clause”. Just as in the court’s discovery of the “Privacy Clause” which formulated the opinions in Roe v. Wade, the Marshall opinions in McCulloch v. Maryland regarding state powers and Federal implied powers seem nothing short of a judicial hallucination. Marshall was correct in a sense to reason that the people had created the Federal government and that the true nature of power rested with the people. But Marshall overlooked an obvious step in the creation process: the people also had created the state; after all the states were not formed by some great geological shift or cosmic wind. No, the states were formed originally by separate groups of distinct individuals who bonded in common interests, such as some states which were organized along homogeneous religious viewpoints. So in essence both the states and the Federal government were creations of the people.

In Federalist No. 45, Madison gives attention to this Federal-state government relationship. In this particular essay, Madison leaves no doubt as to the nature of this partnership.
Madison writes:

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the
United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. Even the House of Representatives, though drawn immediately from the people, will be chosen very much under the influence of that class of men, whose influence over the people obtains for themselves an election into the State legislatures. Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them. On the other side, the component parts of the State governments will in no instance be indebted for their appointment to the direct agency of the federal government, and very little, if at all, to the local influence of its members.

In light of these views by an individual closely associated with the drafting process of the Constitution, Marshall’s logic is perplexing at best. If a state, empowered by those citizens who reside within it, is able to sustain its existence absent of a dominant Federal power; then how can it be concluded that the Federal power is supreme. As Madison noted, the make-up of the Federal power was almost entirely dependent upon the actions of the individual states. Furthermore, it must be remembered that prior to the ratification of the Fourteenth Amendment, individuals were considered citizens of states first and the national government second; a concept totally vacant from Marshall’s opinion.

The second part of the McCulloch ruling that completely ignores constitutional thought is the idea that the Federal government possesses implied powers. Again quoting Madison from Federalist No. 45, he states:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State

The legacy of John Marshall is not just that of Supreme Court Justice and the pioneer of judicial activism; he also appears to be the father of modern day political liberalism where facts and historic reference are conveniently forgotten in the pursuit of collective power.