Richard Posner: Ignore the Constitution

Tuesday, June 28, AD 2016

15 Responses to Richard Posner: Ignore the Constitution

  • Oh, it’s just about here now. The Supreme Court is a majority of idiots.

  • No, they won’t see it. They think they will lead the revolution like Robespierre. They don’t care that in the end, it killed him too. They are smarter than all of us.

  • And Posner was at one time a highly regarded and disciplined jurist. I wonder when the wheels fell off.

  • Sad, Posner was a guy with so much potential, but for years has been getting more and more “progressive.”

    So now, instead of ignoring the constitution, we’ll just ignore Posner.

  • I have lost all respect for our court system. Period.

  • Pray tell, what should lawyers study?

    In one of Heinlein’s novels (The Cat Who Walked thru Walls?) the hero lives on a habitat called Golden Rule where the only law is the golden rule, thus there are no statutes, no common law, no precedent. We may be heading for the day when the only law is “justice” as defined by SJWs.

  • Whoever defines law in the absence of the Constitution Thomas, I am confident it will not be the SJWs. The special snow flakes have not shown an interest in wielding weapons, and without true law, rather than the whims of those in power, that is where real power always resides.

  • He took an oath when he became a Judge to enforce the Constitution…He needs to resign !!

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  • I think he just informed Ms Clinton and Mr Sanders he would be happy to accept an appointment to the Supreme Court.

  • Ha! At 77, unless he is now senile, Posner realizes he will never sit on the Court. Note how he never said anything about these views as long as we had a Republican president in office and Posner still had hopes of ending up on the Court. Never think that the average judge is not as motivated just as much by ambition as the typical politician. Posner in the past few years took quite a few swipes at Scalia who, I am sure, he hated because Scalia, who was of Posner’s generation, was sitting in “his” seat on the Court. “What fools these mortals be!”

  • Without respect for the US Constitution, there is no meaning or authority in the US Seventh Circuit Court of Appeals. Or in any other federal court. Or in federal anything. Posner just explained himself into irrelevance by wishing that all the laws be made flat.

  • the constitution contains a mechanism for keeping it relevant to the changes the country has endured and the changes it faces.

    it is not the constitution that is outdated. it is the totalitarianism that relies on the use of force to control people with unjust laws.

    judges do not have the authority to determine what human behaviors a society must allow. when they try to force a community to accept behaviors the community considers harmful, unethical or immoral, judges are overstepping their authority. deciding on what behaviors are unacceptable is the responsibility of the legislative branch of a government.

    the only reason that judges are being allowed to legislate is because those responsible for legislating are allowing judges to overstep their authority. the same can be said of those responsible for administering our laws and governments. they do not have the moral courage to do their jobs.

  • “the only reason that judges are being allowed to legislate is because those responsible for legislating are allowing judges to overstep their authority.”

    Because the Democrat party is in favor of judges legislating from the bench, since the results almost always advance a leftist agenda, and Democrats in Congress block any attempt to reign the judges in.

  • Don, in one of the post 9/11 “War on Terror” cases, the Supreme court ruled among other things that war crimes trials at Guantanamo (and presumably anywhere else in the future) required that the U.S. military MUST practice civilian police rules as to the collection and documentation of evidence on the battlefield. President George W. Bush should have publicly stated that this ruling was an usurpation of presidential authority as commander-in-chief of the military and was therefore unconstitutional. He did no such thing. So, this problem is much more pervasive than just Congress.

An Exercise in Raw Judicial Power

Thursday, January 22, AD 2015

As we observe the sad forty-second anniversary of Roe v. Wade, the Supreme Court decision that overturned all state laws banning abortions and effectively served as a judicial death warrant for tens of millions of innocents, I think it is appropriate to pay tribute to the two dissenting Justices, Byron White, a Democrat, and William Rehnquist, a Republican.  Here are the texts of their dissents:

MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons — convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical adviser willing to undertake the procedure.

The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

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15 Responses to An Exercise in Raw Judicial Power

  • “pregnancies that pose no danger whatsoever to the life or health of the mother”
    Any law that allows an abortion to be performed to preserve the life or health of the mother will prove unworkable. This was the position in Scotland before the Abortion Act 1967.
    In practice,
    (1) an unqualified abortionist was always prosecuted
    (2) the Crown Office would not challenge the clinical judgment of a salaried consultant or registrar, still less a professor, in a public hospital performing an abortion on an NHS patient; gratuity was seen as a sufficient guarantee of good faith.
    (3) an abortion performed by a doctor in private practice would be investigated by senior practitioners, nominated by the Crown Office, with indications of good faith including consultation with colleagues, such as a general practitioner, a gynaecologist, a psychiatrist; admission to hospital or a recognised nursing home; observance of normal professional etiquette, such as a consultant being called in only by the patient’s general practitioner; reasonable fees being charged and the keeping of proper records.
    How doctors chose to interpret the law varied enormously. According to the Scotsman (23 December 1966), one pregnancy in 50 was terminated in Aberdeen, compared to one in 3,750 in Glasgow. The difference resulted from the rival interpretations and clinical practice of the two Regius Professors of Midwifery, Dugald Baird at the University of Aberdeen and Ian Donald at the University of Glasgow, both of whom voiced their rival views in public. What was abundantly clear is that the Lord Advocate and the Crown Office had no intention of testing the limits of the law in the courts.
    Many saw the 1967 act as clarifying, rather than changing, the law and introducing additional safeguards (two doctors, licensed facilities) rather than expanding it. Many Christians in both houses, voted for the bill, believing it provided the greatest measure of restriction and regulation that Parliament would approve.

  • This is appropriate here because the U. S. Catholic Conference needs to read it.
    Jesus wept tears over Jerusalem. Jesus wept tears of Joy over the heavenly Jerusalem coming down from heaven. Jesus wept tears of Joy for His Father.
    THE NEW AGE, THE NEW SECULAR ORDER emblazon on the U.S. dollar is the Heavenly Jerusalem coming down from the sky. Jesus wept over Jerusalem. Jesus wept tears of joy over the Heavenly Jerusalem coming down from heaven.
    The righteous brother of the parable of the Prodigal Son refused to weep tears of joy at his father’s command to: ”Rejoice, your brother was dead but now he is alive.” Old righteous brother begrudged his father his tears of joy and his rejoicing and his father’s tears of joy and his father’s rejoicing. Righteous brother refused to bring gladness to his father’s heart. Even then, the father reminded the righteous son that “all that I have, is yours.”
    Would it not have been great, if the righteous brother had brought his friends to the prodigal’s party to make merry with his father as is commanded in Deuteronomy 14: 22-29 about tithing: “and there before the Lord, your God, you shall partake of it and make merry with your family”? Instead he, (there is no other word, but the word I cannot write here) complained about not having enough, not enough heart to ask his father for his friends’ banquet, not enough heart to request to literally throw a party for his friends.
    Deut.14: 28-29 continues, and this is particularly interesting because this passage impinges of the illegal alien. The words of God, Himself: “At the end of every third year you shall bring out all of the tithes of your produce for that year and deposit them in community store, that the Levite, who has no share in the heritage with you, and also the ALIEN, the orphan and the widow WHO BELONG to your community, may come and eat their fill; so that the Lord, your God may bless you in all you undertake.”
    The individual conscience of the citizen CHOOSES to bring out his tithe, every third year, to donate to the community stores. Read food bank. It is not nice to fool Mother Nature, nor try to cheat God. The individual conscience of the man cannot cheat God without forfeiting his life and his immortal soul.
    Obama tries to square himself with God for abortion and legal sodomy by extorting tithe offerings from his fellow citizens without their valid consent or their willingness of conscience. He, then, donates his contraband to the poor, and blows his horn, adorns himself with crowns and gets the democratic party favors.
    Getting back to the new Heavenly Jerusalem descending from God, (as Obama has tried to depict himself). cannot happen in the absence of Truth and Justice.
    I was listening to Malachi Martin R.I.P. Malachi Martin was an exorcist for several decades. Martin said that coming into the presence of evil modifies the soul of even a good person. The soul of the evildoer is modified and the soul of the innocent person is modified. Martin called coming into the presence of an evildoer “dangerous”; an open door to Satan and Lucifer.
    The government is demanding that the innocent proprietors of businesses suffer the entrance of evildoers into their midst as “the price of citizenship.” The state does not own the innocence, nor the soul, nor the sovereignty, nor the personhood, nor the informed consent, nor the CITIZENSHIP, nor the life of the citizen, any citizen.
    For the state to impose regulations demanding that an innocent soul be “modified” by an evildoer is separation of church and state violated. The citizen constitutes and forms the government.
    “Do not weep for me, but for your children”. If Jesus knew about the New World Order”, it was not new.
    “A putative mother” is a very real mother, since the newly begotten child makes a mother of the woman. If the woman was not a mother, she would be a woman without a child. The woman hauled her child into court and demanded his extinction without “due process of law”, literally annihilating the Court.
    The death of the mother is predicated on her imminent death, not a prognosis.
    Snowflake babies, those frozen embryos adopted and gestated are citizens with sovereign personhood even as they are created and destroyed. Science, DNA, IVF and ABORTION, the destruction of humanity, have proven that a sovereign human being comes into existence at fertilization of the egg by human sperm. Enough with the ignorance, denial and tyranny.
    I am sorry this is not better.

  • “I am sorry this is not better”.
    Your not in the position to apologize since your synopsis and arguments are clear and eloquent. You make sense Mary. Your pro-life efforts make a difference. Just consider the babies born that wouldn’t of had a chance if you and other lifers we’re not visible or present to these women who had a change of heart.

    One day in Gods glory, He might just open a book for you. Don’t be surprised if he shows these souls to you. Each and every one, given a chance for life.

  • MPS, your remarks are relevant exactly how?

  • Novus Ordo Seclorum= “A new order to/for the ages,” actually.

    It wouldn’t take much rewriting to apply White to the gay marriage case that will be before the court in a couple of months.

    I find nothing in the language or history of the Constitution to support the Court’s judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

  • Ernst Schreiber: “Novus Ordo Seclorum= “A new order to/for the ages,” actually.”
    .and that would be to follow our conscience to vocation through freedom and the pursuit of Happiness.
    I love Byron White. Byron White defended against Hugo Black the right to a relationship with almighty God in public square, prayer.
    The one word I would change in his writing is the word: “constitutionally dissentitled.” to constitutionally disenfranchised. The word “disenfranchised” brings the weight of our civil rights to bear as “We, the people…” especially since the scientific proof of the newly begotten child as having constitutional civil rights to Life as our constitutional posterity from the very first moment of his existence.

  • The Supreme Court was as wrong in the Roe v Wade decision of the late 20th century as it was in the Dred Scott decision in the mid 19th century. When the issue is important, the Justices sitting on the bench render the most unjust decisions possible. They fail to realize in this life that the Supreme Justice is NOT a disinterested spectator in the events of human affairs, but they will find out in the next. Yesterday a black man was not a human being and today a baby is not a human being. God sees this. The first time He allowed a bloody civil war to punish us. What will He allow today?

  • Art Deco wrote, “your remarks are relevant exactly how?”
    As the dissenting justices both acknowledge abortion to be lawful in some circumstances, any attempt to restrict or regulate it wouldbe, in practice, have proved futile.
    Things would have been no different, if the majority had upheld the Texas statute, but subject to that limitation. The Scottish experience shows why.

  • Robert Bork wrote a devasting critique of the case in clear language,exposing it as a complete sham.His book should be required reading for anyone going to DC to march.

  • “Things would have been no different, if the majority had upheld the Texas statute,”

    Complete and total rubbish. The number of abortions exploded after Roe, the best estimates indicating a doubling in number.

    Additionally there is quite a difference between a country having a high murder rate and the same country legalizing murder.

  • The very nature of liberty requires a free people to allow and accept behavior from others that is both repugnant and benighted.

  • It does not require that people allow the destruction of innocent human life.

  • On the bright side, Roe v Wade was a 7-2 decision. Most decisions upholding abortion since then have been by the thinnest of margins, many only 5-4.

  • Denver, you are describing license, not liberty.

  • Denver: “The very nature of liberty requires a free people to allow and accept behavior from others that is both repugnant and benighted.”
    Snowflake babies, eggs fertilized, frozen and gestated have grown into “people”. (44,000 in U.K.) You say “a free people” must be given due process of law. “a free people” ought not be murdered.

Sorry Mr. Franklin, We Couldn’t

Wednesday, June 26, AD 2013

I was going to provide an analysis of both of the Supreme Court decisions today related to gay marriage, but instead I will focus on Hollingsworth v. Perry, which was concerned with California’s Prop 8. But first a couple of thoughts about US v. Windsor, the DOMA case. The immediate short-term impact of the case is somewhat limited in scope. Federal benefits will be conferred upon same-sex couples who live in states that recognize their partnership as marriage. The long-term impact, however, is much starker, as will be explained in a moment.

Both Justices Alito and Scalia provide blistering dissents, and they should be read in full. They disagree on a technical though not insignificant point about the standing of the Bipartisan Legal Advisory Group, or BLAG (and for the record, I tend to side with Alito). First of all, Scalia properly notes that, despite the rhetoric in Kennedy’s opinion, this was not a federalism case, or at least the case was not decided on federalism grounds. In fact, contrary to exhortations of some so-called libertarians on twitter, this case has the ultimate effect of further eroding states’ rights regarding same-sex marriage. Had this case been decided on federalism (10th amendment) grounds, then the outcome would have been possibly justifiable. But the majority’s reliance on 5th and 14th amendment concerns – effectively relying on the absurd legal doctrine of substantive due process – runs completely counter to the federalism argument, and paves the way for future challenges to state laws that prohibit same-sex marriage.

Justice Scalia recognizes this farce for what it is, and reminds the public of the exchange between these two very same Justices ten years ago to the date in Lawrence v. Texas. Then Justice Kennedy assured us all that striking down anti-sodomy laws would not eventually be used as a rationale for upending traditional marriage, and Scalia scoffed at him in the dissent. Well, guess who’s looking prophetic now. Even left-wing pundit David Corn (gleefully, this case) acknowledges Scalia’s prescience. Kennedy, backed up by the obtuse Chief Justice, assures us that nothing in this decision interferes with state decision-making on marriage. Once again Scalia scoffs, and, sadly, at some point in the future he will no doubt be proven right.

