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.


A diminished, petty President

January 28, 2010

I was out last night and so missed President Obama’s State of the Union address. Thus, it wasn’t until late last night that I learned to my shock that he had directly criticized the Supreme Court over its decision in Citizens United (PDF) in front of a joint session of Congress (and the entire nation), with the Justices present. This is what Obama said:

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.  (Applause.)  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  (Applause.)  They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

The Justices sat stony-faced while the Democrats stood to cheer, other than for Justice Alito, who shook his head and said “not true:”

It was an unprecedented humiliation for the Court to be called out like that in such a venue, a fit of pique beneath the dignity of a Chief of State. It was also, in my opinion, an indirect but substantial attack on the First Amendment, the provisions of which the Court had reaffirmed and defended in Citizens United. But, anyone who’s been paying attention knows Obama has a problem with free speech.

And the hypocrisy was breathtaking. The Obama campaign had accepted tens of thousands of dollars  in foreign and otherwise illegal campaign donations during the last presidential election cycle. To complain that the Supreme Court had now opened the doors to “foreign entities” should have provoked derisive laughter, not applause.

I was going to write a long rant about how dumb the President’s statement was, but William Jacobson at Legal Insurrection covers the ground much better than I:

The attack on the Supreme Court during the State of the Union was a window into Obama’s divisive soul. I have posted numerous times before about Obama’s need to identify and campaign against enemies. He did it during the campaign and he does it every day in office.

Last night it was (mostly) the bankers and Wall Street (which donated more money to his campaign than to Republicans) and the Senate Republicans who were his target. But it those were the only attacks, it would have been merely another typical political speech.

The attack on the Supreme Court exposes the intolerance of this President. The politician who campaigned and allegedly champions the rule of law actually has very little use for the rule of law when it does not advance his political agenda.

Read the whole thing and follow the links. It will be well-worth your time.

Is it 2012, yet?  Sigh

RELATED: Alito’s “Not True” Moment at Reason; Fausta, who provides quotes about why Obama was wrong and demagogic; neo-neocon; and Hot Air. Obi’s Sister calls the whole speech a FAIL.

UPDATE: The quote that summarizes it all:

This is either blithering ignorance of the law or demagoguery of the worst kind.

How about both?