President Thomas Jefferson Obama

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John Marshall

I’m sending Villanova a letter,  requesting a refund of my law school tuition.

Apparently, the scholarly gentleman they hired to teach me constitutional law back in 1985 was a total fraud.

He actually taught me that the Supreme Court had the right to strike down legislation it deemed to violate the supreme law of the land, even though they were unelected to that office.

I totally believed him, and based the rest of my legal career on that principle.  Now,  I find out it’s a myth, just like Santa Claus and the Tooth Fairy.

Who knew?

President Obama, that’s who.  Earlier this week, our Legal Scholar-In-Chief made the following statement in support of his health care bill, and it sure sounded like a veiled threat to some in the legal community:

I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law.

There’s a big difference between a ‘duly constituted’ law, and a ‘constitutional law.’  And the whole idea about judicial activism involves courts usurping the power of the Legislature and ‘creating’ laws or rights as they did in Roe v. Wade.  It’s not activist to strike down a law that is fatally flawed, no matter how much John and Janie Q. Public might like it.

There are two ways of looking at Obama’s comment, and neither flatters him.  The first is that he was pandering to the leftists in his midst, playing politics with the court just as he did in the Citizens United case .

The second, more ominous possibility, is that Obama truly believes he and he alone is the final arbiter of constitutionality.  Thomas Jefferson had the same kind of delusion when he attacked his cousin John Marshall’s ability to review the constitutionality of legislation, and the greatest Chief Justice who ever presided over the court smacked him down in a genteel but definitive way.



And the principle of judicial review was born.

At least, that’s what lawyers used to think.  Now, given that President Obama (who must be smart because everyone tells us he is) has disabused us of that flawed constitutional notion, I’m starting a Facebook page demanding reimbursement from Villanova.

They have some explaining to do.

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