So ignorant, it’s scary: the sequel

January 19, 2011

Last summer I wrote a post about the mind-numbing witlessness of Congresswoman Sheila Jackson-Lee (D-TX).  Now, on top of her ignorance of History and Science, she’s shown herself to be devoid of any understanding of the Constitution*, too, by declaring that a repeal of ObamaCare would be unconstitutional:

Arguing that the Commerce Clause provides the constitutional basis for ObamaCare, Jackson Lee said repealing the law by passing Republicans’ H.R. 2 violates both the Fifth Amendment’s right to due process and the Fourteenth Amendment’s equal protection clause.

“The Fifth Amendment speaks specifically to denying someone their life and liberty without due process,” she said in a speech on the House floor moments ago. “That is what H.R. 2 does and I rise in opposition to it. And I rise in opposition because it is important that we preserve lives and we recognize that 40 million-plus are uninsured.

She continued, “Can you tell me what’s more unconstitutional than taking away from the people of America their Fifth Amendment rights, their Fourteenth Amendment rights, and the right to equal protection under the law?”

Jackson Lee mentioned the names of several people who she said would be helped by the national health care law, including a schizophrenic, a dialysis patient, and somebody whose mother cannot otherwise get dental care. “I know they would question why we are taking away their rights,” she said.

Actually, I should think they would more likely question whether she has two firing synapses in her head. And does anyone seriously think she’d even be giving constitutionalism a passing glance, if her party hadn’t been massacred in the last election by voters sickened by the Democrats’ cavalier disregard for the Constitution?

She won’t understand it, but I’ll try.

Dear Sheila,

The US Constitution is a charter of negative liberties. That means –try to keep up, now– it limits what the federal government can do, assigning it specific powers and reserving the rest to the people and the states. It does this to protect the individual liberty of Americans from tyrannical power-grabs by a distant government. (If you had paid attention in History class, you’d recall we fought the Revolution for that very reason.) This is why the First Amendment protects freedom of speech, the Second the individual right to bear arms, and so on.

What the Constitution does not do, regardless of what Franklin Roosevelt and Cass Sunstein say, is mandate that the government give you stuff. It is not required to give you food, clothing, a place to live, a new TV, gas for your car, a pony on your birthday, or insurance coverage. Your twisting of the Fifth Amendment to say that the government must mandate insurance coverage lest someone’s life be taken from them is… bizarre. If that’s the case, then the government should buy everyone a gun, too, since otherwise someone might lose his life and property in a robbery. You know what happens when you rely on the government to give you everything you could want? The citizen becomes an infantilized servant.

And “due process?” I don’t think those words mean what you think they mean. Are you really saying that the government cannot deny someone insurance coverage without a court hearing? Wait. I don’t want to be giving you any ideas…

Sigh. What’s the use? She’s a progressive through and through, dedicated to the proposition that all Men are to be made equal by the government and are endowed by the government with whatever rights the government makes up that week**. And it’s not a coincidence that handing out goodies and calling them “constitutional rights” is a good way to bribe her constituents*** into reelecting her, which they seem quite willing to do.

But it doesn’t change the fact that she’s dumber than a box of rocks.

*Of course, that’s a common problem among Democrats. Some Republicans, too, but it’s pandemic on their side.

**I’d suggest she read the original, but why bother? It’s over 100 years old and probably too confusing for her.

***Can’t wait to see what reapportionment does to her district. Schadenfreude, baby!

(Crossposted at Sister Toldjah)


On judges and “the will of the People”

August 5, 2010

Among the various reactions to Judge’s Vaughn Walker’s decision in Perry v. Schwarzenegger to overturn California’s Proposition 8 and allow same-sex marriage here, I noticed a disturbing theme among commenters at blogs and on Twitter: the idea that the judge had no right to overturn a state constitutional amendment that directly reflected the will of the people.

To which I say, “hogwash.”  Not talking

Don’t get me wrong: I’m a staunch believer in judicial restraint. Judges should interpret the law, not make it. They, as unelected officials, should grant great deference to the elected legislatures, which (the current Congress excepted) represent the people’s will. And this is especially true when the People act directly as a legislature, as in the case of ballot initiatives.

