So, is the Obama Administration admitting ObamaCare/ObamaTax is unconstitutional?

July 5, 2012

Via the Washington Examiner’s Byron York:

In an interview on CNN Thursday morning, Obama campaign spokesman Ben LaBolt said that President Obama disagrees with the Supreme Court’s ruling that the individual mandate in Obamacare is a tax.

Anchor Soledad O’Brien asked LaBolt: “His spokesman…said it’s a penalty. The Supreme Court has said it’s a tax. What does he believe?”

“That it’s a penalty,” LaBolt answered.  “You saw our arguments before the Supreme Court…”

“So then he disagrees with the Supreme Court decision that says it’s now a tax?” O’Brien asked.

“That’s right,” said LaBolt.  “He said that it’s a penalty.  You saw our arguments before the Court.”

So, since the dissent ruled that what walked like a duck was a duck and that a penalty that penalized was really a penalty and never a tax, and therefore the bill was unconstitutional, does this mean that the president’s team and, by extension, the president, himself, all agree with Justices Scalia, Alito, Kennedy, and Thomas?

In once sense, it doesn’t matter, because the Court has spoken (“The duck that walks like a duck can be considered a goose for constitutional purposes.”)  and we now must settle the matter politically. Okay, fine.

On the other hand, it’s going to be a lot of fun from now until November poking Obamabots with the the sharp stick labeled “It’s a TAX!!” and watching them squirm as they try to avoid it.

Hey, it’s going to be a long, hard campaign; we need some comic relief, after all.

(Crossposted at Sister Toldjah)


(video) #ObamaCare and the Roberts ruling: a needed pep-talk

July 2, 2012

Discouraging, wasn’t it? Last week, when the Supreme Court’s exercise in pretzel logic ruling in Sebelius came out and shocked everyone (pro or anti-ObamaCare), my blog-buddy ST took to calling me an optimist, because I was telling anyone who would listen that the fight wasn’t over, that we could still win, that the fight had only just started.

And yet it’s hard not to be discouraged in the face of a Congress that rams a horrible bill down our throats via anti-constitutional means, and then has it saved by a Justice –supposedly one of ours– who rewrites the statute in order to save it, effectively telling the rest of us that our opinions on what is constitutional — what is plainly right– don’t matter.

So, late at night, empty martini glass in hand, even I felt the pangs of despair.

Enter Coach Whittle, who isn’t having any of it:

Let’s turn 2012 into such a landslide, the Democrats look back on the Great Shellacking of 2010 as a golden age.

Game on.

(Crossposted at Sister Toldjah)


#ObamaCare — Sources: the Chief Justice changed his mind

July 1, 2012

There had been speculation in the wake of last week’s surprising Supreme Court ruling in Sebelius (the ObamaCare case) that the joint, scathing dissent had originally been the majority opinion, but that Chief Justice Roberts then changed his mind and upheld the statute by effectively rewriting it as a tax.

Now, apparently, we have some confirmation. At CBS News, Jan Crawford learns from two anonymous sources how the debates in chambers went down. Here’s a key section:

On this point – Congress’ commerce power – Roberts agreed. In the Court’s private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate.

Roberts was less clear on whether that also meant the rest of the law must fall, the source said. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down.

Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the Court’s historic decision. He kept it for himself.

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it. 

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

Then began a long process in which the conservative justices –especially Kennedy, who saw this as a liberty and federalism issue– tried to bring Roberts back to their side. It didn’t work, so, when the Chief Justice filed his opinion on June 1st, the four dissenters wrote their opinion jointly and, in an unusual move, didn’t join Roberts in concurring with those parst of his decision, relating to the Commerce and Necessary and Proper clauses, with which they agreed. Instead, their dissent was wholly separate and did not mention Roberts’ opinion at all, indicating they wanted no part of it and, perhaps, contempt for what he had done.

Read the whole thing; it’s fascinating. Also have a look at this related piece by Avik Roy.

If it’s true that Roberts responded to pressure from the liberal media, then that indicates a sad lack of spine on his part, but not something unheard of among conservative justices in DC. When a conservative moves toward the liberal end of the scale, it’s called “growing in office” and they’re praised for it. (Never when a justice goes the other way, though.) And it’s happened a few times. Perhaps they’re afraid of being cut off from the best cocktail parties.

In fairness, though, Crawford cites other sources who deny social or political pressure influenced Roberts’ thinking:

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on – nothing in prior Supreme Court cases – to say the individual mandate crossed a constitutional line.