As for the Prop 8 case: my what a tangled web. I have been defending Chief Justice Roberts’s decision (joined, I may remind you, by Antonin Scalia along with three of the Court’s leftists) on the grounds that had the case been decided on the merits, it is quite possible that the same 5-4 majority in Windsor would have held Prop 8 to be unconstitutional, and this would have been the Roe v. Wade of gay marriage. Now, I’m not so sure.

Admittedly, I am somewhat conflicted on the ruling on standing. The majority concludes that the petitioners did not have standing because they were not official delegates of the state, and they did not experience any harm due to the appellate court’s ruling decreeing Prop 8 to be unconstitutional. From a  certain point of view, this is a perfectly acceptable legal holding. Scalia made a very good case in his Windsor dissent for a blanket denial of standing to all non-state petitioners in such cases. Scalia is acting fairly consistently, thus that explains why he voted with the majority here.

That said, the Chief Justice’s opinion is very worrisome, and not just from the standpoint of traditional marriage. As Justice Kennedy (!) explained in his dissent (joined in totality by Thomas, Alito, and Sotomayor), the petitioners here do, in effect, represent the state. In fact the state constitution all but says that when it comes to ballot initiatives, ordinary citizens are agents of the state. I would go a step further and suggest that Roberts offers up a very constrained view of who the state is. According to his logic, the “state” is nothing more than the Chief Executive and the bureaucracy. From a technical legal standpoint this is fine, but the very point of a ballot initiative is to bypass state officials whom the citizenry at large have decided are not acting in their best interests. I have written before about my concerns (to put it mildly) regarding ballot initiatives, but it is illogical to deny that the ballot initiative process changes the normal dynamics of who has legal standing.

The Chief suggests on page 8 of his opinion that once the proposition was approved and enacted, that petitioners no longer had a role in enactment. But if the executive branch of the government refuses to defend the amendment or statute, that leaves the citizens with no legal recourse.

The petitioners relied on the case of Karcher v. May to argue that they indeed had standing, but Chief Roberts denied that the the ruling there was applicable.

Far from supporting petitioners’ standing, however, Karcher is compelling precedent against it. The legislators in that case intervened in their official capacities as  Speaker and President of the legislature. No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U. S. 131, 137 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court.

But in a case revolving around a ballot initiative, haven’t the voters themselves become, in essence, the equivalent of legislators?

Roberts’s reticence to grant standing in this case is understandable, and I can see why Scalia would join the majority. In his Windsor defense, Scalia admirably rails against the idea of an omnipotent judiciary that decrees on all constitutional issues just because it wants to. An overly broad interpretation of who has standing empowers the judiciary. But I think this is a rare case in which judicial deference actually damages the workings of the republican process. For good or ill, Californians have favored a much more directly democratic system, and the Court’s majority fails to factor that into its decision-making. By denying standing to the petitioners, the Court has said that citizens have no real redress should state executives defy their expressed wishes.

Which leads me back to my uncertainty over the rationale over the votes cast in these two cases. I’m in the odd position where I disagree with the person who I think has the cleaner motive, but agree with the person whose motives are perhaps suspect. I have no doubt that if this case had been decided on the merits, Chief Justice Roberts would have voted to uphold Prop 8, while I’m not so certain about Kennedy.  Scalia acted consistently with his overall principles, as did Alito (who would have granted standing to BLAG). Thomas offered no opinion in either case, but I suspect his reasoning would be similar to that of Alito, and so he acted consistently on the standing question as did, quite frankly, Sonia Sotomayor. As for the Court’s three other left-wingers – well, they did what they always did and just voted for the right (in their minds) outcome, reasoning be damned.

No matter the rationale for Roberts’s decision, it has ill portents. If Roberts acted strategically, then he abdicated his responsibility to be an impartial arbiter of the law. If he acted earnestly, well, he was simply wrong. More importantly, we’re stuck in a situation where the actual wishes of a democratic majority are trivial concerns compared to the desires of a handful of unelected judges. No matter how they voted today, this is simply untenable, and there is no end to this judicial tyranny in sight.


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5 Responses to Sorry Mr. Franklin, We Couldn’t

  • I think the style of rhetoric in Kennedy’s DOMA decision makes it pretty clear what his opinion is. Unless he puts states’ rights on the absolute highest pedestal, but it seems very weird to declare the issue illegitimate and prejudiced and limit that view to the federal govt.

  • “[T]he Court has said that citizens have no real redress should state executives defy their expressed wishes.” Except to vote them out of office; they can always do that, if they feel strongly enough.

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Herewith is the First Amendment. DOMA and Proposition 8 are peaceable assembly. Same sex so-called marriage is not equl Justice because the fraud involved in male brides is mob mentality. Proposition 8 judged by Vaughn Walker, a closet practicing homosexual with a vested interest, without the decency to recuse himself is a fraud. Government perpetuated fraud is tyranny.

    God is Justice. Atheism has no standing in a court of law.

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The Shelby Decision and Uncle Toms

Tuesday, June 25, AD 2013

This is, in a sense, a two-part post. The first part examines the decision handed down by the Court in Shelby v. Holder, and the second looks at the hysterical over-reaction.

The decision itself is fairly restrained. In a 5-4 decision, with Chief Justice Roberts delivering the opinion of the Court, the Court ruled as unconstitutional Section 4 of the Voting Rights Act of 1965. Actually, it really just ruled that Congress’s application of a 48-year old formula for determining which states and counties had to seek clearance from the federal government for any changes in its voting laws was lo longer justified. States subject to pre-clearance were those states which had poll tests and other restrictive measures in place at the time of the law’s enactment, and which also had enormous gaps in white versus black voter participation. This formula has remained unchanged for nearly half a century.

As the Chief explained in the ruling, the Court permitted a very wide abrogation of state authority in its decision upholding the Voting Rights Act (Katzenbach v. Morgan). The Court permitted what it termed “an uncommon exercise of Congressional power” due to “exceptional conditions.” As the Chief further explained, those exceptional conditions no longer applied, and indeed in those states and counties subject to pre-clearance there has been increased racial parity in terms of registration and participation. In fact, if one were to construct a list of states that should be subject to pre-clearance based on disparities in voter participation, there would be more justification in including Massachusetts instead of, say, South Carolina.

Justice Ginsburg in her dissent quips, “In the Court’s view, the very success of  Section 5 of the Voting Rights Act demands its dormancy.” By the standards established by the dissenters, the formula established in Section 4 could never be deemed unconstitutional. Further, as Chief Justice Roberts says in his opinion:

The dissent treats the Act as if it were just like any other piece of legislation, but this Court has made clear from the beginning that the Voting Rights Act is far from ordinary. At the risk of repetition, Katzenbach indicated that the Act was “uncommon” and “not otherwise appropriate,” but was justified by “exceptional” and “unique” conditions. 383 U. S., at 334, 335. Multiple decisions since have reaffirmed the Act’s “extraordinary” nature. See, e.g., Northwest Austin, supra, at 211. Yet the dissent goes so far as to suggest instead that the preclearance requirement and disparate treatment of the States should be upheld into the future “unless there [is] no or almost no evidence of unconstitutional action by States.”

Ultimately, the decision is of somewhat limited scope:

Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions. Such a formula is an initial prerequisite to a determination that exceptional conditions still exist justifying such an “extraordinary departure from the traditional course of relations between the States and the Federal Government.” Presley, 502 U. S., at 500–501. Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.

Of course this hasn’t stopped the left from completely over-reacting. A post on the Corner compiled the most over-the-top reactions. Melissa Harris-Perry’s tweet of “Damn, that citizenship thing was so great for awhile,” certainly was cute, but no one is touching Minnesota state rep. Ryan Winkler, who tweeted, “SCOTUS VRA majority is four accomplices to race discrimination and one Uncle Thomas. Marriage decision may blur Court’s backsliding.” Winkler soon deleted that tweet, and followed up with this whopper:

Uh huh.

It’s difficult to determine the most disgusting part of this exchange. Either Winkler is historically illiterate or a liar, though of course nothing necessarily precludes both being true. What’s worse, this white legislator from one of the whitest states in the Union seems to think he knows better than a black man raised in the South about how to deal with racial prejudice. Moreover, whitey has declared himself the judge of authentic blackness. Charming.

Finally, and I realize this is something of a nitpick, but the very term “Uncle Tom” is offensive not just because it carries with it the implicit notion that all African-Americans must think and act a certain way, but because the term itself is based on a character in a historical novel who was the opposite of what the term is meant to imply. I have a feeling that no one who has ever used the phrase has actually read the novel Uncle Tom’s Cabin, because if they had they would have a hard time justifying referring to the character as a race traitor. Then again, we live in a world where Al Sharpton is given legitimacy as a political analyst on a cable news network, so perhaps I underestimate the stupidity of large swathes of the American public.

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6 Responses to The Shelby Decision and Uncle Toms

  • “What? You mean there are racial overtones to an affluent white man representing an affluent white district in a lily-white state (where the term “people of color” refers to Danes) calling out an African-American man as an “Uncle Tom” for not behaving the way an affluent white man believes an African-American is “supposed” to act?”
    ~ Ryan Winkler – D(ouchebag) F(or) L(eftism), MN

  • dunno it sorta seems like a reverse-engineering of the liberal approach to the Constitution, i.e. having a seemingly broad definition of what counts as unconstitutional as far as legislation, as opposed to just blocking/reversing broad liberal judicial decisions. Though it is funny to see liberals appropriating conservative rhetoric about judicial activism for this and when they thought Obamacare was going down.

    as far as “Uncle Tom,” the term is what it is at this point whatever it originally meant. Since it has a defined meaning similar to being a shill I don’t think it’s inherently offensive (not on the level of other slurs anyway) even though people toss it around lazily.

  • A white man calling a black man an “Uncle Tom” is inherently racist. It means “Hey, ‘black’ man, you’re not behaving the way I – a white man – thinks a black man should behave.”

  • The idea that Congress could pass legislation taking away a measure of self government from only certain states always was an affront to the equal protection afforded by the fourteenth amendment, and the Court, as it did today, overlooked the obvious in not striking down the entire statute, however well-intentioned and needed the statute was in many parts of the South half a century ago. Now it is merely a relic of a bygone era. Although of deep emotional significance to liberals, perhaps as a memory of the brief period they did not embrace racial discrimination, the Court gutting the statute has as much practical significance as the Court striking down letters of marque and reprisal.

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  • Law rarely goes away merely because the conditions predicate are no longer true.

    Discrimination laws and the agencies that oversee them continue to expand while the incidents of actual discrimination become fewer and fewer. This ruling is unsatisfactory but the Court could have done little else – the offenses necessitating federal oversight being so grave and the underlying symbolism that the Voting Rights Act engenders in Americans. Actually, it is rather brave and surprising that the Justices took this step.

    What isn’t surprising is Justice Thomas’ position.

    I always ask anyone who is criticizing Justice Thomas whether they have read his autobiography. Either I am told “no, did he write one” or “yes, what a whiner.”

    I have read the autobiography several times. His story is comelling and the blueprint for his choices on the Bench is startlingly clear. The autobiography deals effectively with the Uncle Tom usage debated above since it was written by a very smart man, wholly aware that that mean-spirited, demeaning term was a cross he would have to bear the weight of long after he dies.

Let’s Ignore That Pesky Constitution

Monday, December 31, AD 2012



Louis Michael Seidman, a professor of Constitutional Law at Georgetown (surprise!), doesn’t think much of the Constitution as he explains in an op-ed in the New York Times:

Consider, for example, the assertion by the Senate minority leader last week that the House could not take up a plan by Senate Democrats to extend tax cuts on households making $250,000 or less because the Constitution requires that revenue measures originate in the lower chamber. Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?       

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.       

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

Of course we should still obey those parts of the Constitution that Professor Seidman likes:

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.       

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.       

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

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50 Responses to Let’s Ignore That Pesky Constitution

  • “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.” John Adams

  • I remember a book about rewriting the Constitution coming out just after Obama’s first election. I didn’t read anything about it but I believe its premise was essentially that of Prof. Seidman.

    This of course is part of the long-term project of the Left. The Constitution stops their control of power. More of this to come for sure.

  • The man reveals that he has no business teaching constitutional law, and, one might wager, never did.

    Legal security requires that positive law be respected. If you do not care for the positive law, advocate altering it through the mechanisms it provides. Does this occur to Prof. Seidman?

    Actually, though, we would probably be better off with a body of constitutional law enacted by statute (with interstitial case law) as they do in Israel and New Zealand than with the system we have now. As of now, any statutory enactment can be annulled by a set of tenured lawyers meeting in secret. The lawyers in question usually reflect the tastes and prejudices of the elite bar and the law professoriate and have a structurally antinomian world view, just like this character. Let’s ignore the whole thing and tell Prof. Seidman to get stuffed.

  • Necessity a.k.a. the common good is the alibi of all tyrants.

    From Instapundit: “I dunno. Does this mean we should ignore Roe? Or Miranda? And Baker v. Carr? And if the Constitution is this obsolete and “evil,” then maybe secession isn’t off the table after all? . . . .”

    “It’s beyond even that. Their entire authority comes from the Constitution, and is the only reason we aren’t entitled simply to ignore them, or hang them from a tree for their insolence. Take away that source of authority because you don’t like the constraints it involves, and you’re a lot closer to the tree. Those who think themselves above the law are not in a position to hide behind it.

    “MORE: On Facebook, Randy Barnett snarks: ‘I suppose this means the income tax could now be unconstitutional if we can just get 5 votes.’

    “MORE STILL: Reader Bill Bacon writes: ‘If, after all, the Constitution isn’t to be followed then doesn’t that mean we default to the Articles of Confederation? Don’t know about you, but I personally like the idea of having to get unanimous consent of the states to raise taxes….’ Heh.

