The Nuclear Option on Democracy
Marbury V. Madison Rides Again? Vance and Trump are saddling up.
Well, week one of the new Trump administration has passed. Sadly, in my opinion, it has been darker and more malevolent than I had feared. It is clear that we are now seeing Trump 2.0 and it does not look promising for our democratic institutions.
If Trump 1.0 was “Trump as buffoon” 2.0 is now “Trump as tyrant.”
The most blatantly obvious of the actions of Trump 2.0 was an executive order directly contravening the constitutional provision for birthright citizenship. Donald Trump falsely claims that “as we all know, the US is the only country that provides birthright citizenship.”
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Camp in the Lupine
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Were that true, it would only make the intent of the Founders clearer. However, despite President Trump’s blatant lie, more than 30 nations have birthright citizenship equal to ours, and nearly 100 have some form of birthright citizenship.
The judge in the case, U.S. District Judge John C. Coughenour, a Ronald Reagan appointee, described the executive order. as “blatantly unconstitutional.” Yet, he has issued only a temporary stay on the Presidential Executive Order in anticipation of hearing the case.
You’ve heard the phrase before: “The Nuclear Option”.
Up until now, it has been the threat by one political party or another to disrupt the accepted norms and standards that have developed over time to encourage our elected officials to seek a consensus that both parties can live with.
The last time that The Nuclear Option was invoked, it was just a tactical nuke. It wasn’t intended to blow up our democracy, just to secure an advantage for Republicans and it led to the packing of the current US Supreme Court and ultimately to two major SCOTUS decisions that may be paving the way for a much more dangerous threat to democracy itself.
I’ve been pretty clear since I began writing this column that I am disgusted with the leadership in both political parties, and, in general, there is a growing and dangerous lack of faith in our institutions, with the Supreme Court the latest target. Yet overall, with the notable exception of SCOTUS, the Judicial branch of government has held the line for democracy better than the executive and legislative.
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Clouds Over Mount Crawford
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There have been plenty of Supreme Court decisions that both sides find objectionable, but the two SCOTUS decisions - Dobbs and Trump Vs. United States - particularly in light of the threats posed by Project 2025, threatens to rend the fabric of democracy, perhaps beyond repair.
The Dobbs case has shown that the deeply corrupted US Supreme Court will not hesitate to overrule even precedent that has been the law of the land for 50 years. Furthermore, “Trump Vs. United States”, the 2024 case that dramatically broadened the immunity of the President for otherwise illegal acts committed within the scope of his official duties, virtually creates carte blanche authority to engage in activity outside the scope of the law for the President and within his Pardon authority for those he authorizes to engage in such activities.
In order to make the case for the grave, inherent danger we face, we need to revisit a civics lesson that most Americans should know about, but few actually do. Public education in at least the past two decades has nearly obliterated Civics in schools, what, at one time, was common knowledge . . . The 1803 case of “Marbury vs. Madison”.
Marbury v. Madison was not a particularly “sexy” case. It involved a “turf battle” between presidential administrations over an appointment that had been made improperly by the outgoing administration of John Adams, resulting in its rejection by the incoming Jefferson Administration.
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Banded Rock, Livermore Falls
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Nowadays, we would see the actual court case as a bit of a snooze. However, in the early years of our Republic, even seemingly trivial cases were important because every case was building precedent for future decisions.
In deciding the outcome of the court case, the Supreme Court made a ruling on the specific question (Adams' appointment was not seated). More importantly, it used the case to establish an important doctrine known as “judicial review, which gives the Supreme Court the power to strike down laws that violate the Constitution.
As a result of this:
The Supreme Court established judicial review, which gives the courts the power to strike down laws that violate the Constitution.
The Supreme Court became the primary interpreter of the Constitution.
The judiciary became a coequal branch of government, alongside the executive and legislative branches.
“But wait, you say! (because you are a thoughtful citizen). "What happens if the President just chooses to ignore the court’s ruling? After all, the courts don’t have armies to enforce their mandates. Aren’t they simply relying on the goodwill of the other two branches of government to support their ruling?"
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Painted Highlander
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Of the three branches of our government, the judicial branch has, by far, the lowest budget, and enforcement of its rulings relies completely upon the acceptance of all three branches of government to provide the authority (and the funding) necessary to hold up this third leg of our coequal “constitutional stool”.
Fortunately, for most of our history, the three branches have, in fact, come through for us. However, not always. One of the times represents a proud moment in our history. The other a moment of shame.
In 1957, President Dwight D. Eisenhower called in the 101st Airborne Division to Little Rock, Arkansas, on September 25, 1957, to escort nine Black students into Central High School. The students, known as the "Little Rock Nine, were prevented from attending by Arkansas Governor Orval Faubus. Ike was respecting and defending the Supreme Court’s Brown v. Board of Education decision. Board of Education ruling of the Warren Court.
However, one of the great stains of history was Andrew Jackson’s reaction to a ruling by the Marshall Court that the Indian Removal Act was effectively unconstitutional.
In 1832, the John Marshall Court ruled on the Indian Removal Act through the case "Worcester v. Georgia, where Chief Justice John Marshall established that the Cherokee Nation was a sovereign entity protected by federal law and not subject to Georgia state laws, effectively opposing the Indian Removal Act's forced relocation policy.
President Jackson, probably the President most admired by Donald Trump and J.D. Vance, reacted by declaring, “John Marshall has made his ruling - now let him enforce it,” knowing full well that Marshall had no effective way to enforce it. Jackson proceeded to order the removal despite the court's ruling.
Jackson’s refusal to respect the Supreme Court ruling led to what most Americans will remember as an act of genocide against peaceful native nations, today known as “The Trail of Tears,” a forced removal of Native American People that resulted in thousands of deaths from starvation and disease among the Cherokee, Choctaw, and Chickasaw nations, among others.
Fast forward to today.
One year ago, JD Vance was asked about Project 2025’s call to remove civil servants throughout the federal government. He specifically referred to Jackson’s remarks in defiance of the Court in his response.
Then, after taking office on January 20, 2025, Donald Trump issued his recent Executive Order directly in opposition to the US Constitution.
When the two highest elected officials in the country blatantly defy the Constitution, creating their own version of our sacred document by fiat, the poison has moved into the bloodstream.
Without the respect for and adherence to the Constitution, there’s not a lot worth holding onto . . . maybe Canada? Tune in next week for my thoughts on that.
Author, podcaster, artist, activist, social entrepreneur and recovering politician. A three-term State Senator, 1994 Democratic nominee for Governor. His art (WayneDKing.com) is exhibited nationally in galleries and he has published five books of his images, most recently, "New Hampshire - a Love Story”. His novel "Sacred Trust" - a vicarious, high-voltage adventure to stop a private power line - as well as the photographic books are available at most local bookstores or on Amazon.
Anamaki Chronicles Substack has no paywall, we exist through the generosity of subscribers and the purchase of art , books and merch from the Anamaki.com website and from Wayne’s gallery of images.
Wayne lives on the “Narrows” in Bath, NH at the confluence of the Connecticut and Ammonoosuc Rivers and proudly flies the American, Iroquois and Abenaki Flags, attesting to both his ancestry and his spiritual ties. Anamaki is a derivative of an Algonquin word meaning “abiding hope”.
Art, Columns and Podcasts are produced at Anamaki Productions, Winter Warrior Studios in Bath, NH.
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Notes:
Marbury v. Madison Details: Oyez.org
https://www.oyez.org/cases/1789-1850/5us137
Wikipedia:
https://en.wikipedia.org/wiki/Marbury_v._Madison
The Enduring Legacy of Marbury v. Madison (1803)