If Roberts was afraid to strike down the mandate because of a lack of precedent, then he’s dead wrong. I refer the reader to United States v. Butler and Schechter Poultry, both of which struck down crucial pillars of the New Deal. In the latter case, Schechter undid the National Industrial Recovery Act, which was at least as sweeping a power grab as ObamaCare. While neither dealt with a mandate, they still provide precedents for striking down major legislation.

And on general constitutional grounds, our national charter specifically envisions a government of defined, limited, and divided powers, with those not assigned to the federal government being reserved to the states and the people. On that alone, the mandate was such a violation of original intent and such an intrusion into those areas left to the states and the people that there was no reason not to overturn it.

What should have happened? Roberts should have stuck with his original opinion, joined the majority in overturning the whole law, and then sent it back to Congress with a note saying “If you want to do this, it has to be as a tax.”

It was the only way to properly handle this case.

If the thrust of this and other articles is true, that Roberts was concerned about the Court overreaching and thereby damaging its reputation, then he achieved the opposite. This display of weakness that lead him to abuse the “fairly possible” doctrine of jurisprudence and to then legislate from the bench to rewrite the mandate as a tax damages the Court’s reputation, as well as that of the Chief Justice, himself.

EDIT: Rewrote the final paragraph a bit to be more clear.

UPDATE: Both Moe Lane and Jazz Shaw caution against putting too much stock into anonymous sources, particularly when the story seems to be aimed at demoralizing conservatives. It’s a good thing to keep in mind.

(Crossposted at Sister Toldjah)


#ObamaCare : The fight has only just started

June 28, 2012

Leviathan upheld

Okay, fine. The Supreme Court has ruled (1) ObamaCare to be constitutional, even if it had to do so in a bizarre manner by declaring the mandate a tax and thus within Congress’ taxation powers, even though the government never made that argument and President Obama swore up and down it wasn’t a tax. So be it.

But this fight isn’t over; it’s only just started.

The fight over ObamaCare has never been just about what’s allowed under the Constitution or some spurious notion of a “right” to health care. At the core is a conflict of visions over the nature of government and the relation of citizens to that government: Is it a federal government of limited, specific powers and a freeborn citizenry with inherent rights that cannot be revoked, or is it a paternalistic State of unlimited power, with citizens reduced to wards?

In the end, ObamaCare is a political question of the purest, most basic kind: What is the nature of our polity?

And that is why the fight has only just begun. The Court has thrown this back into the political arena, and there is an election coming. It is now imperative that we not only hold the House, but win the Senate with a good majority and win the presidency. It is up to us to make sure the Republicans win, that conservatives form as large a bloc as possible, and that we then hold their and President Romney’s feet to the fire.

Nothing but full repeal will suffice. Nothing.

If there are demonstrations against ObamaCare — be there. Make the demonstrations of 2010 look tiny by comparison. Let your congresscritters know in no uncertain terms you demand repeal. The vast majority of the public hates ObamaCare; make sure the public’s agents in Washington know that. This is a political battle, but we cannot win if we are not engaged.

And I am convinced we can win. I refuse to believe otherwise.

I’ll close with a statement from Senator Rand Paul, who sums up what I believe quite nicely:

“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional. While the court may have erroneously come to the conclusion that the law is allowable, it certainly does nothing to make this mandate or government takeover of our health care right,” Sen. Paul said.

“Obamacare is wrong for Americans. It will destroy our health care system. This now means we fight every hour, every day until November to elect a new President and a new Senate to repeal Obamacare,” he continued. 

Paul is right. The court makes errors all the time. (2) It is now up to us to fix this one.

I’m giving all you reading this just this one day to wail, rage, and gnash your teeth. Go ahead, get it out of your system. Curse the Court, curse the government, and cry out to the heavens, themselves.

Then, tomorrow, buck up, square up, and put on a steely gaze.

Because tomorrow the fight begins anew.

PS: Romney 2012

PPS: May I suggest it’s time for the Bill of Federalism?

RELATED: J. Christian Adams on The Good, the Bad, and the Ugly in today’s decision. Erick Erickson on why he’s not down on John Roberts. Jay Cost — “What did the SCOTUS just do?

Footnotes:
(1) Something I never expected — Roberts siding with the majority, and the “Great Squish” Kennedy becoming my hero for declaring the whole act unconstitutional. What a strange world.
(2) Dred Scott. Plessy v Ferguson. The Slaughterhouse Cases. Buck v Bell. Korematsu. Wickard v Filburn. Roe v Wade. Kelo. And those are just off the top of my head. The Supreme Court regularly makes bad decisions; there is nothing sacred or infallible about their rulings. They are not set in stone for all time.

