does one nation under god painting put a radical spin on judicial review

Does “One Nation Under God” Painting Put a Radical Spin on Judicial Review?

One Nation Under God Painting, by Jon McNaughtonPerhaps you’ve seen it already.  A painting by a conservative has been the talk of the day in what seems like much of the lefty blogosphere, but probably some righty sites too.  The painting (linked to slow loading Google cache because the site is down), by Jon McNaughton, depicts Jesus Christ surrounded by a number of figures from history as well as depictions that exemplify the artist’s political commentary.  For example, the things the artist are against are looking away from Jesus, while things the artist supports look toward him.  Those looking away are supposedly “liberal” things, but to me the inference seems to be that they’re un-American.  I make this conclusion because while the things he supports are on the right-side of it (from Jesus’ point of view), some of the depictions don’t fit neatly into a “liberal-conservative spectrum.”  Therefore, these things are probably, to McNaughton, American in nature, as opposed to what is shown on the left side.

You can mouse around to each of the figures and a description of each one’s significance will pop up.

However, what caught my eye the most was one of the documents on the steps.

McNaughton depicts these as Supreme Court decisions with which he disagrees.  The one that I found most interesting was the one closest to Jesus, which the description identifies as the 1803 Maybury vs. Madison decision in which the Court ruled it has the power of judicial review, which today forms the backbone of our justice system.  The description is as such:

This case opened the door for judicial review of the constitution and made it possible for activist judges to be appointed and to be able to interpret the constitution.

While judicial review is not without its opponents, the precedent has now been well entrenched for over 200 years.  I’ve never seen any argument against it myself.  Even the most conservative of justices, including Antonin Scalia have not, to my knowledge, spoken unfavorably of it.  So, McNaughton’s view is so far to the right it is quite nearly flung out of the political spectrum entirely.

The description as written is interesting, because if he truly believes what he’s writing, he’s pinning people like Scalia as “judicial activists,” and there are certainly not many people who’d call him a judicial activist.

What say you all?  Was the enactment of judicial review itself an early form of judicial activism, and is the doctrine constitutional?

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  1. Jay_C

    October 7th, 2009 at 15:34

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    #1

    I don’t know if “unconstitutional” is the word I would use, but with judicial review, judges can declare laws unconstitutional – (judicial review gives judges the power to adopt amendments the people, through their representatives, have rejected. “Constitutional law,” the body of decisions of American judges implementing the Constitution, not only does not reflect the people’s wishes in adopting constitutional language, but we have seen that at times flatly contradicts it, so to me, it is Judicial Review vs. Constitutional Government, (Apples vs. Oranges.) It is a legal way around the Constitution. To me, the problem there is there have always been ways to change the Constitution, and that is through the “slow”, amendment process, we don’t like slow anymore.

    Judicial review is a way; it seems, to “fast track” decisions that at times shouldn’t be fast tracked. This begs the question, what is right / wrong with the

    Original way and what is right / wrong with Judicial review? Which better serves the people and their associated views in this Constitutional Republic?


  2. Allen S

    October 7th, 2009 at 16:21

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    #2

    Even if we were guaranteed in perpetuity that every Justice would abide by whatever you take the right standard of judicial purity to be, the question would still arise: what body gets to *decide* whether a law or official action is constitutional? That is what Madison v. Marbury settled. The President doesn’t get to decide (after all, the President’s own actions might be unconstitutional) nor does Congress (the Constitution would be a Constitution in name only if legislative whim settled constitutional questions.) What Madison v. Marbury settled is that the Court is the branch of government that gets to decide constitutional questions.

    There are lots of interesting questions about what good judicial review should be like, and lots of interesting questions about when and in which cases the court has fallen short. But of the three branches of government, it’s hard to see what case could be made for saying that some other branch than the Court should be charged with deciding Constitutional cases.


  3. Michael Merritt

    October 8th, 2009 at 01:03

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    #3

    @Jay_C

    It is a legal way around the Constitution.

    Forgive me if I’m wrong, but you appear to be making the same mistake the painter does, by conflating judicial review with judicial activism. The power of judicial review is that the Supreme Court can decide whether or not a law is unconstitutional, but it does not necessarily mean that the power will be used to enact social change.

