Thursday, March 13, 2014

Passing by on the Other Side

West Baden, IN – In his 1977 book The Devils Virtuosos, David Downing tells the tale of fifteen generals of Adolf Hitler’s Third Reich. The men upon whom the fate of thousands hung, some of them members of the old conservative guard, who watched, then aided, the march of the Nazis across Europe.

But there is something mentioned in the work that may surprise some. Two of the generals, who fought down to end, aiding Hitler even in the final, mad assaults in the last days, when there were no Panzers or U-boats left with any fight in them, and only useless loss would result. These were Manstein and Guderian. Both survived the war, and afterwards wrote their memoirs.
Guderian speaks of the ideals of Christian Western Culture which he fought for. Both men were generals who claimed they were Christians, and defending their country from evil, who believed the old slogan Theirs not to reason why. Both were high command yet claimed to have had no idea what was going on in places like Ravensbrück Prison Camp. Another of the Reich’s top men, Albert Speer, said he also did not know, although, in 1944, he was warned not to visit a “certain establishment” he did not ask what it was, and never visited.
They, in their own writings, saw themselves as soldiers. They were not politicians, not philosophers, they felt their only job was to fight. If things were going on elsewhere….But it was not only these German Generals, members of what is heralded as one of the most evil empires in history, who did this.
It is done by many every day. In the years surrounding World War II, it could be argued that at times, especially before 1941, it was done by almost the whole world. Like the Pharisees who saw the man laying the ditch, blood caked and battered, they passed on the other side, because it was none of their business.
It has been done, and will be done. Shutting the eyes tightly against the evils that would stare one in the face if you only dared look, which you do not, because…what could you do anyway? The actions of these generals, who could fight for a man whose men bled the bodies of little children dry for blood transfusions for their own men, with the children still living, reminds one of a poem, and the consequences:

First they came for the Socialists, and I did not speak out-- Because I was not a Socialist.
Then they came for the Trade Unionists, and I did not speak out-- Because I was not a Trade Unionist.
Then they came for the Jews, and I did not speak out-- Because I was not a Jew.
Then they came for me--and there was no one left to speak for me.

Andrew C. Abbott

Tuesday, March 11, 2014

Marbury v. Madison: The Power of the Court

West Baden, IN –  It was 1801, and John Adams and his administration were on their way out of office, having lost their bid for reelection to Thomas Jefferson, now president elect. In a last attempt to ward off the fall of Federalist Power, the Midnight Judges were appointed. A group of men that Adams appointed to newly made posts, to keep the government Federalist, in-between the time he lost election, and Jefferson’s swearing in.

The appointments were approved by the Senate, but there was not enough time for all of the credentials to be delivered before Jefferson was sworn in. As soon as he took the oath of office, Jefferson ordered the new appointees not to be given their commissions, thus de facto nullifying Adams’ appointments.
William Marbury, who had been appointed by John Adams to be the Justice of the Peace over the DC area, filed a writ with the Supreme Court, stating it was their jurisdiction to be certain he received his commission by ordering a writ of mandamus on Madison, forcing him to hand it over.
The court heard the case, and on February 24th, 1803, issued its decision. The main argument was whether or not the Supreme Court had power to give a writ of mandamus, which Congress said it did. The court ruled that Madison should have given Marbury his commission, because he had a right to it.
The Judiciary Act of 1789 stated that the Supreme Court could then order Madison to hand over the commission. Chief Justice John Marshall said not it was not so. In his statement, Marshall would set in stone precedent that continues to this day: Judicial Review, the power of the court to declare unconstitutional the acts of the congress.
Marshall declared that even though the 1789 act had given him power to demand Madison give Marbury his commission, the Constitution did not, thus, he overruled congress, and said although Marbury deserved the commission, he, as a Supreme Court Judge, could not make Madison give it to him. The vote was a unanimous 4-0. (The court then being smaller.)
The case went down in history, as 5 US 137, (1803) in the fifth volume of the court’s decisions, the explanations beginning on the hundred and thirty-seventh page. But it went down as more than that, because, 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….an act of the legislature repugnant to the constitution is void.
Thus Marshall asserted the power of the constitution, everything else notwithstanding. He then stated “It is emphatically the province and duty of the judicial department to say what the law is.” It was certainly not a new doctrine, Sir William Blackstone of England had said years before “There is no such thing as a bad law.” If the law is bad, it is not a law.
Marshall stated that to disagree with this would be to close your eyes to the constitution.
There was outcry. The president called it “a very dangerous doctrine indeed” that the court was the above the legislatures in interpreting the constitution. Others said the court had no power to overrule congress, and that Marshall himself should possibly get into trouble.
According to the Congressional Research Services, there have been 163 acts of congress overturned by the court, although they have historically been very careful, and only using it as a last resort. Congress can also forbid them to rule on certain issues.
Marshall finishes his case by stating that the oath of office itself makes the constitution the supreme law of the land:
“Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him and cannot be inspected by him.
“If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.”

Congress was overruled, the Supreme Court did not have the power to issue a writ of mandamus. William Marbury never served as Justice of the Peace for the District of Columbia.

Andrew C. Abbott

Monday, March 3, 2014

The Story Goes On

West Baden, IN – “Cunning only helps once, for after that, you have a reputation for it, and no one trusts a cunning man.”
In the Greek stories of the Iliad and Odyssey, among the many characters are several, almost professional liars. One of them lies so often that by the end of the stories, he cannot get anyone to listen to him when he says just about anything, no matter how probable that is true. Simply the fact that he said, by the time he is done, causes people to stop listening.
It is, by the way, one of these tricksters who thinks up the idea for the Trojan horse, and another one convinces the Trojans to pull it inside their city. In the future history of mankind, it is not likely that anyone with any sense of history would pull a fifty foot tall horse into their city without checking inside. The trick has already been used once. If the Greeks had another city to invade, it would have been beyond difficult, even had they not lost seemingly almost their entire army.
Many films and novels about politics are full of sudden, brash statements by politicians, who have had enough, and are ready to finally fight, burning all bridges, and finally telling the truth.
In the early 2,000s, during the Bush presidency, prime minister of England Tony Blair was attacked for his close relationship with America, and asked why he did not just tell the president off.
In the film that came out around that time, Love Actually, there is a scene in which the prime minister of England does just that. “We are a small country, but also a great one. We are the country of Shakespeare…It has been said that bullies only respond to strength. In the future, the president can expect me to be much stronger.” In English theatres, the scene was greeted with cheers and applause. And Blair was asked by the media why he did not do that, “why not stop being an American colony?” He refused to.
Tony Blair understood something about history. It goes on. We cannot burn our bridges, or we may find ourselves on an island with the tide rising and nowhere to go. It makes a great story line, but not good strategy. In films there is an ending. In politics there is a tomorrow.

Andrew C. Abbott