Quote of the Day
From President Jackson's Bank veto message:
It is maintained by the advocates of the bank that its constitutionality in all its features ought to be considered as settled by precedent and by the decision of the Supreme Court. To this conclusion I can not assent. Mere precedent is a dangerous source of authority, and should not be regarded as deciding questions of constitutional power except where the acquiescence of the people and the States can be considered as well settled. So far from this being the case on this subject, an argument against the bank might be based on precedent. One Congress, in 1791, decided in favor of a bank; another, in 1811, decided against it. One Congress, in 1815, decided against a bank; another, in 1816, decided in its favor. Prior to the present Congress, therefore, the precedents drawn from that source were equal. If we resort to the States, the expressions of legislative, judicial, and executive opinions against the bank have been probably to those in its favor as 4 to 1. There is nothing in precedent, therefore, which, if its authority were admitted, ought to weigh in favor of the act before me.
If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve.
"The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others."
What non-sense! Watch this video and be enlightened:
https://www.youtube.com/watch?v=zEkuORtuOlY
To think that a hick like Jackson could actually think and write well without having had an Ivy League education much less a GED. Well said and very appropriate to the present, Mr. Jackson.
Is there ANY chance that such wisdom will be commonplace enough that we, the people, will insist that our gov't return to Constitutional boundaries, simultaneously freeing entrepeneurs of all sizes to create wealth by eliminating vast layers of Fed regulatory agencies, and dropping taxes to a tithe of their present levels? Any chance that this will happen before the gas and food trucks stop rolling?
I'm sorry, but I think Andy Jackson was wrong here. If the courts' decisions are not binding on the other branches of government, then who is the final arbiter of law in this country? I think in Andy's mind it was the executive, but that is a fast road to dictatorship.
No, as much as the court has abused its authority over the years, it must be the final arbiter. Nothing else makes sense.
1. If I understand Jackson correctly, he is saying the courts have erred in their rulings and that he must veto the legislation because it is incongruent with the Constitution no matter what the courts say. He could also have vetoed in on the grounds it was inadvisable policy. It is doubtful that the courts ruled that Congress and the President were by constitutional provisions required to reissue a charter to the 2d Bank of the United States.
2. The executive is obliged to enforce the courts' decisions in particular cases. Is the executive or the legislature obliged to regard judicial opinions as binding on them as these elected parties go about their business? A legislature is not a lower court.
3. The misfeasance of the judiciary in the last 50-odd years has been so severe that they have forfeited their claim to deference.
I agree with Redwald, but I posted a funny video about federal judges because Art has a fair point.
Also a good deal of what is true about what Jackson said can be found in dicta in federal cases.
That is very few judges would contest that "Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others."(except for judges, who must follow binding precedent, but not persuasive precedent(from other circuits)).
In fact every constitutional law proffessor teaches the Constitution as they understand it, and not as it is understood by others, and every law student also has derivative understanding.
Certainly Obama has a disagreement with the SC on say Citizens United. Obama likely has a different understanding of the precedent that deals with commercial speech, and he finds some arguments more persuasive than others.
I don't think the president or the Congress are bound by supreme court precedent, or have to agree that a state interest is compelling or that a certain standard of review should apply.
In fact if you have different ideas about what Rights are fundamental to ordered liberty, then you disagree about the standard of review.
Federal district and Circuit judges howhever are bound by precedent from the Supreme Court, and are obligated to strike down laws that are not congruent with precedent.
But even Federal district and Circuit judges can sometimes disagree about what the law is.
Since a great majority of the laws passed by congress involve a rational basis standard of review, you actually see the courts being extremely deferential to congress and the executive branch.
There are a lot of things that congress can't do, even some potentially good ideas such as a line item veto, are unconstitutional. I think Congress can pass unconstitutional laws, if thinks that they should be consitutional.
You get your attorney generals to argue that you have a really compelling state interest, that the law is narrowly tailored, and argue that the standard of review should be a notch down...say intermediate scrutiny, or rational basis.
If congress or the president can make a strong enough argument, they can even pass strict scrutiny. This happened in Korematsu (but since this didn't turn out so well...)
As a side note, if you are an originalist interpreting the constitution of Tennesse, you have to give some weight to Jackson as a founder, and early judge on the Tennesse Supreme Court.
You could simply see Jackson as a sort of constitutional law theorist who generally favored a rational basis standard of review for whatever he strongly felt needed doing at the time. On the other hand this is too harsh, he actually had some respect for the constitution, and tried to abolish the electoral college by a constituional ammendment.(not by simply declaring it unconstitutional.)
His use of bank funds was probably unconstitutional. On the other hand Jackson probably was the first to articulate the idea that seceding from the Union was unconstitutional. Lincoln would make the same claim, except that Lincoln disagreed with the JusticeTaney(appointed by Jackson) and Dred Scott.
Also when the Supreme Court said that the Bank was constitutional, they didn't say that is wasn't discretionary. This is the case for all things which are constitutional under a rational basis standard. The Federal government can do them, but it doesn't have to do them in a specific way. This is my loose reading of McCulloch v. Maryland.
In this sense Hamilton and Jackson aren't that far appart, both simply disagree over what is necessary and proper. The Bank is constitutional on a rational basis standard. A disagreement over the compelling nature of the legitimate state interest changes. It is within the compass of national authority and thus constitutional. If it is constitutional for the federal government then the states are pre-empted.
"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." If Congress thinks a national bank is necessary, then using the necessary and proper clause, we basically apply a rational basis standard.
The Bank is constitutional, but this is a constitutional argument that hinges upon a fact based determination of what is "necessary and proper".
If the standard of review is rational basis then loosely speaking in terms of constitutionality you can say that the following statements are true:
The Bank is Constitutional.
The absence of a Bank is Constitutional.
A speed limit is Constitutional.
The absence of a speed limit is Constitutional.