(Crossposted at Sister Toldjah)


How to undo ObamaCare? A problem of philosophy

April 2, 2012

There’s an interesting article at The Weekly Standard, by Jeffrey Anderson, looking at the difficulties the Supreme Court faces as it decides what to do about ObamaCare. As Anderson describes it, there are five choices:

  1. Upholding the law in its entirety;
  2. Minimally overturning it by striking down just the individual mandate;
  3. Go a little further by overturning the mandate, plus the closely related “community rating” and “guaranteed issue” clauses;
  4. Go through the law page by page deciding which part survives and which is overturned;
  5. Voiding the whole law.

Obviously the first is unacceptable to anyone who cares a whit about the Constitution and the principles on which it was founded. It’s also, thankfully, the least likely result if the questions asked by the Justices during the three days of the hearings are any indication.

But options 2-5 pose problems for conservative justice inclined to overturn the mandate: When dealing with a law this huge in both size and scope, which approach best hews to the principles of judicial restraint/judicial modesty, while still adhering to the Constitution? Options 2-4 pose a couple of problems. The first is that, by picking and choosing among the various parts of the bill, the Court may well leave behind a clanking wreck that does even more harm. The other is that, in doing so, especially in the absence of a severability clause (1), the COurt would wind up acting like an unelected super-legislature and usurping the roll of the elected Congress, something that should give any constitutionalist serious pause. As Anderson points out, none of these choices (except the first) are clear-cut and without question.

My own preference to to void the whole bill; it cannot work without the individual mandate, which itself is clearly unconstitutional. And policy decisions about health-care reform, which is what choices 2-4 amount to, are the duty of the elected legislature, not the Court.

But even these arguments raise a deeper issue; the Court would not find itself confronting these issues if not for the progressive penchant for comprehensive legislation, one bill “to bind them all.” Anderson sums it up neatly:

But we shouldn’t miss the larger point here. The predicament in which the Court finds itself is plainly a product of President Obama and his party’s preference for massive, unwieldy, impossibly complicated legislation—the kind that you have to pass first to “find out what is in it.” Such legislation, as the oral arguments revealed, does not fit within our system of limited government. That’s because, as Charles Kesler has observed, Obamacare violates the basic notion of law in a free society. Kesler writes, “Sometimes the most obvious derangements of our politics are staring us in the face but we don’t see them”—like “calling this voluminous monstrosity a bill. Can you have a bill, a single law, that is almost 3,000 pages long? In the old days, that would have constituted a whole code of laws.”

In other words, it’s not just Obamacare that must go, but rather the whole liberal and progressive notion of “comprehensive” legislation for a nation of 300 million people. Obamacare is the epitome of that confidence in central planning by experts. Whether the Court strikes down Obamacare, or President Obama is defeated and Obamacare is repealed, or the Court strikes down part of Obamacare and a new president and Congress repeal the rest, last week’s historic hearings have made one thing clearer than ever: Attempts at “comprehensive” legislation compromise the very notion of limited government, in which the people’s representatives try to accomplish attainable goals in a free society. Comprehensive legislation is what happens when you have unlimited government. It is that effort, and the attitude underlying it, that need to be repudiated—by the Court and, more important, by the voters this November.

(Emphasis added.)

And that points a way forward for conservatives in the coming months: not only concentrating on sending Obama off into retirement , but electing as many limited-government conservatives as possible to Congress who understand a principle related to judicial modesty, but rarely mentioned — legislative modesty. (2) That is, recognizing what the federal government’s proper role is and doing only enough to fulfill that role, not trying to solve every problem (3) that comes down the pike when they’re better left to the states or the people.

Right now, we’re seeing what havoc  legislative arrogance can wreak. It’s time to put a stop to it before the harm is incurable. As Marco Rubio said, “If we don’t win this election in November — and we get four more years of Barack Obama — I don’t know what that means … But I know it ain’t good.”

He was speaking of Obama, of course, but it applies as much to the progressive influence on Congress.

Footnotes:
(1) Severability is a clause Congress usually inserts to allow the courts to strike down provisions of a law without having to kill the whole thing. There was such a clause in an early draft of the bill, but it was removed, indicating the Democrats were betting the Court wouldn’t strike down the whole law because there was no severability. I’m beginning to think they’ll regret that.
(2) Hence Operation Counterwight.
(3) Or any not-problem, something that isn’t their business, but lets them pander to the voters. Such as the BCS.