    “Related: New York Sun: The Times Gives Up .’It will be illuminating to see how far the Times takes its latest lament, particularly because these days the Left generally seems to see the Constitution as a threat more to the liberal than the conservative cause.’ As I say, that’s an admission of sorts.”

    No one would know what is law and what not. Whimsical gangsters running unchecked/unlimited government will decide. Talk about uncertainty.

    The ruling class will support it. To the ruled class, “We know what is good for you, shut up!”

    From Marcus Lucanus, “Pharsallia”, “Here I abandoned peace and desecrated law; fortune it is you I follow. Farewell to treaties. From now on war is our judge!”

  • No one would know what is law and what not. Whimsical gangsters running unchecked/unlimited government will decide. Talk about uncertainty.

    What is disconcerting is that the person sending up this trial balloon is a law professor – someone who argues for a living and teaches others to argue for a living. He does not seem to have thought this through. Neither has the editor of the op-ed page.

    The liberal arts college I know best had a provision in its faculty handbook which allowed the provost to dismiss a tenured professor whose medical or psychological condition prevented him from working. A septuagenarian philosophy professor abruptly retired in 1998 and the word on the street on that campus was that he was told he could retire or face dismissal under that clause. He had been manifesting peculiar behavior for about five years at that point. The Alzheimer’s diagnosis was made about a month after he taught his last class.

    The law dean at Georgetown needs to read the little used clauses in faculty contracts.

  • …but to overthrow the men who pervert it.”

    What then, when the perverted make up the leading body? When the perverted continue to vote the perverted in? What next?
    This Constitutional expert might want to step out of the cesspool and rinse off.

  • I have mentioned Orestes Brownson and his ideas about Catholicism and America before in these comments. From:
    I get the understanding that the framers built better than they knew and that

    Brownson concluded that Americans think both falsely and detrimentally about liberty when they believe that the Constitution is their own creature to be manipulated at will. “

  • The thing is that those who justify their activist ideas under the guise of the philosphy of a “living breathing” Constitution is that they don’t actually believe that the Constitution is living and breathing because every living organism grows in an organic manner. And their understanding of the Consitution is anything but that!

    Robert George wrote an interesting article about a decade ago on Lincoln and his concern about judical despotism:

  • I’ve heard it said that when it rains, the Angels are weeping. Beginning to think that for the past few years it has really been the Madisons (James and Dolly) and the rest of the Founding Fathers.

  • Jefferson wrote to Madison on September 6 1789: “it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. ”

    He goes on to argue that a right of amendment or repeal is not a satisfactory equivalent.

    Jefferson clearly embraced the concept of law as an expression of the general will.

  • Jefferson clearly embraced the concept of law as an expression of the general will.

    Something of interest to Jefferson aficionados. Never been true in this country.

    The trouble we have had for about 60 years now is the belief that the law should be a function of the volonte generale of the appellate judiciary and their friends in the academy. Canada developed a particularly virulent case of this social disease when the country foolishly patriated its constitution with Pierre Trudeau’s repellant “Charter of Rights” appended. Figures in Israel’s judiciary would clearly like to seize this sort of discretion but are constrained by the capacity of the Knesset to put them out of business. The expression of this in Europe is not judicial misfeasance but the abuses of the European Commission, &c. The regime class is all over the occidental world and needs to be forcibly dispossessed.

    The political theorist Gottfried Dietze contended that the Anglophone world had seen repeated instances of what he referred to by the odd term ‘diffidatio’. He thought they occurred on cycles measured in centuries and that we were due for another. The baron’s mutiny which produced the Magna Carta, the revolt against Charles I, and the American Revolution were examples he offered of a social mechanism restoring ordered liberty. Our enemy in this country is not anything so discrete and forthright as an abusive crown. It is a whole social system whereby everything is put under the supervision of lawyers advised by the academy and the helping professions and justified by systemic mendacity (courtesy the bar, the academy and the dependents in the press corps).

  • Art Deco

    As Jefferson says, in pointing out thatt he power of repeal is not an equivalent:”But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”

    It is worth also recalling his view on the September Massacres: “”Many guilty persons fell without the forms of trial, and with them some innocent. These I deplore as much as anybody. But—it was necessary to use the arm of the people, a machine not quite so blind as balls and bombs, but blind to a certain degree—was ever such a prize won with so little innocent blood?” If he believed that maintaining the constitution was “an act of force, not of right,” he was plainly not a man averse to the people asserting their rights.

    He was more of a Jacobin, than is commonly acknowledged.

  • MPS, I am no history buff, but what you said about Jefferson’s view of the September Massacres in the late summer of 1792 in France indicates that he believed the ends justified the means even though he deplored much of what happened in the means: the loss of innocent life. The Roman Church was severely persecuted during this period, principally because Pope Pius VI refused in 1791 to give support to a civil Cnstitution that attempted to re-organize the Church hierarchy based on the will of the “peepul.” Here is a link to his letter: I do not understand how anyone could think the bloody violence of the French Revolution was a good thing. This is 1st Samuel chapter 8 taken to an extreme. And in today’s Amerika we may yet find the “peepul” to become as ruthless and bloodthirsty as those in France in the 1790s.

  • MPS, Jefferson’s correspondence is just not that important. That was not how political institutions were structured in 1800 and that is not how they are structured today. If you are fascinated with Jefferson the person or with a history of controversies and currents of thought in the latter 18th c. anglosphere, I suppose his opinions are interesting.

  • And in today’s Amerika we may yet find the “peepul” to become as ruthless and bloodthirsty as those in France in the 1790s.

    Cud-chewing indifference and the celebrity culture are much more of a problem among rank-and-file Americans than the formation of mobs. Look at the statistics on lynching over the period running from 1893 to about 1946. They tell a story of a declining propensity or capacity to engage in violent collective action. Where you see mobs and riot today, it is almost invariably in connection with public entertainments like sporting events, carnivals, and rock concerts.

    Our real problem is not with mobs, but with the social strata and occupational subcultures which fancy themselves our betters.

  • Art Deco, I think that I have to agree with you. However, isn’t the end result the same: eventual persecution of the Church?

  • MPS, Jefferson’s correspondence is just not that important.

    To the degree that his ideas have been incorporated and implemented by the left, unfortunately they are.

  • Paul W. Primavera & Art Deco

    I quote Jefferson, not because I agree with his views, but because Jefferson was far from being an unimportant figure in the American Revolution.

    His views on the Church are quite explicit: “This principle, that the earth belongs to the living and not to the dead, is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions, whether the nation may change the descent of lands holden in tail; whether they may change the appropriation of lands given anciently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity; whether they may abolish the charges and privileges attached on lands, including the whole catalogue, ecclesiastical and feudal; it goes to hereditary offices, authorities and jurisdictions, to hereditary orders, distinctions and appellations, to perpetual monopolies in commerce, the arts or sciences, with a long train of et ceteras”

    In that year of 1789, the theory that political power comes from those over whom it is exercised, and depends upon their will; that every authority not so constituted is illegitimate and precarious; that the past is more a warning than an example; that the earth belongs to those who are on it, not under it, was obviously current on both sides of the Atlantic.

    Hamilton, by the by, called the Constitution, “a frail and worthless fabric, and a temporary bond.” John Adam, an aristocrat at heart (which Jefferson was not) declared that “No Republic could ever last that had not a Senate deeply and strongly rooted, strong enough to bear up against all popular storms and passions. That as to trusting to a popular assembly for the preservation of our liberties, it was the merest chimera imaginable; they never had any rule of decision but their own will.”

  • To the degree that his ideas have been incorporated and implemented by the left, unfortunately they are.

    I suspect that rather tends to exaggerate the erudition of working politicians and social policy wonks. However, you’re the intellectual historian, not me, and you have the Congressional staff post, so perhaps you can elaborate. Daniel Patrick Moynihan once said that in nearly twenty years in politics and government, he had never had a discussion of ideas. Have things changed? It is difficult to believe that Louise Slaughter (to take one example) would know Jefferson’s correspondence from a cheap romance novel.

  • The Constitution affirms that the sovereign personhood of each and every individual citizen constitutes government and that government is the servant of the people. The Costitution also affirmes that there is a Supreme Sovereign Being (there can be only one Supreme Sovereign Being, as two preempt each other) WHOM sovereign persons must acknowledge in thanksgiving for Divine Providence. God, Whom we all must be free to worship, as only God has endowed unalienable rights, eternal truths that our founding fathers inscribed in our founding principles. As Justice Scalia states: Our Constitution has got us dead to rights. America is the only nation on the face of the earth that guarantees freedom, truth and Justice.

  • Art Deco: “Jefferson clearly embraced the concept of law as an expression of the general will.”
    The law must bring us Justice and Truth, therefore, a majority of one in Truth and Justice that all persons might be free. E Pluribus Unum. Jefferson clearly embraced the concept of law as an expression of good will. Peace on earth to men of good will.

  • People often accuse the Right of being anti-intellectual. It’s hard to imagine a more anti-intellectual approach to law than:

    Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?

    Simply staggering.

  • Fascinating discussion! Happy 2013!

  • “Jefferson clearly embraced the concept of law as an expression of the general will.”

    Jefferson reject the authority of the Church and 2000 years of Sacred Tradition in having created his very own Bible:

    Would not such a person that believe that all rightful authority comes from the “peepul” and not from God?

    I do not denigrate Jefferson or his memory, and he certainly was a great man. Nevertheless, in being a man, he was sometimes (maybe oftimes) wrong.

  • Mary, I have not read Jefferson’s letters. You are confounding my views with those of Michael Patterson-Seymour.

  • John Adam, an aristocrat at heart (which Jefferson was not)

    John Adams was an attorney living and working in the village of Braintree, Massachusetts. Thomas Jefferson was a country squire. Why is a member of the bourgeois and proto-urban sliver of colonial America an aristocrat at heart and a man occupying a position analagous to the British gentry something else?

  • The Reign of Terror in France was nothing more than the Act of Supremacy in England, power run amok. Jefferson worked against the Reign of Terror coming to America after the Revolutionary War. Jefferson wanted something better for America. We had men of honor: George Washington who declined a crown to be king. Francis Marion, the Swamp Fox, who refuse to take vengeance and restitution against those who supported England duing the War of Independence, after the peace treaty was signed. It seems that our Reign of Terror came before and precipitated our Declaration of Independence. Our Amendments do not change the Constitution, but reinforce every right and freedom. If the Constitution must be amended let it be to make it stronger and more precise.

  • Art Deco: “Mary, I have not read Jefferson’s letters. You are confounding my views with those of Michael Patterson-Seymour.” Yes, you are correct. The general will or the will of the people must be of a people of good will for the common good. Moving foward in good will. Do accept my apology.

  • Discussing the various personalities and states of life of those founders is not as interesting to me as the philosophical understanding of what it means to have a constitution, where it came from and how it was possible. America’s “providential” or unwritten constitution underpins our Constitution written by TJ etal. ??
    In the article I submitted to you “The written constitution is merely legislative; only a people who are already constituted can lay down the law. An unwritten constitution is always the precondition for a written constitution, and it sets limits to what the written constitution can reasonably accomplish. “?

    In these comment boxes many are talking in effect, about the contract.
    I wonder if we no longer have the precondition to have such an agreement?

    “American founders had as “givens” the republican form of government from Rome, science and art from Greece, British political institutions and the Christian truth about the rights of human beings — “the rights of beings who are both part of and transcend by their natures a particular political community.” (Lawler) ?

  • America’s “providential” or unwritten constitution underpins our Constitution written by TJ etal. ??

    There were 55 delegates to the convention in Philadelphia in 1787. Jefferson was not one of them. George Washington was there, Benjamin Franklin was there, Alexander Hamilton was there, James Madison was there, Elbridge Gerry was there. Adams and Jefferson were not.

  • : ) of course you are right Art. I goofed – and I know better– but still asking whether or not we have the social underpinning for the Constitution.. as did the culture that was able to declare a Declaration and constitute a Constitution

  • Waal: here is what the sociopathic Mr. Trudeau persuaded Canadian legislators to accept:

    Be most pleased if Dr. Zummo would publish an annotation and critique of form and content.

  • I just keep looking over that editorial trying to articulate exactly what’s wrong with it, but there’s too much wrong with it. It is, simply put, completely wrong. There’s nothing you can point to and say “this is where his thinking went off the rails”. It was never anywhere near the rails.

    But just to keep myself from going nuts, let me spell this out. He says that Congress shouldn’t be bound by rules like the origination of spending bills from the House. But he also says that there should be two houses of Congress. Well, where is the list of rules that we should retain or ignore? What is the algorithm? If none exists, how are we to determine which rules are obsolete? He says that on the flexible points (without defining which ones are flexible), each party should have to make its case on the grounds of the political moment. Make the case to whom? It bothers him that, since Supreme Court decisions have been written from differing legal theories, a person can’t agree with them all. How are people going to come to agreement without any legal theories? Even if you want to call such an environment “law”, and I don’t see how you could, you could never call anything settled law, because there’s no means to settle anything.

    Art suggests that there’s mental illness involved. I think he’s right. And I know that a newspaper doesn’t necessarily endorse every opinion piece it publishes. But even if the professor has lost his mind, how can the NYT justify printing his editorial?

    The thing is, the author isn’t advocating for liberal policies. The only underlying ideology that could allow his approach is nihilism. That rules which has power to rule.

  • Be most pleased if Dr. Zummo would publish an annotation and critique of form and content.

    Wait, now I’m being given homework?

    Just one correction for Art – don’t work for Congress, though I know plenty that do. You’re probably right about their understanding of political philosophy.

  • To clarify my previous remark: I was referring to Congressmen, not the staff. If the people that I knew that worked for Congress were actually members – including the liberals – it would be a marked improvement.

  • Let’s ignore the pesky president. Let’s ignore the lousy laws. Let’s ignore the crass calumnies. Let’s ignore mealy-mouthed minions.

    From James Scott’s book, Two Cheers for Anarchy, quoted by Instapundit in late November 2012,

    “One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called ‘Irish Democracy,’ the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.”

    Let us become ungovernable.

    “To burst in twain the galling chain, and free our native land!”

  • Wait, now I’m being given homework?

