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by John Charlton

The U.S. Constitution
The U.S. Constitution

(Nov. 25, 2009) — It is often asked whether the usurpation of the presidency by Barack Hussein Obama will ever have a remedy in the courts.  But the fact is that there already is a remedy in the courts:  the ruling of the Supreme Court of the United States in Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803).

That case was the first to expressly indicate that no action of Congress was valid if it contravened the Constitution.  Since the U.S. Constitution requires that a President be a natural born citizen; and since the Supreme Court has in 4 cases used the term “natural born citizen” only in reference to one born in the U.S.A. of parents who were citizens at the time of his birth, it follows inexorably that Obama’s election as president by the Joint Session of Congress, on January 8, 2009, is null and void.  Against this legal conclusion there is no argument.

Here is the crucial text of the Supreme Court’s decision in Marbury v. Madison.

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.

The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then 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.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favour of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power to say that, in using it, the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares that “no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed and a person should be prosecuted under it, must the Court condemn to death those victims whom the Constitution endeavours to preserve?

“No person,’ says the Constitution, ‘shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Here. the language of the Constitution is addressed especially to the Courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the Legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words:

“I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.”

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.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

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  1. Yes, the question is: How do “we the people” enforce the decision put forth in Marbury v. Madison? I have read this ruling before, but this article applies it exactly to what has happened to the United States ever since Lincoln, or even before.

    Lincoln unconstitutionally forced the Southern states to remain in the Union, thereby nullifying the Ninth and Tenth Amendment provisions of the U.S. Constitution. Undoubtedly there were other unconstitutional acts long before that.

    However, since Woodrow Wilson brought in the Federal Reserve, FDR launched his New Deal, and Johnson pushed through his “Great Society,” America has been on a collision course with socialism. The worst possible scenario occurred last year when a young Marxist, almost totally unknown to the American people, campaigned on the lie of “hope and change” and usurped the presidency, knowing full well that he was not constitutionally qualified. This has become the challenge of our day: fighting the enemy who is among us, not he who would invade us from overseas. We have already been invaded, violated in the worst possible way.

    We must find a way to use Marbury v. Madison to oust Obama. I believe Orly Taitz has cited the case, as another commenter said above. But how can “we the people” enforce it? There must be a way, and we will find it.

    1. The States really never left the Union b/c only “We the People” can abolish the Constitution NOT we the states.
      Also Wilson violated the Constitution when he jailed US citizens who spoke out against WWI. FDR’s New Deal none of the concepts are in the Prostitution therefore he violated the Constitution, same as Johnson’s “Great Society”. Truthfully almost every president since FDR has violated the US Constitution in one way or another. Except for maybe Reagan. For example Carter created the Education Department which is no where to be found in the US Constitution.

  2. Mr. Charlton,
    I am thrilled that Mr. Donofrio has publicly recognized the important contributions that you have made in “our” (numerous outraged citizens) quest for the Truth; relative to the Constitutional Requirements to act as President of the US. As I believe one of The Founders is supposed to have said, “We must all hang together, or we shall, most assuredly, each hang separately.” (Or words to that effect.) Therefore, it is not trite to say, “We need all patriots on board.” That was the intent of my previous Post – which required “abbreviation”, in order to maintain civility. Thank you. It is gratifying that you responded so graciously to his gentlemanly remarks.

    Your above excerpt is brilliantly pertinent. In Dr. Orly Taitz’s pleadings to Judge Carter, I believe that she also cited Marlbury v. Madison, to the effect: “… courts do treason to the Constitution, whenever they avoid difficult (unpleasant) cases.” Perhaps you can use this crude paraphrase as the Subject for another Article (citation “cleaned up”, of course) .

    I’m in my 70’s (malfunctioning memory banks), so much patience is required.

  3. Mr. Charlton, I have found your Post N Email news with editorials to be an excellent historical news reporting service that is inspirational, and … I will be sending to you a small donation.

    Mr. Charlton, Congratulations on your professional adventure. I look forward weekly to reading your excellent and informative historical American work.

    All of the best of everything to you and to your loved ones, Mr. Charlton.


    Mr. Charlton replies: Thanks Michael for the donation…I don’t really deserve compliments. Patriotism is a duty of evey citizen, esp. those of us who are natural born citizens….

  4. Based on this ruling the bailouts, tarp, the healthcare bill, cap & trade bill, would all and are all unconstitutional and null and void on their face!

    This would still hold true even IF Obama was eligible as none of these bills are within the powers of Congress to pass into law!

    It would seem to me that the people would have grounds to sue Congress, the Senate and President to hold them all personally liable for any monies they spent on these bills since legally they all usurpered their LIMITED powers given to them by the people through the constitution!

  5. John:

    As usual, an excellent article and critique. Thank You!

    Question: Has the Constitution been “usurped” along with the Presidency? If so, where is our redress?

    Happy Day…Linda

  6. How are taxpayers going to get all the money back that he’s spent via these laws? How will we undo the trillions he’s borrowing and put the US taxpayer on the hook for?

    They seem like impossible questions, but the alternative of letting this illegal regime continue is even worse.