(Crossposted at Sister Toldjah)


Quote of the evening, Hope and Change Edition

March 31, 2012

From Abe Greenwald:

There are all sorts of ways to have a bad political week, and most don’t involve secretly colluding with the Kremlin and watching your signature policy initiative deliquesce at the Supreme Court.

“Deliquesce.” Abe’s obviously a H.P. Lovecraft fan. We approve.


Far be it from me to question Justice Breyer’s competence

March 29, 2012

But I get the impression he doesn’t do his research:

I was listening to the tape-delayed Obamacare oral arguments in the car Tuesday when I first heard Justice Breyer’s Commerce Clause diatribe, and I meant to post something when I got home. But after making dinner and putting the kids to bed, I forgot.

Until today, that is, when I read Jeffrey Anderson’s account of “Breyer’s Missteps.” I think Jeffrey is far too generous to Breyer. Here is a fuller transcript of Breyer’s outburst…

(…)

Breyer alludes to four Supreme Court cases. And he manages to botch the key facts of the case in every single one of them. Let’s start at the top:

“That’s the national bank, which was created out of nothing to create other commerce out of nothing.”

This is a reference to McCulloch v. Maryland, in which the Court upheld Congress’ ability to create the Second Bank of the United States. But, as Paul Clement pointed out in oral argument, Chief Justice John Marshall found that Congress’ power to create the bank came from the Necessary and Proper Clause, not the Commerce Clause as Breyer suggests. Furthermore, Congress did not compel individuals to deposit money in the bank, only that Congress could create it in order to better manage its financial affairs.

Be sure to read the rest. If that’s the quality of argument coming from the progressive side of the bench, the ObamaCare law is not long for this world.


Could 1st-year contract law derail ObamaCare?

February 29, 2012

Oh, this is interesting, to say the least. The Institute for Justice has filed an amicus curiae brief (PDF) in the ObamaCare case soon to be heard by the Supreme Court. The crux of their argument is that the mandate compels the individual to agree to a contract, but, under centuries old (1) precedents and principles of contract law, all contracts must be voluntary and no contract made under compulsion is binding.

Here’s video of the IJ’s Elizabeth Foley, a constitutional law professor (2), explaining the issues at hand:

And here’s the crux of their argument:

As IJ’s brief shows, the principle of mutual assent, under which both parties must consent for a contract to be valid, is a fundamental principle of contract law that was well understood during the Founding era and is still a cornerstone of contract law today. Indeed, contracts entered under duress have long been held to be invalid. Yet the mandate forces individuals to enter into contracts of insurance that would never be valid under this longstanding principle.

If the U.S. Supreme Court fails to strike down the individual mandate, there will be nothing to stop Congress from forcing people into other contracts against their will—employment contracts or union membership, for example. If we still have a constitutional republic in which the federal government’s powers are limited, then the Court should strike down this law.

I have to say, this looks like a solid line of attack, albeit I’m not a lawyer. But, if it’s true this attacks a fundamental, longstanding, hoary  principle of law, this may be what it takes to push Kennedy and one other moderate-to-liberal justice to strike down the mandate.

Any legal eagles in the audience care to read the brief and comment?

via Hot Air, where Ed has some good commentary.

Footnotes:
(1) Seriously. Not only does it cite cases from the early Republic, but even from English case law of the 17th century. Made my History-geek heart flutter with delight, it did. 
(2) A real one, unlike the current president.

UPDATE: Fixed the broken link to the amicus brief, thanks to Conservative Woman in the comments.

(Crossposted at Sister Toldjah)


More “wisdom” from Justice Ginsburg

February 6, 2012

Last Saturday I wrote about my… “disappointment” at Justice Ginsburg’s dismissive attitude toward using the US Constitution as a model for others. Thanks to a link from Jim Vicevich, I was reminded of one of Madame Justice’s earlier moments of glory, from 2009: her inability to understand why anyone would have a problem with an American judge using foreign law to shape US judicial decisions:

I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

(…)

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”

American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”

(Emphasis added)

I’m a helpful, caring sort of guy and I have a great deal of sympathy for confused little old ladies, so let’s see if we can help Justice Ginsburg out, shall we?