    I do not make assignments, but Tito Edwards lets you post. Anzlyne wants to know what you get in positive law if the cultural underpinnings which attended the original constitution are removed. Pierre Elliot Trudeau’s handiwork, promulgated in 1982, gives us a notion (all the more so because the man was Canada’s answer to John Edwards).

  • Please let me clarify “good will”. If 99.9% of the will of the people voted for abortion, ssm, pornography, prostitution, and only 0.1% voted for the Right to Life, virtue, virginity and innocence, the 0.1% will of the people would become law, because this 0.1% has maintained their sovereign personhood in truth to constitute the government. It is the duty of government to protect and defend the good of the people as man is created in virginity and innocence. Corruption does not have freedom of speech, press or assembly. Only truth has freedom. Vice may not be validated. Crime may not be legalized. Only 0.1% of the people may constitute government, the rest have become outlaws and separated themselves from the truth.
    Informed sexual consent begins at emancipation, eighteen years of age. Yet, Justice Ruth Bader Ginsberg has advocated informed sexual consent for girls of fourteen years of age in her book. Of course, the Legislature passed the fourteen years of age as informed consent behind closed doors on Christmas Eve, legalizing rape and prostitution. When the people learned of it, the Legislature moved the age to sixteen and cheated all the young out of two years of security and the rest of the people out of our right to the truth and the blessings of Liberty. The newly begotten sovereign person endowed with unalienable rights by our Creator is the standard of Justice in legal and moral innocence and virginity and constitutes the state with his sovereign personhood endowed by our Creator. The one cell at conception does the will of God by existing as a human being. Lies about fake husbands and fake wives are perjury in a court of law as are lies about human sexuality in pornography.
    Good will is the will of the people who are in conformity with all unalienable rights endowed by our Creator.

  • Anzlyne

    “The written constitution is merely legislative; only a people who are already constituted can lay down the law.”

    That is true, for the nation precedes the state: unlike the state, it is not mechanical in its construction, but organic in its growth. As Mazzini, “They speak the same language, they bear about them the impress of consanguinity, they kneel beside the same tombs, they glory in the same tradition; and they demand to associate freely, without obstacles, without foreign domination, in order to elaborate and express their idea…”

    Of course, the national will embodies the national character, which pervades the natures of its members and expresses itself in their actions.

  • I was just joking, Art.

    Having glanced at the document, what strikes me more than any particular point is the length of it. The Framers originally resisted incorporating a Bill of Rights precisely because they thought an enumeration of specific rights would have indicated that anything not mentioned was not protected. The 9th Amendment was their way of addressing this problem, but I’m not sure it has worked as intended.

    Of course our particular Bill of Rights was shorter and broader. This points to a much different conception of the role of government. If you are developing a government that you believe will have a fairly minimal role in society, then you would not deem it necessary to create an extensive list of basic rights. That the Canadian Bill of Rights (or Charter of Freedoms) runs so long tells you all you need to know about how its framers viewed the role of government in society. The bigger the leviathan state, the more rights you have to specifically enumerate. Note the length of the 1924 Soviet Constitution.

  • Paul Zummo

    It is interesting to compare the Bill of Rights, with the contemporaneous Declaration of Human & Civic Rights (26 August 1789)

    It is a short document, two pages in length. It is a recognition, not an enactment of rights: “the National Assembly recognises and declares, in the presence and under the auspices of the Supreme Being, the following Rights of Man and of the Citizen.”

    Some notable features are the enumeration of “the natural and imprescriptible rights of Man. These rights are Liberty, Property, Safety and Resistance to Oppression (Art 2), the exclusive sovereignty of the nation (Art 3), law as an expression of the general will, which must be the same for all (Art 6) the accountability of all public officials (Art 15- this was particularly directed at the immunity of the Crown) and the laconic Art 16 – “Any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution.”

    Most modern national and international declarations of rights draw on both the American and French models, although, for some reason, the right of Resistance to Oppression tends to be downplayed, or, even, passed over in silence.

  • Thanks Mary De Voe. If the will of the people is not good or does not even seek standards of good, a constitution for a democracy that could endure seems impossible. The constitution becomes “pesky” and irritating like some kind of a harness that chafes.
    ..which reminds me of the “dog joy” a sled dog shows when the kennel is approached by the master with a harness in his hands…. Of course the dog is
    not a philosopher, but the animal does recognize that the freedom to run comes with that particular constraint.

  • Thanks be to God, Anzlyne: In the matter of free will and the will of the people, only good will is free, otherwise, “the people” are impugned, denigrated and violated. When a sovereign person consents to commit a sin and crime his sovereignty over himself is diminished. Diminished capacity is recognized in a court of law, but this is different, in that, the sovereignty of the person endowed at conception is perfect, but with the consent to crime, the person’s sovereignty is diminished, so that, the person may not constitute the state with or without his sovereign personhood. The criminal cannot become a citizen of the state, a state that he has not constituted, and because he has not constituted it, the state is not there for him. Taking citizenship to another sovereign person’s state, one must adhere to the principles adhered to by the other sovereign person.

    In denying to the sovereign person, the human being, his divine destiny in being composed of human body and immortal, rational soul, and in denying his endowed civil rights, and trying to deny to the sovereign person, another citizen, the practice of his endowed unalienable rights, the atheist diminishes, compromises and may be forfeiting his own sovereignty, to the degree of his consent to deprive another citizen, who is a sovereign in his own right. The atheist loses his ability to constitute the state. Without his sovereignty, the atheist has no authentic sovereignty to constitute the state.

    The Freedom from Religion Foundation is good for atheists but for people of faith, it becomes the Freedom from Freedom of Religion Foundation. To the degree that the atheist conspires, intends and consents to deny to another citizen the acknowledgement of the other citizen’s sovereign personhood and his unalienable rights, the atheist diminishes his own sovereign personhood and forfeits his unalienable rights. The atheist becomes a traitor to our founding principles, an outlaw, exiled, cut off from his people.

    In the Catholic Church, those members who conspire and consent to do evil, abuse other sovereign persons, no matter what age, self-excommunicate themselves, to the degree of the sin and crime, immediately upon surrendering their sovereign personhood to the evil. The evil doers are separated from the Body of Christ.

    The Catholic Church was instituted by Jesus Christ to offer worship to God and to continue Christ’s work in bringing souls back to Christ’s Father in heaven.

    The state prosecutes, the Church forgives. The state cannot indulge in prostitution, abortion, pornography, and sodomy and expect to prosecute child abuse.

    The state must prosecute crime. The Catholic Church must forgive sins. When the state validates vice, legalizes crime and indulges in evil, the state, constituted by the good will of free men, ceases to exist as freedom and becomes an atheocracy.

  • Michael Paterson-Seymour: from Jefferson: “This principle, that the earth belongs to the living and not to the dead, etc.” Could Jefferson be calling upon the trust in which all Church property is held for our constitutional posterity, (from the Preamble), for all future generations to come? The “IN GOD WE TRUST”. Our obligation to hand over to the coming generations the sovereignty, the unalienable rights, the founding principles, the reigns of a nations so brought to birth in freedom, that truth and Justice in law and tradition flourish, so that when citizens lay down to sleep in death, they may rest in peace. I find it particularly fascinating that both Jefferson and Adams passed into eternal life on July 4th, only four hours apart.

  • Well said Donald!

  • All I have to say is either this chap has gone off the deep end or simply wants

  • Many persons quote opinions of our founding fathers as law. The Declaration of Independence and our Constitution are ratified by all the states and are our law of the land no matter what is their writers’ opinion. Having been ratified by the states, the law of the land and our founding principles must be interpreted by the Supreme Court as written. The “living Constitution ” cannot be interpreted to mean anything but what it says or unless change is ratified by two-thirds of the states, it is what it is. The principle of separation of church and state is a good example of an opinion of Thomas Jefferson’s that has been abused to the point of criminality in depriving freedom, when in fact, Jefferson stated his opinion to support the First Amendment. In interpreting our founding principles, it is necessary to consider the whole of the law. Speaking to God is free speech even for the unborn. Piecemeal, reconstructed, often destroys the meaning and intent.

  • Mary de Voe

    Jefferson does raise a rather interesting point in his letter to Madison.

    If law is a command (an act of the will), how can it outlast those who will it? In other words, how can the commands of the dead be binding on the living?

    That is why Jefferson argues that all laws should have a “sunset clause” or expiry date.

    For practical reasons, he does not think the right of repeal an equivalent – See my post of 1 January at 12:08 supra.

  • Michael PS:
    “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
    Every newly created human soul brought into existence and endowed with sovereign personhood is an “I AM”. Not one single “I AM” may be left out of “WE”. The Preamble to our U.S. Constitution states specifically the purpose of our Constitution. While the Law of the Land may vary, be amended, or change with the culture, the purpose of its being does not change or may the Preamble be removed, erased of modified. If the rights and freedoms endowed as unalienable by our Creator can be removed or modified, the people are no longer free, in the freedom created for us by our Creator. I keep using “their Creator” as does the Declaration of Independence precisely because atheists and others have removed the acknowledgement of God from our culture and from the public square.
    Our “POSTERITY” are all future generations to whom and for whom we must secure the Blessings of Liberty through our constitutional laws. Is there a right to privacy to destroy our Constitutional posterity? There is not, especially when that right to privacy removes from every male citizen the ownership of his own seed and offspring, and from the newly begotten person the freedom to defend his life from capital punishment, and from our posterity, the right to have informed consent at emancipation. Is there a right to corrupt our natural virginity, innocence and Justice? There is not, especially since Virginity, innocence and Justice are endowed unalienable virtues granted to the human person through the person’s immortal soul created by our Creator and endowed with all virtue and innocence. Is there a right to redefine the human person as having no soul for the purposes of the state? There is not, especially since the state does not create the human being’s rational, immortal soul, nor does the state endow unalienable rights to Life, Liberty and the pursuit of Happiness. These unalienable rights are endowed by our Creator, WHOM, the atheist has removed from us. The atheist has criminalized the worship of God in thought, word and deed, in belief, in speech, in press and in peaceable assembly, abandoning citizens as prey for predators, and countermanding the states’ obligation to protect and preserve our virtue… “and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

  • Michael PS:
    It cannot be otherwise. When all is said and done, it is a dead issue, not the Constitution, but the greedy evil to instill injustice and harm into the nation, by misrepresenting, and miscarrying our Justice.

The Chief Justice’s Ruling: A Gross Expansion of Federal Power

Thursday, June 28, AD 2012

Conservatives looking for some kind of victory in today’s decision in National Federation of Independent Business et al. v. Sebelius, Secretary of Health and Human Services, et al. (the Obamacare case) are pointing to two aspects of Chief Justice John Roberts’s rulings. First, a majority of the Court ruled that the individual mandate was unconstitutional under the commerce clause. Second, the Court ruled that the Federal Government could not force the states to expand Medicaid coverage under the Affordable Care Act. Therefore, the Court narrowed the scope of Congressional power in two different arenas.

Indeed, 44 pages of Chief Justice Roberts’ opinion are absolutely constitutionally sound. During the course of the opinion the Chief Justice made the same argument that many individual mandate opponents have been making for months: you cannot create an economic activity in order to regulate it under the commerce clause. “The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to ‘regulate’ something included the power to create it, many of the provisions in the Constitution would be superfluous.” The Chief Justice latter adds that the individual mandate “does not regulate an existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.” Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Furthermore, “[a]llowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and – under the Government’s theory – empower Congress to make those decisions for him.”

Roberts further tears into the logic of those defending the mandate on commerce clause grounds by pointing out that other activity – such as people not eating a healthy diet – does far more to raise health care costs than does failure to have health insurance. Therefore, under the government’s logic, “Congress could address the diet problem by ordering everyone to buy vegetables.” Therefore, the government’s arguments with regards to the commerce clause are ultimately unsupportable.

The problem with those taking the rosy view; however, is that the Chief Justice’s opinion is 59 pages. The Chief takes a detour roughly halfway through the opinion that is so unfathomable, it almost reads as if an entirely different person wrote the opinion.

Chief Justice Roberts holds that despite the statutory language, the penalty for failure to buy health insurance can more accurately described as a tax. This, despite what the language of the bill actually says, and what President Obama himself even said. And that’s also in contradiction of what had just been argued when discussing the anti-Injunction act. As Carrie Severino puts it:

The main holding of the case is that the mandate is upheld as a proper exercise of the taxing power. This is a decidedly awkward result, as the first section of the result explains that the mandate is not a tax for the purposes of the Anti-Injunction Act. During the oral argument the courtroom erupted in laughter when the solicitor general was asked how he could argue that the mandate was not a tax on Monday but was on Tuesday. In the end, the court chose that implausible — even laughable — result in a fairly explicit attempt to hold the mandate constitutional.

Jeff Goldstein also mocks this bit of legal jujitsu. Intentionalism is a concept that he blogs about frequently, and he rightfully calls out the Chief Justice for his violation of the concept.

According to the CJ, a penalty is indeed a tax when it can be viewed as a tax for purposes of a ruling.  Meaning, a penalty is a tax when a Justice decides to rewrite the law to turn a penalty into a tax.  Which he justifies because the way the penalty looks to him suggests that “reasonable”  people (or philosopher kings) can, if they squint — and if they ignore the intent that turned the law into law in the first place, and turned a set of marks into a set of signs, into language — see a tax.  How that is “reasonable” is anyone’s guess:   we know in no uncertain terms that Obama and the Dems who passed the law didn’t devise the mandate as a tax (despite what they later argued); for one to conclude that it is reasonably possible to “read” a penalty as a tax,  therefore, what c0mes to count as “reasonable” must be redefined as “ignoring what we know to be true”.  And that seems antithetical to “reason.”

Roberts has chosen to see a tax where a penalty was intended — thereby rewriting the law and turning it into a new text, one which he intends, though he incoherently and disingenuously suggests that he is finding meaning in the text that can “reasonably” be ascribed to it.

Roberts justifies this change in terminology by noting that the amount of the penalty that would be levied would not be punitive – in fact the cost of paying the penalty would often be less than the cost of buying health insurance. And since the so-called penalty would not be burdensome, it’s not really penalizing behavior.