But, conservatives who say the judge had no right to do what he did are missing a very important point: ours is a constitutional republic under the rule of law, not a majoritarian direct democracy. Our constitution was set up, in part, to protect the rights of political minorities from the passions and whims of a majority, to prevent a majoritarian tyranny. Under our system, even the People have to obey the restraints on power put in place by the Constitution. They can change the Constitution if they like, but they are not free to ignore it. If a state were to pass a bill prohibiting Asian immigrants from owning property and forcing them to sell what they did own, a federal court would rightly strike this down* as violating the Bill of Rights even if it were an amendment to the state’s constitution enacted by popular referendum.

To turn back to Judge Walker’s decision in Perry, I make no claims as to whether it was correct. (For interesting criticism, see Ed Whelan and Dale Carpenter) But, if the judge honestly believed Proposition 8 violated homosexuals’ constitutional rights, then he had not only the right to rule as he did, but also a positive duty to do so. To say otherwise is to deny wholesale the principle of judicial review, a cornerstone of our system since 1803.

So, Judge Walker may be wrong on the law and his decision subject to reversal, and he may become a poster child for judicial imperialism, but those are questions separate from whether he has the authority.

Babies. Bathwater. Let’s remember the difference.

*(Sadly, in the real case of California’s Alien Land Law of 1913, the court took way too long to finally overturn it.)


A constitutional perfect storm?

April 6, 2010

At American Thinker, Larrey Anderson takes a cautious view of the chances for success in the suits by state Attorneys General against ObamaCare, especially the individual mandate, because the states have since the Great Depression largely cooperated in the cession of power to Washington. It’s a point well-taken, though I disagree with his example of the interstate highway system; I think that clearly falls under the Commerce Clause.

However, Mr. Anderson does believe that a combination of suits from the states and individuals harmed by ObamaCare might well have a chance. In a rather shotgun approach, he argues for relief based on more than half the Bill of Rights, specifically the 4th, 5th, 6th, 7th, 8th, and 9th amendments. Follow the link above for the full article, but I want to quote his argument regarding the 5th amendment, which quite matches my own thinking. The hypothetical situation is that of a woman who chooses not to get insurance for herself, and then contests the penalty the IRS assesses against her:

The “penalty” is a violation of the young mother’s 5th Amendment rights: “No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” [Emphasis mine.]

Since the IRS will garnish the mother’s wages, there will be no due process for the mother without a protracted legal battle through many strata of bureaucracies. The woman’s money is her private property. It is being taken from her, for public use, without any (let alone “just”) compensation.

I think this is inherently correct, though an attack based on this reasoning would likely meet a lot of resistance, because it could be interpreted as a challenge to the whole of the IRS’ administrative enforcement powers.  However, by combining the the taking of private property without just compensation condition with the lack of due process, an argument can be made limited to the specific abuse of power, not the structure of IRS enforcement in total.

Anderson also makes an interesting and ironic argument related to the 9th amendment, which protects the unenumerated rights of the people.

Finally, the mother could sue under the 9th Amendment. The 9th Amendment is short and sweet:

  • The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


What is interesting about the possibility of a 9th Amendment challenge to ObamaCare is that previous “progressive” decisions issued by the Supreme Court could offer some of the best ammunition for the case that the legislation is unconstitutional.

Anderson cites the precedent of Griswold v. Connecticut, a birth-control case that laid the legal foundation for Roe v. Wade, and which relied heavily on 9th amendment protections. He again makes an interesting argument that the same 9th amendment reasoning applied in Griswold also applies against the Federal government’s claim to the power to enforce an individual mandate. Since Griswold and the cases based on it are darlings of the progressive Left, it would be ironic indeed if the same amendment and constitutional logic were used to undo the Left’s golden-calf legislation.

RELATED: Some earlier thoughts on the matter.


State legislatures revolt against ObamaCare mandates

February 2, 2010

Interesting:

Although President Barack Obama’s push for a health care overhaul has stalled, conservative lawmakers in more than two-thirds of the states are forging ahead with constitutional amendments to ban government health insurance mandates.

The proposals would assert a state-based right for people to pay medical bills from their own pocketbooks and prohibit penalties against those who refuse to carry health insurance.

In many states, the proposals began as a backlash to Democratic health care plans pending in Congress. But instead of backing away after a Massachusetts election gave Senate Republicans the filibuster power to halt the health care legislation, many state lawmakers are ramping up their efforts with new enthusiasm.

The moves reflect the continued political potency of the issue for conservatives, who have used it extensively for fundraising and attracting new supporters. The legal impact of any state measures may be questionable because courts generally have held that federal laws trump those in states.