    Justices like Scalia, Roberts, Alito, etc. are those who are often most celebrated by conservatives as justices who don’t do that (though I have seen arguments that all of them have ruled favorably when it comes to executive power which, in my opinion, is just another form of judicial activism).

    However, if I take your argument at face value, what you’re saying is that there is no recourse for legislation or parts of legislation that are blatantly unconstitutional. Surely as a conservative you would want the Court to toss out parts of Obama’s economic or healthcare plans that are unconstitutional?

    Surely as a libertarian-leaning conservative (as you have demonstrated in previous comments), you want scrubbed the parts of the Patriot Act or other national security legislation that are unconstitutional?

    I mean, what other recourse would there be when the country finds itself with two of the governmental branches held by one party? You wouldn’t be able to stop them from passing whatever legislation they wanted.

    Judicial review might invite the specter of judicial activists, but just because it’s there doesn’t mean that all actions taken under its purview are to enact laws that were never passed by the legislature. It is much more than that, and frankly, I wouldn’t have it any other way. I see it as a necessary check on Congress and the president.


  4. Interested

    October 8th, 2009 at 05:01

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    #4

    The Doctrine by itself is fine and good. It is the method upon which the review is performed that is too fluid for such a critical task, and that is what leads to Judicial Activism


  5. Michael Merritt

    October 8th, 2009 at 05:28

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    #5

    The Doctrine by itself is fine and good. It is the method upon which the review is performed that is too fluid for such a critical task, and that is what leads to Judicial Activism.

    Now this is the argument I’ve been looking for. We can debate day and night how judicial review is used by different justices. But to dismiss it entirely, as McNaughton appears to do, isn’t the right way to go about it.


  6. cLive 😉

    October 8th, 2009 at 18:38

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    #6

    Mouse over some of the other areas for “insights”: the flag – “50 stars – some brighter than others”, the baby of the mother’s lap – “handicapped child”. WTF?


  7. Jay_C

    October 8th, 2009 at 20:21

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    #7

    I am saying that judicial review can usurp the power of the elected branches of government. It is true though, that the same exists in times like these, when Congress is overrun with one particular party, that can basically just “vote their way” to what they want. But which has the potential to do more damage? A Congressperson that can be voted out of office if they don’t do the bidding of their constituency? Or a Judge that may be there for life, that may turn take advantage of judicial review, and turn it into Activism?

    So actually, let me rephrase what I wrote above… To me, it is:

    Judicial Review vs. Constitutional Government vs. Congressional “ling, cheating, stealing and Bullying”

    or in other words, (in order) Apples, Oranges, and rotten Pears… I’ll take Oranges when I can ;)

    Don’t get me wrong, I get you point… and it makes sense to me in a best case / reasonable case scenario, but what about worse case… I guess I’m just an old fashioned Plan for the worst, hope for the best kind of guy…


  8. Jay_C

    October 8th, 2009 at 20:23

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    #8

    sorry, I also meant to say… these are not “reasonable times”, nor “best case times”.. in my opinion..


  9. Michael Merritt

    October 9th, 2009 at 08:36

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    #9

    @Jay_C

    I am saying that judicial review can usurp the power of the elected branches of government.

    Just because it can doesn’t mean it always will. For the most part, judicial review has been used for non-nefarious purposes. And it has also done wonders for protecting the 1st Amendment, and more recently, the 2nd.

    It is true though, that the same exists in times like these, when Congress is overrun with one particular party, that can basically just “vote their way” to what they want. But which has the potential to do more damage? A Congressperson that can be voted out of office if they don’t do the bidding of their constituency? Or a Judge that may be there for life, that may turn take advantage of judicial review, and turn it into Activism?

    There is reason to be concerned about who we put in to the robes, which is why they are vetted by Congress, fairly thoroughly. I would also point out that in recent years the justices who have most changed their judicial philosophies have been appointed by Republicans. So for all their worrying about appointing activist judges, the Republicans’ track record for appointing ones who stick to a conservative philosophy is against them. We’ll see how the recent batch does over the next decade or so; maybe their luck will finally turn around.