But the most egregious aspect of this decision, and one which an astounding number of commentators seem to be missing, is that the Chief Justice has massively expanded the use of the taxing power. Roberts asserts that “taxes that seek to influence conduct are nothing new.” He then rattles off a list of things that are taxed heavily in order to change behavior, including cigarettes. The problem with this is that people have to buy cigarettes in order to be taxed. This “tax” is applied to people who don’t make a purchase. In other words, the federal government is taxing non-activity. It is the same exact logic that the government used to justify the mandate under the commerce clause. All Roberts has done is shift the authority under the Constitution which justifies government intervention.

Then Roberts makes the astounding claim, also amazingly echoed approvingly in certain quarters, that “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS.” (emphasis mine)

I’m actually embarrassed for the Chief Justice here. Surely he is not as incapable of making a logical progression as this statement suggests he is. But let’s make this crystal clear. If you do not purchase health insurance, you will be penalized, err, “taxed.” If you fail to pay that tax at the end of the year, what do you suppose happens to you? Does the IRS send you a series of letters pleading with you to “please, pretty please, with a cherry on top, please pay your tax?” Do they put little frowny faces at the bottom of these letters? Does the Commissioner of the IRS stand outside your window with a boom box blaring “In Your Eyes” by Peter Gabriel, the rain pelting him as he cries out “Please, just pay this tax which, by the way, should in no way be construed as a penalty?”

Oh, that’s right, you go to jail. So you totally have the right to not buy health insurance, and there’s absolutely no punishment for failure to pay the tax. This assumes, of course, you always wanted to share a very small space with a drug dealer named Zeke. Just think of this as a government-funded vacation where you may, or may not, have discomfort walking towards the end of the vacation. You see – what a bargain!

The Chief Justice makes several more spurious claims. He notes that “tax incentives already promote, for example, purchasing homes and professional education.” But tax incentives are reductions in the level of taxation for making certain purchases. Your taxes are not increased when you decide to rent a house instead of purchase one.

Roberts observes that the “Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated in the Constitution.” Really? The income tax was made allowable only through the 16th Amendment, but it’s not a tax merely for existing. It’s a tax that only applies if you earn money – in other words, it’s a tax that applies only when you engage in the activity of earning your daily bread. It’s not a “mere existence” tax, and it’s certainly not a taxation of non-activity.

According to Article I of the Constitution, Congress has the ability to issue direct taxes apportioned among the several States, but the Chief Justice himself declares that this is not a direct tax.

Section 8 of Article I states:

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Again, I fail to see how that justifies taxation of non-activity. The idea that this kind of tax would have been countenanced by the same people (by and large) who fought the War of Independence is laughable on its face.

Attempts to sugarcoat this opinion are wrongheaded. In many ways, Roberts’ basing his decision on the tax power is worse than if he had relied on the Commerce Clause, for he has actually expanded the reach of the federal government in a way heretofore unseen. It’s true that Roberts and the four dissenters limit the reach of the commerce clause, but in reality they haven’t done much more than what the Rehnquist Court did in the mid-90s in the Lopez and Morrison cases in limiting the scope of the Commerce Clause. No new ground has been broken, and no old precedents were over-ridden. Much the same can be said with respect to the Medicaid ruling. On the other hand, the Chief Justice has broadened the taxing power so that it can now be applied to non-activity. Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.

I believe that the commenter cthemfly25 has it right in the comments on my previous post:

Congress can always use taxing authority to undermine the constitution.  And if a tax can be used to undermine the constitution and modulate and control social behavior, then the all powerful central government can use its unmitigated taxing power to regulate religion (there is no way applying Roberts’ logic that the religious mandate could be struck down), regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car),—–regulate from a central authority any human or civic activity under the rubric of “taxation”.

Perhaps the Anti-Federalist Brutus was right, after all, about the taxing power under the Constitution.

This power, exercised without limitation, will introduce itself into every comer of the city, and country — It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labour, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!


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10 Responses to The Chief Justice’s Ruling: A Gross Expansion of Federal Power

  • “Long story short, the federal government has more power today than it did yesterday. That is the most chilling aspect of this decision.”

    Is this necessarily a problem that Catholics have to deal with or just Republicans, Libertarians, etc?

    I am still waiting for Mr. McClarey to lead the way now that his desire became reality. I think Mr. McClarey overestimates the number or Catholics or Christians who care in the least about this ruling.

  • Thank you, Paul Z. As I just commented on Don’s post, you, he, Bonchamps and the others here at TAC are voices of sanity in an insane world.

  • Bar prep prevents me from reading the opinions in good conscience, but my guess is that the states made a major misstep in stating that it would obviously be permissible for Congress to tax everyone and then give a tax break for everyone who purchased insurance. By admitting that there was essentially another justification to do basically the same thing, the states opened themselves up for an interpretation that desperately was seeking a peg to save the bill. That doesn’t excuse Roberts though.

  • The state now has the power to control every aspect of human life in America.
    Resist and you will be taxed. Resist the tax and you will go to jail and lose
    all of your assets, including your income.

    The state can also demand all Catholics to renounce their Catholic faith or face financial
    ruin via a tax. The state can prohibit certain categories of human beings from procreation or face financial ruin via a tax.

    Further, the state can control the population of the U.S. through the use of abortion and euthanasia of ObamaCare.

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  • As I think more about this Supreme Court decision, I think it might be a good thing. I know for sure that God can bring good from it.
    The decision in fact focuses our attention on the truth of what we need to do to protect our liberties, defining more clearly what is meant and what is allowed by our allowing the government to tax.
    We always thought the government could tax– and thought that there were a few defined direct objects at the end of that sentence. Now we see to the contrary, the the authority we have given over to the government ican be construed not just to tax Something, income or property or something, but simply the authority to tax… .

    Roberts has just pointed out that the penalty acts in effect like a tax and could be construed that way, and what are we voters going to do about it?

    The courts should not be activist; the people should be activists. We look at what we need to do to protect our selves and our national interest, and do it. We define more closely what is given in that authority to tax. If the umpire continually calls a ball a strike, the batter is out, the umpire becomes meaningless and the game is over– so we need to insist on clarity concerning our constitution… enough of this mish mash about it being so old we don’t know what it means. We do too.

  • Unless government acknowledges the rational, immortal soul of the human being with its conscience, and especially the human being’s conscience, Obamacare is taxation without representation, enslavement as brute animals to a force of ‘superior” brute animals. The Planet of the Apes was especially poignant as the Statue of Liberty is seen submerged in the ocean.

  • It must be added that taxation is to “secure the blessings of Liberty to ourselves and our posterity” from the Preamble to the Constitution for The United States of America. Since our tax monies have been abused to exile The Supreme Sovereign Being, the Giver of LIfe and the Endower of all unalienable rights to man, FREEDOM, conscience, speech, peaceable assembly, our taxes are being pirated to kill our constitutional posterity in the womb, to inflict pornography, assault and battery on our virginity, innocence and civil rights to be secure in our foundational and human liberties, our taxes are being swindled into deforming the TRUTH, embracing perjury, and treason, it may not be said, cannot be said, that the monies extorted from conscientious citizens is called tax, but taxation without representation.

  • “so we need to insist on clarity concerning our constitution… enough of this mish mash about it being so old we don’t know what it means. We do too.”
    All future presidents must be given a literacy test, a comprehension test, and a reading test. Are public schools so bad that presidents and politicians can graduate without being able to read? Swearing an oath to uphold a Constitution the President cannot read demands school vouchers for private schools, until the public school start teaching reading, writing and arithmetic.

  • “The courts should not be activist”

    Exactly. That is why the ruling is horribly wrong. Four of the justices recognized that pretending ‘Obamacare’ was constitutional is an activist position. Roberts took an activist position.

Et Tu, Ioannes?

Thursday, June 28, AD 2012

The Supreme Court has ruled the individual mandate is constitutional as a tax. So the individual mandate is not a permissible use of the commerce clause; however, it is appropriate for Congress to levy a tax that essentially forces taxpayers to buy health insurance.

I will have to wait until I read the entire opinion before rendering judgment, but at first blush this looks like a terrible defeat for the rule of law.

By the way, it looks like it was a 5-4 decision. Kennedy voted with Scalia, Thomas and Alito. Let that sink in.

Correction: I am now reading that it was 6-3. Honestly, I’m reading a lot of conflicting reports, so I’ll refrain from further commentary until I read the opinions.

Correction to the Corrction: Nope, Kennedy, Alito, Thomas and Scalia would have decreed the entire act unconstitutional. It was John Roberts who saved Obamacare.

And now I offer my apologies to all those I scolded for critiquing the John Roberts selection. You were right. I’ve thus changed the post title.

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74 Responses to Et Tu, Ioannes?

  • Roberts bows to King Obama. Another sorry day for the late great USA

  • (Guest comment from Don’s wife Cathy:) Don’s just come down with a kidney stone; otherwise, I’m sure he’d be commenting at length on this.

  • Past time to vote out Congress and start over.

  • We need to win both houses by super-majorities and the presidency in order to repel Obamacare.

    I don’t see this happening.

    And the argument that we can stop funding of Obamacare is pointless, because once a democrat takes the executive branch and the legislative branch (which will happen over time), they’ll go back and fund it.

    It’s a bad day for American Freedom.

    That and Chief Justice Roberts is looking more like the equivalent of Bush I’s Souter. A liberal wolf in conservative sheepskin.

  • Excellent re-title of this post, execpt it should read:

    “Et tu, Ioannes?”

    Ioannes is the Latin (and Greek) for John.

    I am beyonmd livid, BUT we have to remember that God allows everything to happen for a reason, and Jesus Christ is STILL on the Throne and STILL in control.

    Obama cannot and will not win. He will one day stand before that Great White Throne of Justice as we all shall. He will answer for his crimes and he will NOT escape the rightful punishment due to him (as none of us shall escape should we remain in a state of unrepentant sin).

    Lord have mercy!
    Christ have mercy!
    Lord have mercy!

  • And the day started out so well….

  • Trying to wrap my mind around KENNEDY being solid on this.

  • ACA: Taxation Without Regulation.

    If Congress can say you can be taxed for not buying health care, then they can say you may be taxed for not buying broccoli.

  • Excellent re-title of this post, execpt it should read:

    “Et tu, Ioannes?”

    So let it be written, so let it be done.

    We need to win both houses by super-majorities and the presidency in order to repel Obamacare.

    Well it’s a good thing we’ve got a nominee who can really lead the charge on the awfulness of an insurance mandate.

    Oh. Wait.

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  • If this doesn’t put the nail in the coffin of the “you must vote GOP because of the importance of Supreme Court nominations” meme, nothing will. The appointment of John “Roe is settled law, and I do pro bono work for the homosex lobby” Roberts should have been enough in itself; but really, can there be any reasonable doubters now?

  • Roberts (via FoxNews:) “The Affordable Care Act is constitutional in part and unconstitutional in part The individual mandate cannot be upheld as an exercise of Congress’s power under the Commerce Clause,” Roberts wrote. “That Clause authorizes Congress to regulate interstate commerce, not to order individuals to engage it. In this case, however, it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance [empahsis mine]. Such legislation is within Congress’s power to tax.”

    So, just being unfairly rich isn’t bad enough anymore? Now, you can’t be unfairly rich and unfairly independent?

    They can’t make me buy an electric car that doesn’t work, but they can tax me at any given rate (which the Secretary shall determine at a later date) for NOT buying one.

    Great. I believe that gun and ammo sales will begin to increase soon.

    Ruger: RGR on NYSE.
    Smith and Wesson: SWHC on NASDAQ.
    Taurus Brazilian: SAO-FJTA4.

  • WK Aiken,

    Is that a gremlin or cat you are using as your avatar?

    /trying desperately to forget that John “Souter” Roberts is very young and will be on the Supreme Court for a good 40 years.

  • I feel like I just got punched in the gut….. really, really hard…..

  • So Obamacare now becomes the new litmus test for nominees. Only those who would agree to overturn Roe and Obamacare get nominated.

    Unbelievable. This day shall live in infamy.

  • Defeat for the rule of law? This was a great victory for limiting the scope of the Commerce Clause. Finally, a limit! Roberts just needs to learn how to read a statute and we will be all set.

  • The avatar is a photoshopped rabbit (eyes) who is objecting vociferously to having its teeth brushed. Ironically, it does well represent the emotional state of most right-thinking Americans today.

    I do not know why the website grabbed onto it from among the (literally) hundreds of graphic images I have on my computer. Perhaps I used it as a past logon avatar.

  • This was a great victory for limiting the scope of the Commerce Clause.

    Indeed, as I read through his opinion now, this would be one of the great Supreme Court decisions of all-time if Roberts had stopped on page thirty. Alas, he continues.

    Unfortunately, Roberts’ decisions to apply the taxing power to the individual mandate may be an even more absurd application than relying on the commerce clause. I’ll post on the Roberts’ decision in a little bit, I hope.

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  • This is a parody I wrote a few years ago.

    OHHHHHBaamaaa, Ohhhhhbbbbbbammmmaaa

    (sung to the tune of Ritichie Valens Oh Donna)

    We have a president, Obama is his name. Since January, he’s been goin’ insane. Oh I loathe his ways, but with Obama this is how it’s going to be.

    Ohhbaama, Ohhbaama, Ohhbaama,

    Turnin’ health care into welfare, he’ll make us all sick, it’s a part of his scheme, a socialist trick.
    Though we loathe his plan, but Obama wants to force it to be.

    Ohhbaama, Ohhbaama, Ohhbaama,

    He hates the military, this is clearly true. he prefers Code Pink to the red, white, and blue. He loathes this land, Obama this doesn’t have to be.

    Ohhbaama, Ohhbaama, Ohhbaama,

  • What can we do about it now?

  • What can we do about it now?

    According to the smart set, we now vote for the guy who implemented the same exact thing in his home state.

  • “What can we do about it now?”

    Put your head between your legs, lift your head up and kiss your sweet ass goodbye.