First, I suggest she reread the article, with special emphasis on the quote from her colleague, Chief Justice Roberts:

“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”

And there’s the key: democratic accountability. While we rightly shield federal judges from base politics and the need to run for office, we can still say with reason that they are accountable to the people because we elect those who appoint and confirm the judges. And, in the worst cases, they can be removed by the people’s representatives.

More directly, US judges rule on laws passed by American legislators who are democratically accountable to the American people, and the US judge operates under rules established by precedent (common law) and legislation (statute and constitutional amendments). He is the heir to an evolving legal and political tradition stretching back over 1,000 years to the origins of trial-by-jury and the field of Runnymede, and coming forward through the development of elected parliaments, separation of powers, and judicial review to form a system that works because it has the legitimacy of the people.

None of that applies to the hypothetical German judge, who works within his own context and whose rulings carry none of that legitimacy here.

I would suggest to Madame Justice that, regardless of what law reviews she chooses to read (and I applaud her desire to broaden her horizons), it is not at all unreasonable or incomprehensible that she or any American judge should be expected to confine her judicial rulings to the law derived from that rich Anglo-American heritage and enacted with democratic legitimacy under the US Constitution.

If she wants to refer to the writings of Edward Coke, great! But a ruling of the French Constitutional Council? Non!

PS:  A “passing phase?” Why does this sound like Justice Ginsburg is telling the rest of us (and her colleagues?) to “grow up?” Oh, wait. That’s because that’s exactly what she is doing, because that’s what progressives do: condescend. We’re just not enlightened enough and too busy clinging bitterly to our old, outdated Constitution to understand progressive, sophisticated jurisprudence.

PPS: And why should a US Justice care how often her court is cited relative to others? What matters is the Court’s legal influence within the United States, not being a finalist in some international judicial beauty contest.

PPPS: Though she did raise an interesting question. I wonder how often foreign law was cited in the Early Republic?

(Crossposted at Sister Toldjah)


Justice Ginsburg: “Don’t use the US Constitution as a model”

February 4, 2012

Old and outdated?

Pardon me, but …ahem… WTF??

Ruth Bader-Ginsburg, an Associate Justice of the Supreme Court of the United States, on which she sits to rule on constitutional matters, gave an interview to Al Hayat TV on the revolutions overtaking the Arab world and the prospects for democracy. (Video here.) She starts off fine:

Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the constitution – first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor.

Can’t argue one bit with any of that. If there’s one thing fundamental to genuine democratic rule (and one reason why Sharia-based societies can never be truly democratic), it’s the guarantee of freedom of speech.

But then she runs off the rails and into WTF-land:

You should certainly be aided by all the constitution-writing that has gone one since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary… It really is, I think, a great piece of work that was done. Much more recent than the US constitution – Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world?

“But, for God’s sake, don’t use only the most successful governing document in Earth’s history. It’s so… old!”

I wonder if she and Ezra Klein are related?

Now, to be fair, there is a “this wasn’t a stupid thing for a SCOTUS Justice to say at all” argument. It runs something like this:

The Constitution of the United States arose under conditions unique to the time and place in which it was written, and to the people who wrote it. The traditions of British Common Law and Whiggery with its limitations on the power of government and protection for the  rights of the individual; the Classical examples of Greek democracy and the Roman Republic, which the Founders knew by heart; the Judeo-Christian traditions that separated government from God; and the Enlightenment, which applied reason to government. Thus all Justice Ginsburg is saying is that this mix was unique to 18th century America, and that the new Arab governments should look to examples reflecting more current conditions.

But I don’t buy it.

When she refers to a “charter of rights,” I have to wonder if she’s ever heard of this little thing called the Bill of Rights. It secures the political rights of the people (free speech, free assembly, the right to a jury trial and habeas corpus) and their rights to their own property. (1) Beyond that, it leaves the people to take care of themselves as free citizens.

In that lies the problem, I suspect, for Justice Ginsburg: the Constitution and the Bill of Rights are negative charters. They grant limited powers to the general government and largely circumscribe what it may do, restricting it to those things necessary to the general welfare.

All else is left to the people and the states.

And I suspect that bugs the heck out of progressive liberals, such as Justice Ginsburg. They want government to do more for the people, because the world is too complex and just too difficult for people to take care of themselves:

This isn’t a new phenomenon by any means. It’s old, going back to the roots of American progressivism in the 19th century, what we now call, incorrectly, “liberalism.” It’s fundamental thesis is that the modern world is too complex for a governing system designed in the 18th century for a rural, isolated republic; that legislatures were too fractious and trapped by partisan interest to do what was best; and that these complexities were best handed off to boards of experts and technocrats who could make the correct decisions with scientific dispassion — Orszag’s “depoliticized commissions.” Woodrow Wilson crystallized this contempt for democratic governance when, before becoming president, he argued in essence that the Constitution was obsolete. (See also Goldberg’s excellent “Liberal Fascism.”)

