Liberty and Accessibility

Tuesday, June 26, 2007


---------- Forwarded message ----------
Date: Tue, 26 Jun 2007 06:15:54 -0700 (PDT)
From: Roderick T. Beaman <>
To: Libertarian Exchange <>,
Libertarian Party of Jacksonville <>

The folloowing is a link to and the text of an article
that was published today under my by-line
at Ether Zone.



The recent decision by the Fourth Circuit Court of
Appeals in al-Marri vs. Wright could set the stage for
the most momentous constitutional crisis in history.
Yet, the media have ignored the implications.

When Congress impeached Pres. William J. Clinton in
1998, they trumpeted it as a constitutional crisis.
It was no such thing. The possibility of impeachment
was a process that the Founders were fully aware of
and had prepared for. A president had been impeached
once before and the Republic had survived. The Senate
trial was conducted and, by a single vote, Andrew
Johnson was spared removal from office. One of the
members, Alcee Hastings, of the very House that voted
to impeach Clinton had himself been impeached and
removed from the federal bench in 1989 on corruption
charges. So it was an event with ample precedent.

The al-Marri vs. Wright decision by a 2-1 vote, has
the potential for a full scale unprecedented judicial
airing of the extent of presidential powers. I cannot
recall any such case that can even approach this in
possible scale.

The case will be appealed to the full Circuit Court
and perhaps even to the Supreme Court if the full
Circuit Court rules against the administration. The
Fourth Circuit is viewed as one of the most
conservative, in the current parlance, in the country
and The Supreme Court is dominated by appointees of
Republican presidents.

It's obvious that Ali Saleh Kahlah al-Marri will not
be released as a result of this decision, nor and
adverse decision by the full Circuit Court. But how
about if the Supreme Court rules against the
administration? What if they still refuse to release
him based upon the powers that the office has
arrogated to itself under this president and other
previous presidents? What then? That would be a
constitutional crisis. And one that is long overdue.

Supposedly, Andrew Jackson, threatened to defy a
Supreme Court decision, in Worcester vs. Georgia, with
the statement. "John Marshall has made his decision.
Let John Marshall enforce it." That is in dispute but
what isn't in dispute was that the Supreme Court had
no power to enforce the decision without the
assistance of the executive.

Almost invariably, the major confrontations of my
lifetime over Supreme Court decisions have revolved
around disputes between the Supreme Court and the
states. When Gov. Orval Faubus of Arkansas tried to
defy a Court decision on integration at Central High
School in Little Rock, Pres. Dwight Eisenhower
federalized the Arkansas National Guard to ensure
entry for the black students. Later, Pres. John
Kennedy would federalize the Alabama National Guard to
ensure the integration of The University of Alabama
against the defiance of Gov. George Wallace.

But all three of these decisions were over the
authority of the federal government vs. the states.
In the latter two, the federal authorities were in
sympathy with the court decisions. This could involve
two branches of government that will be antagonistic
toward one another.

There are just nineteen months left in this Bush
presidency. Both sides will be introducing precedents
some of which could go back to the very beginning of
federal assault upon states' and individual rights,
including the very granddaddies of them all, the two
Johns of judicial arrogance, Jay and Marshall.

This in and of itself begs for a question. Will this
adminstration raise the obvious original question as
to the Constitutional justification for the Supreme
Court to decide what the document means? In itself
would be revolutionary in scope.

The history of this republic under the Constitution
has been one of destruction of the very idea of
federalism and the superiority of the states and
people over the federal government. The greatest
violence to the Ninth and Tenth Amendments has been
done under the most revered and reviled presidents,
Abraham Lincoln, Franklin D. Roosevelt, Lyndon B.
Johnson and now George W. Bush with the acquiescence
of the Congress. It would be the epitome of irony if
the people who have been applauding the ravages of the
first two, are forced to re-examine their consciences
over this president.

The arguments could rage back and forth. I think the
greatest nightmare for the Beltway crowd would be a
re-evaluation of their mindsets, if they still can
actually think about the implications of what they
espouse, which is doubtful.

And then the final question will have to be addressed.
Suppose after all the agonizing arguments and an
adverse decision is handed up against the
administration and they still refuse to release him?
What then? Who enforces it? And I think this
president is just obsessed enough to do it. That
would be a true constitutional crisis because there is
no provision for it.

And what will it mean for all the pundits in the
country? Will people like Ann Coulter and Rush
Limbaugh reassess their endless equating things
Republican with the good of the country? What about
the insufferable Brit Hume who once dismissed the true
constitutionalist, Ron Paul, as a crank? What about
the Lincoln and FDR scholars who have made careers out
of excusing their violence against the Constitution?
Will they finally realize that the Constitution is not
just a menu for a la carte selections?

Personally, I hope it goes just this way. We are in
need of it.

Roderick T. Beaman
The Crazy Libertarian

James Madison 'When the government fears the people it is a democracy....when the people fear their government it is tyranny...'

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