  • I will never comply! We have been stabbed in the back by Chief Justice “Bart Stupak” John Roberts! Sadly, I’ll probably end up in prison over this. I will never give my money for abortion!!! There will be no redress from this. The entire republic has been fatally undermined. I do not envision an electoral remedy. I am cleaning my shootin’ irons.

  • I haven’t really been praying about this in particular– thinking about it but not praying. I will pray more. I will give to the Becket fund. Would like to go to Courthouse steps but alas Even if we had a many people in Washington as they do on Jan. 22, will they pay attention? I will vote__________. II hope the repub convention speaks loud and clear to this issue. I hope Rubio etal take a look at what justice Kennedy saw.

  • The Roberts court is the lasting legacy of “conservative” support for George W. Bush. Now of course we simply MUST vote for Romney, because gosh, we can’t let the Left control the Supreme Court.

    Unless something happens to completely re-orient American conservatism to be actually, you know, conservative, there will no longer be a country worth conserving.

  • Arizona got trashed so why is this a big surprise? The fix was in when Kagan and Sotomayor got in. The bishops have zero chance of winning against the Obama juggernaut. “Women’s rights” will trump “religious liberty.” Time to re-read 1984.

  • From facebook:
    Todd Brophy posted in Hot Air Free Speech Zone
    Todd Brophy 9:38am Jun 28
    OK……………. I feel much better about this now. The States can opt out of the Medicare boondoggle. This reaffirms the 10th Amendment and States rights. This law cannot be supported by the Commerce Clause argument. The Federal Government, under this precedent, cannot force you to buy anything. The personal mandate is a tax. If you refuse to pay it, there is no mechanism to force payment. This makes the law a sham. If the mandate is a tax, it may be repealed by reconciliation. This means we need 51 votes in the Senate, not 60. Roberts is perhaps a genius and he is telling us, you make think you lost, you won big, now vote Obama out and secure your future.

    View Post on Facebook · Edit Email Settings · Reply to this email to add a comment.

    Anybody with better legal kungfu than me (ie, most any adult over 30) got a clue?

  • Don, praying that you get well so soon. For your own comfort and so you can get it taken care of before Obamacare fully kicks in and you find yourself in “hospice” due to this malady disease which would be too costly to treat.

  • “(Guest comment from Don’s wife Cathy:) Don’s just come down with a kidney stone; otherwise, I’m sure he’d be commenting at length on this.”

    Good thing for Don Obamacare hasn’t gone into effect yet.

  • “That and Chief Justice Roberts is looking more like the equivalent of Bush I’s Souter. A liberal wolf in conservative sheepskin.”

    Somehow this brings the image of Roberts unzipping himself only to reveal he is actually David Souter and says, “And you thought I retired…. hehehehehe.

  • The Federal Government, under this precedent, cannot force you to buy anything. The personal mandate is a tax. If you refuse to pay it, there is no mechanism to force payment.

    I simply do not understand how people can make this argument. If you don’t pay your taxes you go to jail. It would certainly be interesting to see a person make a legal challenge when they file their taxes but leave off the portion that is dedicated to the individual mandate. Methinks they would be less than successful.

  • Kinda what I was thinking….

  • (Don’s wife Cathy again:) Thanks for the prayers & good wishes! We convinced our family doctor to open his office early so he could see Don & call in prescriptions for Flomax & paid meds to the pharmacy. (How willing would a physician be to provide that kind of above-and-beyond service under Obamacare?)

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  • I’ve been thinking, which is always dangerous, but it’s been a fairly crisis-free work day so there’s been time. Maybe all the crises are in WDC right now . . .

    Anyway, this excerpt from Herr Roberts keeps jumping up at me and shouting.

    ” . . . it is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.” Again, emphasis mine.

    No legal scholar am I, but this looks like SCOTUS has just made it Constitutional for Congress to tax a non-activity. Like division by zero, this makes such power infinite in scope. Regardless of whether it takes place acorss state lines, it is now possible for Congress to say “You are not [doing, buying, participating in] thing X, and therefore we shall tax you for this not doing of it.”

    Now, I also do not consider myself an alarmist, but how many steps is it between the power to tax for Not Doing Something, and This:

    “He also forced everyone, small and great, rich and poor, free and slave, to receive a mark on his right hand or on his forehead, so that no one could buy or sell unless he had the mark, which is the name of the beast or the number of his name.” Rev 13:16-17

    You want to be exempt from all the various taxes incurred by not doing things? Well, here. Just put this on yourself someplace obvious, just so we can keep track . . .

  • No legal scholar am I, but this looks like SCOTUS has just made it Constitutional for Congress to tax a non-activity.

    Bingo. Though 4/5 of the opinion is based on solid constitutional arguments, this one passage turns the decision into an utter abomination.

  • Catherine A. McClarey says:
    Thursday, June 28, 2012 A.D. at 9:20am
    (Guest comment from Don’s wife Cathy:) Don’s just come down with a kidney stone; otherwise, I’m sure he’d be commenting at length on this.”
    Catherine: To purge kidney stones, boil parsley, bunches of parsley and consume the water. After about two weeks, the kidney stone will be passed. My mom was told to do this and it worked for her saving her from surgery. Sorry you are ill, Donald. Many prayers, in Latin and in English. Parsley is an organic deodorant good for halitosis, body order and other things. Happy kidneys to you.


    This Supreme Court decision can ultimately be used to implement forced family planning similar to China’s.

  • W.K. Aiken: Obama had rolled tanks into the street in a show of force.

  • Ah, the kidney stone. It’s said that imperfect contrition is sufficient for a sacramental confession – that is, a fear of the pains of hell. One little kidney stone and you’ll spend the rest of your life with a strong incentive to holiness.

  • In 923 Executive Orders, Obama has declared martial law and given as though he had the authority to order the Supreme Court around, the unauthorized power to enforce his 923 and all Executive Orders for the past fifteen years. These orders include assigning every piece of free land and waterway as well as all pieces of private property to himself. Obama has already made the law to take all private property as his own, he just needs a cover like Obamacare to set the leemings running. Saul Alinsky would be proud. Let Our Lady of Victories hold FREEDOM from despots, dictators and Obama. Let FREEDOM be granted to the unborn, and the Person of God in the public sqaure.

  • Mary: It will come to that. I remember Father Larry Richards saying only 2 years ago that he saw the end in about 4 years. Father Larry’s a pretty firey guy, but he’s also almost always spot on.

  • Get well soon, Don.

  • This is one ugly, senseless, malignant opinion on so many levels. The majority opinion is unreadable, or not necessary to read, in part because you know what to expect from the lefties. But Robert’s legal construction to side with the lefties is so bad, so absurd that it literally shreads the constitution. At least now there is no pretense of having a constitution limiting the powers of a central government.

    The dissent is real simple, eloquent and straight forward. The dissent points out, citing Madison, that taxing authority is limited to the purposes of the federal government as enumerated in the Constitution. Makes sense right? Otherwise, you can tax for that which is unconstitutional. So Roberts is part of the majority which held the law unconstitutional under the Commerce Clause—-you actually have a majority holding on this point. How then does Roberts go with the lefties, who hold the constitution in disdain, and find that the taxing provision of the Orwellian “Affordable Health Care Act” is permissible when he otherwise holds that congress did not have power under the commerce clause to enact it.

    Unlike the lefties, I find Roberts’ legal constuct to be dangerous. Congress can always use taxing authority to undermine the constitution. And if a tax can be used to undermine the constitution and modulate and control social behavior, then the all powerful central government can use its unmitigated taxing power to regulate religion (there is no way applying Roberts’ logic that the religious mandate could be struck down), regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car),—–regulate from a central authority any human or civic activity under the rubric of “taxation”.

    This is an unspeakably dangerous precedent and a super highway to serfdom. If you hear a pundit say this will mobilize the base blah blah blah….ignore him. The danger is that as precedent any congress, and for sure any leftist president and congress has now been given unbridled powers. It’s not just bad for now, it’s bad for the future of this country.

  • “regulate home schooling or private schooling (“taxed” for not teaching homosexual curriculum), regulate the size of families (taxed for having more than two kids), regulate food or beverage consumption (taxed based on calorie intake), regulate fuel consumption (“taxed” for excessive fuel consumption), regulate choice of consumer goods such as vehicles (“taxed” for not purchasing a “green” car) . . .”

    Regulate the dispensation of contraceptives, sterilization and abortions on demand (taxed for not providing these things.) The left has been wanting to get its hands on the Church’s money for decades, and now it has the tools.

    Euthanasia is next.

    I just finshed “Sons of Cain.” While no Clancy novel, the underlying theme is crystalline and fighteningly real. The dogmatic narrative of Chapter 37 is the most clear and pointed explanation of the current political landscape I have ever read.

  • WK Aiken mentioned the book, “Sons of Cain”, which obviously I must now buy ad read. A review at Amazon says:

    “An ancient group of twelve unspeakably powerful men are prepared to implement mass suicide in the United States. Already in control of the Congress and the Presidency, all that they lack is the Supreme Court. The only thing standing between these SONS OF CAIN and the lives of the Court is a small group of dedicated warriors. Wealthy ex SEAL, Nick Rieper, and his dozen, Knights of Longinus, may be the most deadly strike force alive. The have pledged their lives, their fortunes and their honor to battle international Satanism. Battle is joined as they engage the Cainites and their demon leader, Namon, in mortal combat. They stand alone as the only force alive with the knowledge, the skill and the faith to prevent a crime that will change America… forever.”

    Sadly, Satan has been in control of SCOTUS for a very long time indeed, at least since Roe v Wade, and perhaps since the Dred Scott decision of 1857.

  • Hope you will feel better soon, Don.
    Have heard good things about blueberries (to add to Mary’s idea) from someone who could understand the discomfort, but this day is different … .
    My father warned me that I may live to see the loaf of bread I might have, if I were wise enough to stop shopping for inedible things, be why I got killed by some ‘starving’ mob.
    No exec. order to help with chaos from unknown right and wrong.

  • What we have witnessed today is something akin to the ascendancy of the NAZI’s to power in Germany. It was an evil turning point for Germany and the whole of Europe, the same here. We are on an unalterable path to destruction, and we are dragging the rest of the world down with us.

  • “What we have witnessed today is something akin to the ascendancy of the NAZI’s to power in Germany”

    You are absolutely right Tom. This is as momentous and dreadful as that event.

  • Let’s all sing together.

  • Alphatron, our country has taken a step that cannot be retraced. The momentum of evil is at a self-generating pace. I think we will not see the defeat of this evil until there has been much, much bloodshed.

  • Alphatron, our country has taken a step that cannot be retraced.

    Well, there’s always the “amend the constitution” thing to limit the Fed’s ability to tax.

  • Foxfier, well that would work only with an electorate that couldn’t possibly have elected the current POTUS. I don’t see any realistic solution outside of civil war.

  • Between the fraud, the protest no-votes and the disappointment that they still have bills, O might be a fluke.

    We’ve been in worse states. Giving up is giving in.

  • Don, Hope you feel better soon!


    This Supreme Court decision can ultimately be used to implement forced family planning similar to China’s.

    I agree that this is a lousy decision, but in a sense this is what is already being done, but in reverse. Due to the child tax credit, I pay $5000 less in taxes because I have five kids. Now, I think that’s a perfectly fair way to make up for the fact that parents are performing a valuable service to the state and absorbing a lot of social costs, but the anti-kid folks flip this around and complain that the government is charging them extra taxes for not having had kids.

    While there’s a psychological difference between taxing people for not doing something and giving people a tax credit for doing something, the incentive isn’t hugely different. (Where I think the ruling really stinks is that is basically makes up this gloss, the law clearly wasn’t written as a tax in the traditional sense, it was written to force people to buy health insurance.)

  • Thanks for the good wishes. I am now functional again. Full post to follow on the decision.

  • This is the equivalent of a “Dhimi” tax.
    Obama’s a muslim isn’t he?

    Great to hear you’re feeling better, Don.

  • “While there’s a psychological difference between taxing people for not doing something and giving people a tax credit for doing something, the incentive isn’t hugely different. ”

    I think I would disagree. A $1000 per kid tax credit is not going to affect my family decision-making, the same way that a mortgage interest deduction is not going to affect my home purchase decisions. I’m either ready for such steps or I’m not. Lowering my taxes a little because I do something I was going to do anyway is icing on the cake; in choosing not to do these things, I do not spend what those who get the credit do, and ulitmately I get to choose because I have my reasons: I don’t want to be a father or I don’t want the responsibility of home ownership. So the math is a wash and I still make my own decisions.

    However, a $1,000 tax on not requiring my kids to attend the State-mandated classes that all schools must teach on how there is no sin, all sexuality is fine and our Friend the State is our sole benefactor will have me howling. That’s a hypothetical, to be sure, but it’s not outlandish when one considers what’s already being promulgated in the indoctrination halls. The point is that I have no choice here. I have to do one of three painful things: betray my moral constitution, pay money I can’t afford or become a prisoner of the State. Forcing me into behaviors I object to on all levels by means of extortion is every kind of evil.

    This doesn’t even touch the aspect of how the State can now tax the Church into oblivion by charging her for the continued ability to obey her conscience.

    The difference is more than psychological, methinks.

  • Sometimes I just feel so defeated, but then the thought came to me: didn’t Our Lord say that when I am weak, is when He is strong? That means we must let go and trust Him completely because no matter how dark things appear, and it will get worse, He’s ultimately in control and will bring about an eventual purification. My prayer is: “Almighty God, Merciful Father, please restore us to your grace, rebuild us in your image, let America fulfill her destiny – the reason you called her into being. We ask this through Jesus Christ, your Son, Our Lord. Amen. Our Lady of America, pray for us!”

    Don, for kidney stones, I’ve used Chanca Piedra. It’s a herbal formula from South America that can be purchased in a Health Food Store. You put about 5-10 drops in an 8oz glass of water, twice a day and it takes away the pain and breaks up the stone so it can pass. I hope you feel better soon – I know what you’re going through!

  • According to Roberts’ logic (which, again, I want to emphasize, I don’t agree with) in order for the “tax” argument to work rather than the “penalty” argument, the tax has to be lower than the cost of the behavior avoided. Thus, there could only be a tax for not sending your kid to public sex ed classes if the tax was lower than the cost of the class — which if it’s a public school would be $0.