Lawmakers in 35 states have filed or proposed amendments to their state constitutions or statutes rejecting health insurance mandates, according to the American Legislative Exchange Council, a nonprofit group that promotes limited government that is helping coordinate the efforts. Many of those proposals are targeted for the November ballot, assuring that health care remains a hot topic as hundreds of federal and state lawmakers face re-election.

Legislative committees in Idaho and Virginia endorsed their measures this past week. Supporters held a rally at the Pennsylvania Capitol. And hearings on the proposed constitutional amendments were held in Georgia and Missouri. The Missouri hearing drew overflow crowds the day after Obama urged federal lawmakers during his State of the Union address to keep pressing to pass a health care bill. The Nebraska Legislature plans a hearing on a measure this coming week.

Supporters of the state measures portray them as a way of defending individual rights and state sovereignty, asserting that the federal government has no authority to tell states and their citizens to buy health insurance.

There’s an argument to be made that requiring private citizens to buy a product as a matter of law violates both the Ninth and Tenth Amendments of the Bill of Rights. The Ninth protects “unenumerated rights,” that is, those not specifically mentioned in the Constitution but still derived from natural law, while the Tenth specifies that powers not explicitly granted to the Federal government under the Constitution are retained by the states and the people. The argument over how to interpret these amendments and the proper balance of the roles of the federal and state governments is one of the oldest in American political history, going back to the Constitutional Convention itself.

I’m not an expert, but my guess is that an argument under the Ninth would be that the freedom to decide which products to purchase, if any, falls under the right of the individual to be sovereign over his property, including his money and his own person. Under the Tenth, it could be argued that, since the commerce in health insurance does not cross state borders*, Congress has no power under the Constitution to regulate it, and that state laws barring an individual mandate are therefore valid. Also, since no power to command the purchases of the people was granted, Congress has no authority.

*(I wonder if the Right is opening a can of worms by calling for interstate commerce in health insurance, since then Congress could regulate it under the Commerce Clause…)

I think an argument under the Tenth is probably correct; I have no idea about the Ninth, which, as I understand it, is rarely invoked in US law. Regardless, since I vehemently oppose socialized medicine and, in particular, ObamaCare, I hope these acts by state legislatures withstand constitutional scrutiny.

On the other hand, they do remind me uncomfortably of the Nullification Crisis

RELATED: A very good book on the Bill of Rights, with a chapter on the Ninth amendment.

UPDATE: I should point out that the Virginia Senate, which is dominated by Democrats, is one of the bodies voting to tell the Fed to stuff it.


The Holder Hangover

January 31, 2010

The Holder Justice Department has made several serious mistakes in its handling of jihadi detainees: treating the Detroit Pantybomber as a common criminal with constitutional rights; ordering a trial in Federal court for the plotter of 9-11, Khalid Sheikh Muhammad; and the end of the CIA interrogation program are among several. Power Line’s Scott Johnson looks to the source of these errors and find it not, where many would put it, in the Attorney General’s office, but in President Obama’s misguided view of constitutional rights:

Speaking at a town hall meeting in Pennsylvania during the presidential campaign in June 2008, Barack Obama addressed the Supreme Court’s Boumediene decision granting Guantanamo detainees the right to challenge their confinement through habeas corpus proceedings in federal court. Obama asserted that the “principle of habeas corpus, that a state can’t just hold you for any reason without charging you and without giving you any kind of due process — that’s the essence of who we are.” He explained:

“I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.”

Obama’s comments derive from what I facetiously call “the higher wisdom” that fueled his campaign and that is now operative in his administration. Attorney General Eric Holder perfectly reflects it.

In designating the mastermind of 9/11 and his co-conspirators who are detained in Guantanamo for trial in federal court in Manhattan, cloaking them with the rights of American citizens under the Constitution of the United States, Holder sought to give them their “day in court.” He also sought to “t[each] the entire world about who we are but also the basic principles of rule of law.”

The only appropriate response to Obama’s campaign comments on Boumediene is: “Not true.”

Scott then proceeds to dismantle the President’s use of the Nuremberg hearings as a precedent, exposing the supposed “constitutional scholar’s” ignorance of legal history. From this fundamental error, that war criminals and enemy combatants should be treated as ordinary defendants with the full protection of the Bill of Rights flows every other dumb decision Obama and Holder have made.

Sadly, there are many.

And they will come back to haunt us.

RELATED: Scott links this in his piece, but I wanted to point out here an excellent essay by Thomas Sowell that describes the administration’s decision to try terrorists in criminal court as insanity.


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