Politically, it’s represented in modern times by FDR’s “Second Bill of Rights” and its modern promoter, Cass Sunstein, as well as the idea of the “Living Constitution” — a document that “evolves” with changing times and needs. Justice Ginsburg would be its judicial exemplar.

Take a look at a portion of one of the documents she praises, the South African Bill of Rights. It speaks not only of political and property rights, but health care, housing, the environment, and linguistic and community rights. That is, welfare state-style economic and social rights, far beyond what we understand as “unalienable rights.” I suspect that she would love to see the courts in the US step in to provide those economic and social rights when the legislatures fail to do so, acting themselves as a sort-of legislature.

But, to get back to Justice Ginsburg’s assertion that the US Constitution is not a good model for new Arab governments, I’d say quite the opposite. The danger in societies under Sharia is repression and the loss of individual rights, especially if one is a woman or a non-Muslim — or both. Sharia is totalitarian, governing every aspect of daily life, and its adherents are a threat to the liberties of others wherever they gain control of government.

And even if not Sharia-based, Arab governments have shown themselves far too willing interfere in their economies in the name of “fairness” (and to keep control for themselves), with results that have ranged from mediocrity to outright wreckage.

Hence what is needed and what new Arab governments should look to, if they want to guarantee liberty and prosperity, are precisely those governing philosophies and documents that limit the power and reach of government.

Gee, something like the United States Constitution and Bill of Rights. (2)

It’s a shame that a Justice of the United States Supreme Court doesn’t understand that.

via David Freddoso, Phillip A. Klein, and Weasel Zippers

RELATED: Justice Ginsburg, eugenicist?

LINKS: More at The American Spectator and Hot Air.

Footnotes:
(1) Yeah, I know these have been eroded to one degree or another, here, especially after Kelo. Bear with me.
(2) No slight meant to South African or Canadian readers, though Canada is a bit dodgy from a US point-of-view on free speech.

(Crossposted at Sister Toldjah)


Justice Kagan may have lied at her confirmation hearings

December 9, 2011

And she should recuse herself from any ObamaCare hearings before the Supreme Court, because of it:

Internal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

In another internal DOJ email communication that same week, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.

Then, during Kagan’s Supreme Court confirmation process four months later, Republicans on the Senate Judiciary Committee asked her in writing if she had “ever been asked about your opinion” or “offered any view or comments” on the “the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148 [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Kagan answered both questions: “No.” (PDF. See questions 8 and 9 in particular. –PF)

Well. I’d say that’s pretty straightforward, wouldn’t you?

Personally, I’d guess she was lying at her confirmation hearings. That’s grounds for impeachment in my book, but that’s politically out of the question. However, far from being “walled off,”  it is clear that she was involved in at least some aspects in a substantive manner and that her objectivity can be called into question. I cannot imagine for a minute that the Solicitor General of the United States would not have offered an opinion or advice on strategy in a case that threatened the overriding goal of the administration in which she served. As the article points out, per statute, justices are required to recuse themselves in such cases.

Read the whole piece. At the very least, I think the revealed emails raise serious questions about Justice Kagan’s ability to impartially rule on ObamaCare.

via Legal Insurrection

(Crossposted at Sister Toldjah)


Bill Whittle: “How to steal power” or “Turning the Constitution upside-down”

October 31, 2011

Bill’s back with another episode of Afterburner, this time taking a look at how progressives (including Supreme Court justices) have regularly twisted (and even tortured) the plain meaning of the Constitution to get what they want, rather than what the document allows. Bill focuses on two much-abused clauses in Article I, section 8, “General Welfare” and “Commerce,” to show that, interpreted in the progressive manner, as part of a “Living Constitution,” (1) these clauses stop being limits on government’s power and instead become grants of unlimited power.

My own view is that of originalism, that the document has to be read as the Convention and the ratifying states intended. Where the language is plain, as in…

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

…then the argument ends. In more ambiguous sections (often due to 18th century grammar and style), we can use our reason (2) and examine primary sources of the time, such as the Federalist and Anti-Federalist Papers, the records of the Constitutional Convention, and the contemporaneous state constitutions to figure out what was intended.