    Look, I agree that it’s a ridiculous piece of reasoning, I just don’t think it leaves us notably more open to tyranny than we were before. This isn’t going to “turn us into China”, it’s just a lousy decision. And hopefully one that we can overturn come the fall by kicking Obama out of office.

  • Agreed. Some of you need to get a grip.

    We need to win both houses by super-majorities and the presidency in order to repel Obamacare.

    No. We need for a Republican majority in the U.S. Senate to have the sense to get rid of rancid parliamentary rules, among them the abuse of holds and the filibuster. Of course, they won’t.

  • I don’t think Romney would be effective in overturning Obamatax. One of his economic advisers is Greg Mankiw, an economics professor at Harvard. Mosey on over and take a look ( at how similar Mankiw’s logic was back in 2007 to this Court’s and the very close similarity to Romney’s Health Care Plan in Massachusetts.

    I was in need of medical care in Sweden during a visit in the early 80s and was lucky to be able to avail myself of a free medical clinic. Certainly no frills and comfy upholstered chairs in the packed waiting room, but the medical care seemed to be adequate for my needs. Our populace won’t like the downgrade of facilities and the long wait if it truly comes to that here, but I think we should be more concerned and focused with religious freedom at this point.

  • PM Hope you will feel better soon, Don.
    Have heard good things about blueberries (to add to Mary’s idea) from someone who could understand the discomfort, but this day is different … . Blueberries and cranberries aid in the removal of e-coli that adheres to the kidneys like barnacles. The kidney stone is an aggregate of uric acid, which may be reduced to particles like sand and passed, by sonic waves, while the patient sits in a specially prepared bath of water. The continued use of parsely, blueberries and cranberries are more enjoyable than the bath. Celery reduces the uric acid in the joints called gout. I am sure you are appraised of all this but I had to say it. I am sorry you are sick.

  • W.K. Aiken. I see Father Larry Richards on Living Right with Dr. Ray Guarendi, a show on EWTN. Prayer always gives us more time, if we ask for it. The good will die with the bad. May it not come to that.

  • DarwinCatholic:

    “While there’s a psychological difference between taxing people for not doing something and giving people a tax credit for doing something, the incentive isn’t hugely different.”

    Actually, I see a huge difference. When a tax credit is given, it serves to reduce the taxes one owes. The child tax credit has been written to give people money if their tax liability is reduced to less than zero. I have eight children, and so I turn around and use it to pay the very regressive taxes that exist in my state. At any rate, the cost of that subsidy is spread over the entire population, and to future generations through the issuance of federal debt. No one person is on the hook for it. Furthermore, by the monetization of our national debt, the recipient also ends up paying for it through higher prices that result from the weakening of our currency. There are also tax credits for a number of other things such as electric vehicles. The government says, “you pay less and we might kick in a little extra.” I disagree with this on principal. The government shouldn’t be cutting me a check for my children. It’s insulting.

    When an activity is taxed, however, that individual bears the full brunt of it. It’s not spread out among the rest of the population. If the government decides to tax someone $50,000 for not using birth control, that individual had better cough up the cash or their wages will be garnished, their assets seized, and they could potentially end up in jail if it’s judged to be tax evasion. If they decide to give a tax credit for up to 2 children, and tax someone $100,000 for each extra child after the second, it’s the same. Pay up, or else. This is actually how they do it in China. They call it the “social maintenance fee.” This article at explains how it works.

    It states “The fine for having extra children is known as the “social maintenance fee”. Mr He estimates the government has collected over 2 trillion yuan ($314 billion) in such fees since 1980. Failure to pay means the second “black” child cannot obtain a household-registration document, or hukou, which brings with it basic rights such as education. The amount of the fine varies from place to place. A husband and wife in Shanghai will each pay 110,000 yuan ($17,300), three times the city’s average annual post-tax income, for a second child. The fine increases with income. The rich can shell out millions.”

    This sounds strikingly similar to enforcement of the individual mandate for health insurance.

  • Would you describe an annual levy on uncultivated land as a tax or a penalty?

  • Well… As the smoke clears I would like to share mho.

    0.01: If the supreme court had said it was unvalid, the left would have blamed it on the partishanship of the court. Every liberal, and independant would think that they are the victim because partisans impede “progress”. The gloating on the right would be a powerful force of encouragement for these leftists to do everything they can to win this election. Now however, they think they’re flying high, when in reality the people who voted for him are now seeing the arrogance and the straightforward decieving they are submitted too. That creates much needed repugnance on the people who otherwise would have voted for him. The brilliancy of the Supreme Court assuring that people know it is a Tax, and the excerpt that refers to the fact that the Supreme Court is not there to help the ignorance of the voters who put such a leftist in power is a clear rallying call for people to wake up. An awakening that would not have happened in another way.

  • 0.02: what if in catholic prayer….it was revealed…. that the only thing that could stop his re-election was to make that decision, and word it so to give Romney the much needed ammunition. Look at how riled up people are now… that translates into votes. One has to welcome the overconfidence of the Democrats right now…

  • “Behold, I am sending you like sheep in the midst of wolves; so be shrewd as serpents and simple as doves.” Mt 10:16

  • Furthermore, when the contraception mandate lawsuits make their way to a supreme court decision, no one can say that it was made in deeply flawed partisan court. People’s eyes would awake to the fact that the only ones that can fight the liberal march to perdition will be the Catholic Church. All ye conservatives, join the only ones who can fight the gates of hell—and prevail!

SCOTUS Update: No Decision on PPACA, Most Provisions of AZ Immigration Law Struck Down (Updated)

Monday, June 25, AD 2012

The Supreme Court’s decision on the individual mandate will be delivered on Thursday. Based on who has authored opinions thus far this term, it is highly likely that the majority opinion will be delivered by Chief Justice Roberts. Even if that is the case, that does not mean that the individual mandate is doomed.

Today the Court did deliver an opinion on the Arizona immigration law, striking down three of the four major provisions. The Court permitted the “show your papers” provision, though the language suggests that it must be applied narrowly. Justice Kennedy delivered the opinion of the Court. The case was decided 5-3, with Justice Kagan recusing herself. Justices Alito, Scalia, and Thomas dissented. The opinions can be found here.

The Court also ruled that juvenile convicts cannot be subject to life in prison without parole. As Shannen Coffiin quipped, next “look for the Court to decide that juvenile offenders cannot be sent to their room without possibility of their supper.” The decision is here.

In another case, the Court ruled that its Citizens United decision applies to a Montana state law.

All in all, today’s decisions remind us that, no matter how the Court rules on the individual mandate, the Court is still a bloody mess.

I hope to have further analysis of the Arizona case later today.

Update: Reading through the opinions now in the Arizona case, and I just want to note that Alito agreed with the majority in declaring Section 3 of the AZ law (which forbids the “willful failure to complete or carry an alien registration document”) to be preempted by federal law. Both Thomas and Scalia would have upheld all four sections of the law.

Update 2: And the fig leaf that the Court gave to the state of Arizona proved to be of little use:

The Obama administration said Monday it is suspending existing agreements with Arizona police over enforcement of federal immigration laws, and said it has issued a directive telling federal authorities to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.

Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport.

Shorter headline should be, “Obama to Arizona: Drop Dead.”


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3 Responses to SCOTUS Update: No Decision on PPACA, Most Provisions of AZ Immigration Law Struck Down (Updated)

  • “Obama to Arizona: Drop Dead.”

    Obama to all U S citizens–“Drop Dead.”

  • Getting desperate?
    The more he uses executive orders, the more despotic he becomes, the sooner he will be OUT.
    Can he be indicted for continuing to fail to carry out the law of the land and contradict the Constitution?

  • “Obama to Arizona: Drop Dead.”

    Obama to all U S citizens–”Drop Dead.”

    Isn’t that the point of Planned Parenthood and all that is the Democratic Party?

The Left Suddenly Uncomfortable with Concept of Judicial Review

Wednesday, April 4, AD 2012

Don has covered President Obama’s not too subtle threat to the Court that it not dare strike down all or even part of Obamacare.  Yesterday he somewhat toned down his remarks, but still managed to step in it.

At an appearance this afternoon, a reporter asked Obama a question following up on yesterday’s comments: “Mr. President, you said yesterday that it would be ‘unprecedented’ for a Supreme Court to overturn laws passed by an elected Congress. But that is exactly what the court’s done during its entire existence. If the court were to overturn the individual mandate, what would you do, or propose to do, for the 30 million people who wouldn’t have health care after that ruling?”

Obama’s answer to the question was that he expects to win in court, and “as a consequence, we’re not spending a whole bunch of time planning for contingencies.” He went on to talk at some length about the “human element”–that is, people who would supposedly suffer in the absence of ObamaCare. Message: Obama cares, though not enough to spend “a whole bunch of time planning for contingencies.”

But the most interesting part of his answer was the beginning, in which he tried to walk back, or at least clarify, his statement from yesterday. He spoke slowly, with long pauses, giving the sense that he was speaking with great thought and precision: “Well, first of all, let me be very specific. Um [pause], we have not seen a court overturn [pause] a [pause] law that was passed [pause] by Congress on [pause] a [pause] economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned [pause] at least since Lochner,right? So we’re going back to the ’30s, pre-New Deal.”

As James Taranto points out, this response is wrong on multiple levels.  The case that Obama cites in fact pre-dates the New Deal by a good thirty year.  Second, the full title of the case – Lochner vs. New York – tells us that this was a case involving state law, not federal legislation.  As Taranto further explains, there have been plenty of Supreme Court cases in which the high court struck down state laws, some dealing with economic matters.  And there of course have been plenty of cases where the Court has in fact declared federal statutes unconstitutional.  In fact two cases in the late 90s – US v. Lopez and US v. Morrison – directly implicated the commerce clause, and in both cases the Court rendered a 5-4 decision overturning acts of Congress which relied upon the commerce clause for their justification.

But other than that, I guess Obama was spot on.

The broader issue, other than Obama’s seeming ignorance of constitutional law, is that the left has suddenly decided that they don’t much care for this concept of judicial review.

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36 Responses to The Left Suddenly Uncomfortable with Concept of Judicial Review

  • Much of the Left is going through a collective melt down that is a pure joy to behold. They really did buy into the malarkey that Obama was going to be FDR II. Now that he has turned out to be, on his good days, Jimmy Carter II, they are left to rant against the Supreme Court to attempt to save the miserable ObamaCare, the sole accomplishment of the Obama administration, unless they consider an accomplishment the amassing in three years of the amount of debt it took the Bush administration eight years to run up.

  • I rarely disagree with Don (or Paul for that matter), but my take on Obama’s commentary differs. I don’t think he is registering any discomfort with the concept of judicial review. He is simply claiming that the Court should be deferential to the legislature rather than activist in its own understanding of its role. And he is pointing out that this is a conservative principle that should be embraced by a conservative Court, implying that to do otherwise would be hypocrisy. Of course, the real hypocrisy rests with Obama et al who normally have no problem with judicial activism trumping state or federal legislation that they find disagreeable.

    I think the claims that the administration is somehow suggesting that an adverse ruling by the Court would be invalid or illegitimate are over the top and largely just grandstanding attempts to score rhetorical points. When he suggests that the Court would be over-stepping its powers to strike down the mandate Obama is saying exactly the same thing that we conservative said, and quite correctly, with respect to the Court’s decision in Lawrence. We were making a claim on the merits, as is he. No one is suggesting that the Court is without the legal power to render a decision with which many will disagree and honestly believe is wrong and therefore an inappropriate exercise of authority.

    With respect to judicial activism, this case presents a clash of two conservative principles. First, courts should be uphold laws even if they disagree with them, as long as they are constitutional. In other words, courts should not confuse their policy preferences with constitutional boundaries. Second, courts should respect the fact that the Constitution allocates only limited powers to the federal government, with those unallocated (including general police powers) resting with the states, subject to the Bill of Rights. Opponents of Obamacare are relying on the second principle to trump the first. Obama and other proponents are citing the first principle as a tactic to convince the Court and the American public that the mandate is constitutional, even from a conservative perspective — nothing out of bounds about that really.

    Finally, I don’t think that Obama’s inference of hypocrisy misses the mark completely. The mandate issue is not an easy one. On the one hand, plainly it is an attempt to regulate interstate commerce. But doing so by requiring people to purchase a product whether they want to or not was almost certainly beyond the comprehension of the Framers and also without precedent. But nor is their precedent to the contrary. As odious as this legislation is to me, I do not consider its constitutionality an easy question. just because the Framers may not have envisioned an expansive federal government does not mean they didn’t give us the architecture to allow for it.

    Obama is a terrible President for a host of reasons. We hardly need to manufacture any phony ones — and I think this one really is phony.

  • Perhaps it’s not a direct refutation of the concept of judicial review (though in the case of Dowd, she is certainly implying as much). What Obama is doing is casting doubt on the legitimacy of the Court’s decision, and I suspect we’ll see a lot more of this in various corners on the left over the coming months. I do honestly think that his original comments were made in attempt to sway the Court. Plan B is to convince the public that the Court is usurping its legitimate authority.

    Do I put it beyond Obama to try and make an end-run around the Court? No. At least, there is greater than zero chance that he would try and pull an Andrew Jackson. I’m not saying it’s likely, but sadly there is a chance.

    As odious as this legislation is to me, I do not consider its constitutionality an easy question.

    I do, but we’ll have to agree to disagree on that question.

    We hardly need to manufacture any phony ones — and I think this one really is phony.

    I’m not sure it’s phony to point out that Obama is attempting – as usual – to demagogue an issue in order to cover his ass.

  • Obama’s minions are taking up the cudgels in support of his bullying of the Court. David R. Dow, Cullen Professor at the University of Houston Law Center, calls for the impeachment of Justices who vote against ObamaCare if they strike down ObamaCare.

    What makes this hilarious is that Dow wrote a book called America’s Prophets: How Judicial Activism Makes America Great.

    Mike, I have a huge amount of respect for you, as you know, but there is nothing phony about this issue. Obama knew precisely what he was doing when he picked this fight with the Court. This may well become the major issue this year, after the economy.