    As for Congress, yeah, you can vote the people out, but it doesn’t mean that reversing legislation is simple. As they say, it’s very difficult to dismantle bureaucracy one it’s been created. Case in point: Social Security reform. I would think that this has to be one of the reasons Republicans are fighting so hard against the public option; because, one it is law, it will be near impossible to get rid of.

    I guess I’m just an old fashioned Plan for the worst, hope for the best kind of guy…

    I am also sometimes a “this could be what happens in the future” kind of guy, particularly when it comes to passing horrendous “national security” legislation. But despite a relative minority of high profile cases, judicial review’s reputation as a good tool seems to me to be well established.


  10. Jay

    October 9th, 2009 at 21:24

    A web cartoonist put up a copy of the painting, changing the “zoom” comments on it:

    http://www.shortpacked.com/McNaughton%20Fine%20Art.htm

    A lot of them are random humor but many of them raise fine points. For example, for Madison vs. Marbury he put:

    “This horrible piece of paper allowed activist judges free reign to declare just about anything unconstitutional! Slavery, discrimination, you name it! What fools we were.”

    For a good number of presidents, he also put up actual quotes from or about them, decrying the church, religion or God.

    Franklin: “Lighthouses are more helpful than churches.”

    Washington: “…on the days when the sacrament of the Lord’s Supper was to be administered, Washington’s custom was to arise just before the ceremony commenced, and walk out of the church.”

    Adams: “God is an essence that we know nothing of. Until this awful blasphemy is got rid of, there never will be any liberal science in the world.”

    Jefferson: “Question with boldness even the existence of a God…”

    And so on…

    Just goes to show you the sheer extreme right-wing bias the painter put into that piece.


  11. Steve

    October 10th, 2009 at 10:10

    http://www.shortpacked.com/McNaughton%20Fine%20Art.htm

    I believe this is the proper criticism.


  12. Michael Merritt

    October 10th, 2009 at 17:21

    I did like the rebuttal painting, Jay, but it does fall short in some places. He likes to point out that many of the figures portrayed were Unitarians. I’m not sure if he’s conflating them with the modern day Unitarian-Universalist church, but if so that’s not right. Unitarianism is still Christianity; they just have differing views about the relationship of Jesus Christ to God, much in the same way that Mormons have a differing view of Christianity.

    No doubt that many contemporaries of those figures might have considered them not proper Christians, and it is perhaps this contrarian view of Christianity that also gave them the mind to be revolutionaries, but to act as if they were not Christians when they actually were is just trying to be revisionist.

    As for Thomas Jefferson, the rebuttalist describes him as “basically an atheist,” which is also a misrepresentation. Jefferson had a belief in God, and his editing of the Bible was to tear out the parts where Jesus performed miracles. He still liked the guy as a teacher of morals. Jefferson was still a believer, albeit one opposed to traditional Christian doctrine, even if he is almost quite literally taken as the patron saint of atheists by that group.

    As for Robert Livingston, he was recalled by the New York Assembly, because they were against the Continental Congress’ intentions, but I see no evidence that Livingston himself was against the Declaration. He helped draft it!

    As for Fisher Ames, [citation needed].


  13. Ron

    October 12th, 2009 at 21:56

    What we need, in order for “We the People” to be the final arbiters of American Law, is a Constitutional amendment which gives the Supreme Court power of judicial review, i.e.: the power to strike down laws as un-Constitutional; and at the same time the amendment should give Congress 2/3 override power over all Supreme Court decisions just as Congress has 2/3 override power over Presidential vetoes.

    “You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power are the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves….When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves….” Thomas Jefferson


  14. Ron

    October 12th, 2009 at 22:09

    “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert the Constitution.” Abraham Lincoln

    We need the ability to overthrow Supreme Court decisions which pervert the Constitution – 2/3 override power for Congress!


  15. Andrew

    October 14th, 2009 at 22:15

    Let it be known that most of the founding fathers were Dieist. They believed in an unassociated power. The Bible had no function in the formation of the Constitution. I will say that it is a beautiful painting but the portrayal of Liberals, Democrats, Moderates and any person who anti-conservative is appalling. And as for “The Liberal Reporter” FOX brags that it has the most viewers in the country. FOX is constantly spewing anti-moderate, and anti-democratic rhetoric.




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