And where the powers delegated to the federal government under the Constitution are inadequate to meet a truly national or multi-state issue, there’s this little thing called Article V that provides a means to rewrite the rules in a manner best-suited to creating consensus — unlike diktats from imperialist judges divining the current meaning of the living constitution from its penumbras and emanations.

Any other way is just stealing power.

Footnote:
(1) Just to be fair to the other side, Strauss’ recent book, The Living Constitution, has been receiving good reviews. It never hurts to know the other guys’ arguments.
(2) Contra Ezra Klein, it’s not hard.

(Crossposted at Sister Toldjah)


White House tells Supreme Court what cases it should take?

March 15, 2011

I guess we shouldn’t be surprised; this is, after all, the same administration whose leader famously dressed down the Court live on national television during his State of the Union speech. No wonder his flunkies feel free to tell the court what cases it may take and when:

The Obama administration told the Supreme Court on Monday night it should stay away from a high-profile challenge to the 2010 health care law until after a lower court has had a chance to review the case.

Acting Solicitor General Neal Katyal wrote, “there is no basis for short-circuiting the normal course of appellate review.” Katyal also says Virginia Attorney General Ken Cuccinelli’s case is problematic because he may lack sufficient standing to challenge the health care law.

The Supreme Court normally takes cases only after they’ve been reviewed at least once by appellate judges. Virginia Attorney General Ken Cuccinelli says that’s not appropriate in this instance.

In his filing last month, Cuccinelli said there’s a “palpable consensus” that the high court will ultimately have to pass judgment on the merits of President Obama’s health care law and should do so without delay. Furthermore, Cuccinelli argues that his case involves “pure issues of constitutional law” that appellate judges on the Fourth Circuit U.S. Court of Appeals will be unable to definitively resolve.

Maybe I’m just a stuffy old conservative, but it seems to me that the Court itself is competent to decide what cases it will take in which order, and when procedure will be followed and when it will be deviated from. Last I checked, it is a co-equal branch of the government and doesn’t need advice from another branch about how to handle its own affairs.

The subtext of this seems to me to be that Katyal and his bosses are worried that the initiative is against them since Judge Vinson’s devastating ruling against ObamaCare last April, even though that’s separate from Virginia’s case. Judge Vinson’s reasoning will surely be used in any number of amicus briefs filed when (not if) Virginia’s case goes to the SCOTUS, so perhaps the administration is hoping appellate review of Cuccinelli’s suit will give them some ammunition for later. Or maybe they’re playing a delaying game, hoping that, the longer ObamaCare is in force, the less likely the courts will be to overturn it.

To be honest, I’m not sure why they need to act arrogantly toward the court in this instance; it’s not as if they’ve shown any inclination to obey court orders so far.

via Doug Powers

UPDATE: I’ve been told by several lawyers on Twitter that this is a fairly standard filing, so, objection withdrawn. But the snark about obeying court orders stands.

(Crossposted at Sister Toldjah)


Abusing the Constitution: health care and the case of the Commerce Clause

August 26, 2010

While we rightly agree to abide by the decisions of the Supreme Court as the final arbiter of what is and isn’t constitutional (barring changes via amendment), that doesn’t mean all its decisions are correct, or that its errors are without consequence. Among the more famous errors of the Court, consider Dred Scott v Sandford, which upheld fugitive slave laws; Plessy v Ferguson, which upheld segregation in state law; Buck v Bell, which upheld state laws mandating forced sterilizations; Korematsu v United States, which permitted the forced internment of Japanese-Americans during WWII; and the recent Kelo v City of New London, which made a mockery of the 5th Amendment’s takings clause.

So, it should come as no surprise that another bad Court decision, Wickard v Filburn, is at the heart of the Federal government’s vast expansion of its power via an upside-down interpretation of the Commerce Clause. In the following short video essay, Reason.TV looks at the Commerce Clause, the expansion of federal power its abuse enabled, and frames it via interviews with two legal scholars: Erwin Chereminsky, Dean of the UC Irvine Law School and an advocate of the “living Constitution,” and John Eastman, Professor of Law at Chapman University and a constitutional originalist. I think you’ll find it worth the ten minutes:

I think for anyone who understands that the Constitution is a document intended to limit the Federal government’s powers, Chereminsky’s arguments are almost frightening. (Side note: Professor Eastman ran for the Republican nomination for state attorney general in the last election; I voted for him and I’m sorry he didn’t win.)

This debate isn’t just academic, as the video points out: rather, it is of immediate urgency as  Congressional Democrats and the Obama Administration try to justify their statist health care plan and its individual mandate under the Commerce Clause. It also shows why Wickard, the foundation of Congress’ metamorphosis into Leviathan, needs overturning, whether through the Court in upcoming cases, or via a constitutional amendment that refines the meaning of the Commerce Clause.

If limited government is to have any meaning at all, this hole the Left has exploited must be plugged.

LINKS: More from Hot Air. Justice Scalia criticizes the theory of the living Constitution.

(Crossposted at Sister Toldjah)


This just in: Harry Reid is an idiot

May 12, 2010

Via David Freddoso, we read in wonder as the Majority Leader of the United States Senate has an out-of-reality experience of almost Biden-esque proportions:

In a recent Senate floor speech, Democratic Leader Harry Reid likened Supreme Court nominee Elena Kagan to another woman who sat on the court, Sandra Day O’Connor.

“One of my favorite Supreme Court Justices in recent years has been Sandra Day O’Connor, not because she’s a Republican, but because she was a good judge. I think one reason she was a good judge is she had no judicial experience,” Reid said on May 11, 2010.

Um, not quite, Pinky. From the same article:

In 1975, O’Connor was elected a judge of the Maricopa County Superior Court, where she served until 1979, when she was appointed to the Arizona Court of Appeals, according to her biography on the U.S. Supreme Court Web site. In 1981, President Ronald Reagan nominated O’Connor to be an associate justice of the Supreme Court.

Want to try again, Harry?

Dear Nevada, do the nation a favor and elect this woman.


Iowahawk for Supreme Court

April 12, 2010

A campaign video for a SCOTUS seat? Why the heck not?

Forget Kagan or Liu. Forget Sunstein or Tribe or Clinton or the rest of those radicals. Iowahawk is the only one for the job who’s truly rad.


Court packing: Don’t go there, Mr. President

March 1, 2010

Yet more proof that Progressives are anti-democratic. First, they whined about the filibuster; when they couldn’t get their own way, in spite of having overwhelming majorities in both houses for over a year and owning the presidency, it had to be because archaic rules thwarted them, not because the people were rejecting their statism and forcing moderate members of their own party to back away from ObamaCare.

Now it’s the court system. With the only seats on the Supreme Court likely to open up before 2012 being liberal seats and with a 5-4 Center-Right majority in place, it’s occurred to some that, if ObamaCare passes, the Court could undo major portions of it. For Progressives, who know better than anyone else in the nation (in their own minds) how citizens should manage their lives, this is unacceptable. Therefore, the only solution is, according to Stan Isaacs,  to stack the deck:

This may come as a surprise to some people, but the U.S. Constitution does not specify the size of the Supreme Court.

The original Judiciary Act of 1789 set the number of justices at six. It shrank to five in 1801. It expanded to seven in 1807. It grew to nine in 1837 and 10 in 1863. It fell back to seven in 1866. It returned to nine in 1869 and has remained at that number since.

Political issues accounted for the changes. The Federalists reduced the number to five, hoping to deprive Thomas Jefferson of an appointment. The incoming Democrats repealed that measure, raising the number to seven. It went to nine in 1837 to give Andrew Jackson two more seats. Civil War issues led to more fluctuations before the court settled at nine under President Ulysses Grant.

So if nine justices is not writ in stone, the embattled President Obama should deal with this hostile conservative/reactionary court by adding three members.

Oh, I dare you Stan. Go for it. Just try it. How’d it work for FDR, anyway? Average citizens may not remember his court-packing scheme, but they can smell a rat, nevertheless. They’ll see that jamming the Court with new, Progressive justices is nothing more than an attempt to impose by judicial fiat what the Left cannot get through the legislature. There’s a word for using unelected judges to impose one party’s policy, Stannie:

Dictatorship.

Mr. President, ignore the advice of anti-democrats like Stan Isaacs. Your term in office has nearly hit the rocks because of your single-minded attempts to impose statist health-care reforms the majority of the nation soundly rejects. Sir, I guarantee you: if you even hint at going for court-packing, Election Day next November will not just be a bad day for the Democratic Party. Trust me, the people’s anti-authoritarian antibodies will kick into overdrive.

It will be an absolute catastrophe.

LINKS: Allahpundit laughs at the idea and tries to figure out who in the Senate would vote for it.

LINKS II: Big Journalism is aghast.


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