  • In 2008, it was “Hope and Change!”

    In 2012, it’s “Obey me!”

    They don’t know how to think. They only know what to think.


    Plus, clueless Prof. Dow ain’t too smart. He apparently confused which SCOTUS impeachee he was ranting over.

    From an Instapundit commenter.

    “He’s not even writing about the right justice.

    “Samuel Chase is the justice who was impeached in 1805. Salmon Chase was the chief justice appointed by Abraham Lincoln in 1864.”

  • If they can make you buy health insurance, what else can they make you buy or make you do, or . . . ?

    The New York Sun: “Ex Parte Obama”

    “It’s been a long time since we’ve heard a presidential demarche as outrageous as President Obama’s warning to the Supreme Court not to overturn Obamacare. T he president made the remarks at a press conference with the leaders of Mexico and Canada. It was an attack on the court’s standing and even its integrity in a backhanded way that is typically Obamanian. For starters the president expressed confidence that the Court would “not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” . . .

    “It is outrageous enough that the president’s protest was inaccurate. What in the world is he talking about when he asserts the law was passed by “a strong majority of a democratically elected Congress”? T he Patient Protection and Affordable Health Care Act barely squeaked through the Congress. In the Senate it escaped a filibuster by but a hair. T he vote was so tight in the house — 219 to 212 — that the leadership went through byzantine maneuvers to get the measure to the president’s desk. No Republicans voted for it when it came up in the House, and the drive to repeal the measure began the day after Mr. Obama signed the measure.

    “It is the aspersions the President cast on the Supreme Court, though, that take the cake. We speak of the libel about the court being an “unelected group of people” who might “somehow overturn a duly constituted and passed law.” This libel was dealt with more than two centuries ago in the newspaper column known as 78 Federalist and written by Alexander Hamilton.”

  • For the record, Dowd is an idiot shill. Who cares what she thinks. Dow is also a shill, if not an idiot. He, like many college profs, doesn’t have a bone of academic integrity in him. It may be that these fools are doing Obama’s bidding, but I don’t think one can fairly tease that from the words that Obama has actually spoken. Obama is not attacking judicial review — he is asserting that his legislation is constitutional if considered under a conservative lens. It is not a silly argument, even if hypocritical. Moreover, while Obama failed to mention Lopez and Morrison those cases really don’t help opponents of Obamacare aside from the fact that they stand for the proposition that the commerce clause is not a blank check.

    Finally, regarding impeachment of judges for rendering disagreeable decisions, Dow’s position is silly beyond measure. The mandate question is unprecedented and the commerce clauses reach in that context cannot be easily discerned from the words. Unlike Paul, I can see merit in both arguments. Roe and progeny, however, not so. The Court just fabricated law to suit its policy preferences and in so doing truly did act outside the scope of its power. But even the most conservative jurists did not call for impeachment or governmental disobedience of the decision, although the case for such would at least be tenable. Professors like Dow are whores.

  • “Professors like Dow are whores.”

    Now that we agree on Mike! 🙂

  • Was the DOMA subject to “executive” judicial review when the DOJ, I believe, as ordered/requested by Mr. Obama publicly announced that it would no longer defend that piece of legislation passed by both houses of congress or was that merely an act in contempt of congress, which is ok when the executive branch has “issues” with legislation but is not ok when the, constituionally mandated, judicial branch has problems of its own with legislation it is required to review?

    Why has this man not been removed from office? Oops, I forgot, he is demagogue
    and they control the senate.

  • Speaking of lousy law professors, how bad must Obama have been?

  • Pinky, I can only imagine. The guy thinks Lochner was a commerce clause case involving the scope of Congress’s commerce clause powers. Yikes. What a dope.

  • Well, I certainly didn’t mean any disrespect. And I’m sure he’s an excellent law professor, when he’s in his comfort zone. But apparently making precise public statements about the most basic elements of Constitutional law is outside that zone. See, I’m not a lawyer, so I would’ve thought that ability was important. That shows how little us non-lawyers really understand.

  • Gee, where was Maureen Dowd after Roe V. Wade?


  • Rush suspects that Obama is playing dumb, to some extent, and is playing to the lowest common denominator. I suspect there is something to that. That said, yeesh, I pity any future lawyers trapped in a classroom with him.

  • Late in commenting. Just my typical hell fire and brimstone. I don’t expect there to be any justice on this earth.

    Every single one of us mortal human beings are going to be subject to Judicial Review. We will on that Great and Terrible Day be judged by the Supreme Justice Himself, and that judgment will be based on our deeds. Those who today call the murder of the unborn the right to choose, and the filth of homosexual sodomy civil rights will stand before the Great White Throne with no excuse, facing eye ball to eye ball the Almighty Himself. May God have mercy on their souls, and on ours for no one is exempt. God, being perfect Love, is absolute Justice, and He will NOT let the murder of the unborn or the filth of homosexual sodomy go unavenged.

    Enter by the narrow gate; for wide is the gate and broad is the way that leads to destruction, and there are many who go in by it. Because narrow is the gate and difficult is the way which leads to life, and there are few who find it. Matthew 7:13-14

  • The Patient Protection and Affordable Healthcare Act. It’s name is tenuous. The words “protection” and “affordable” are vague and subject to changes over time, meaning to say that coverage of what for whom is not set in stone. Since the government has no money to pay for anything, the administrators of the insurance can change and eventually deny coverage. There’s an issue in Massachusetts with limiting the dental procedures of MassHealth. And, he’s talking about the people, ‘human element’, that would suffer without this – call it an etch a sketch act because, I think, it applies more to the 2700 pgs. of HHS Admin (and not Gov. Romney). Considering the way this administration cannot budget after years on the job, I doubt that it would happen with health insurance.

  • From what I understand, Obama was not a Law professor, just a lecturer.

    “Obama is attempting – as usual – to demagogue an issue in order to cover his ass.”

    Yes, that’s his M.O., but although Barry is certainly a gifted demagogue, how do you get people angry because a law they never liked or approved of in the first place has been struck down? Two years ago, when this monstrosity was forced through Congress, I recall libs pooh-poohing the polls which showed Obamacare was despised by a majority of Americans. The conventional wisdom among leftists was that although the dumb American public (so inferior to those progressive Europeans) would initially resist the change, Old Silver Tongue would explain the goodness and necessity of the law so eloquently that our hard hearts would melt and we’d all be foursquare behind Obamacare by the time 2012 rolled around. Well, here it is, election year, and most Americans still think Obamacare stinks on ice. That wasn’t in the Dem script.

    Demagoging the issue will certainly motivate the Dem base. But the rest of us, who didn’t like the law then and don’t like it now? It’ll be a very tough sell, she said with a smile on her face.

  • Does anyone else think it’s ridiculously funny when Leftists whine about priests in ages past getting paid 10% tax which actually went to feeding people whereas now people have to pay something like 50% tax to the government and you don’t know what the hell most of it is funding. As far as health insurance goes if we had a monastary near every town and city the poor man could get free health care from monks. As far as I can tell Obama is a sneaky bastard who can’t be trusted as president, he is inconsiderate of the supreme court simply because of his acutely obvious overconfidence in his statements.

  • Someone compiled a list of why Obama can’t run on his record. Any other “firsts”?

    • First President to apply for college aid as a foreign student, then deny he was a foreigner.

    • First President to have a social security number from a state he has never lived in.

    • First President to preside over a cut to the credit-rating of the United States

    • First President to violate the War Powers Act. .

    • First President to be held in contempt of court for illegally obstructing oil drilling in the Gulf of Mexico .

    • First President to defy a Federal Judge’s court order to cease implementing the Health Care Reform Law.

    • First President to require all Americans to purchase a product from a third party.

    • First President to spend a trillion dollars on ‘shovel-ready’ jobs when there was no such thing as ‘shovel-ready’ jobs.

    • First President to abrogate bankruptcy law to turn over control of companies to his union supporters.

    • First President to by-pass Congress and implement the Dream Act through executive fiat. .

    • First President to order a secret amnesty program that stopped the deportation of illegal immigrants across the U.S. , including those with criminal convictions.

    • First President to demand a company hand over $20 billion to one of his political appointees.

    • First President to terminate America ’s ability to put a man in space.

    • First President to have a law signed by an auto-pen without being present.

    • First President to arbitrarily declare an existing law unconstitutional and refuse to enforce it.

    • First President to threaten insurance companies if they publicly spoke out on the reasons for their rate increases.

    • First President to tell a major manufacturing company in which state it is allowed to locate a factory.

    • First President to file lawsuits against the states he swore an oath to protect (AZ, WI, OH, IN).

    • First President to withdraw an existing coal permit that had been properly issued years ago.

    • First President to fire an inspector general of Ameri-corps for catching one of his friends in a corruption case.

    • First President to appoint 45 czars to replace elected officials in his office. .

    • First President to golf 73 separate times in his first two and a half years in office, 90 to date.

    • First President to hide his medical, educational and travel records.

    • First President to win a Nobel Peace Prize for doing NOTHING to earn it.

    • First President to go on multiple global ‘apology tours’.

    • First President to go on 17 lavish vacations, including date nights and Wednesday evening White House parties for his friends; paid for by the taxpayer.

    • First President to have 22 personal servants (taxpayer funded) for his wife.

    • First President to keep a dog trainer on retainer for $102,000 a year at taxpayer expense.

    • First President to assets the Azan (Islamic call to worship) is the most beautiful sound on earth.

    • First President to take a 17 day vacation.

  • Dow, Dowd, Holder, Obama, et al are children of Satan. They do their father’s bidding.

    They were never on the side of truth.

    There is no truth in them.

    They do what is natural to them. They lie.

    Their father is the father of all lies.

  • I’m confused. So what’s the big deal? Obama says that Lochner was the last time that the court struck down a legislative measure. But conservatives are saying “Ha! That was only state legislation, not federal legislation!!”. What’s the point? Obama is not wrong about it – and you’re all agreeing with him: Lochner was struck down regardless if it’s state or federal.

  • What’s the point? Obama is not wrong about it – and you’re all agreeing with him: Lochner was struck down regardless if it’s state or federal.

    Let’s see:

    He was wrong about it being federal legislation.
    He was wrong about the time period.
    He was wrong about the Court not having struck down major federal legislation since the New Deal era.

    So he was wrong about every single element, but somehow he was right?

    And the state/federal difference is not some minor distinction.

  • Has anyone put together a list of decisions that the average liberal supports where the Court struck down federal law? Roe, Griswold, and that Texas sodomy law were all cases where the Court overturned state law, yielding results that liberals wanted. I can’t think of any federal examples though.

  • Pinky,

    Off the top of my head, I would guess New York v. Clinton, which struck down the line item veto.

  • Pinky raises a very important point. Libs favor an expansive understanding of various “rights” hidden deep inside the creases of the constitution. Because these rights almost always serve to limit police powers and because police powers generally rest with the states, Libs tend to favor activist judges vis-a-vis state legislation. Because libs disfavor economic liberty and instead favor sweeping regulation of commerce, they support an expansive understanding of federal power via the commerce clause.

  • Wrong about the time period? The New Deal was from 1933 to 1936.
    Lochner v New York was from 1905.
    Obama said that it was pre-New Deal.

  • I just found a .pdf from the Government Printing Office listing Congressional acts that the Supreme Court overturned. Pretty interesting stuff. Congress keeps violating the commerce clause, and keeps getting called out for it. I also noticed that the Supreme Court really likes protecting obscenity and anything that can loosely be called free speech (such as flag burning).

  • Student – He said ’30’s, pre-New Deal.

  • What law cannot Congress pass that would not be legit by the lib interpretations of the “commerce clause”?

    Plus, Student’s right.

    Obama is never in error.

    Whatever he says is correct because it supports the agenda.

    For all such sons of Satan, the truth is that which serves their purposes.

    Obama is never wrong. He is ever lying.

  • Hey, I’m not saying that Obama’s never wrong.
    I was just about to comment that Zummo proved me wrong.

  • Has anyone put together a list of decisions that the average liberal supports where the Court struck down federal law?

    There was also United States v. Eichman where the Supreme Court struck down a federal statute against desecration of the US flag.

    Just to agree with Mike Petrik: when liberals fund expansive federal programs with tax dollars, it is difficult to show standing as a plantiff to bring suit.

  • Thanks Joe Green for listing many of Obama’s presidental actions to date. The list gives me pause on this Holy Saturday. The impulse to drop to my knees and implore God’s Mercy upon this nation whose leadership is so corrupt and the hearts of the citizens so ignorant and apathetic is great. Many are like sheep without a Shepherd; unable to recognize His Voice which beckons them to follow Truth and to receive life in abundance. Pontificating about the interior motives of the Presidents’ heart is speculation and generally a useless waste of energy.

  • I’m not law savvy…. but what is the big deal with the Commerce Clause and why do people feel that the courts should not strike down legislation when it pertains to the commerce clause? I get what commerce is, but what is it that makes it such a big deal for courts to strike down laws that fall under that banner of Commerce Clause.

    I’m liberal, but if Obamacare is wrong then it’s wrong. I’ve spoke to friends who are also liberal and I’ll ask “why is it wrong for the courts to strike down Obamacare?” and I just get the response “because it falls under the Commerce Clause”. Then I will ask “what about the Commerce Clause prevents legislation related to that clause from being stuck down by a court” and the response will be “Courts just shouldn’t do that.”

    It makes no flippin’ sense to me. Please help

  • Student,
    Our constitution grants Congress only limited powers, and each law Congress enacts must come within the ambit of those powers. The constitution grants Congress to power to regulate commerce among the states. The question is whether Obamacare (particularly the mandate) comes within the ambit of that power or is outside it. If the former, then the legislation is within Congress’s power to enact and the Court should uphold it; if the latter, then the legislation is outside of Congress’s power and the Court should strike it down.

  • Thank you for that answer, Mike.

    So then if it would be the former the courts do indeed have no right to strike down that type of legislation.

  • Yes, exactly. What the Court must do is discern whether the power to regulate commerce among the states inludes the power to require citizens to purchase health insurance. If it concludes that it does, then it should uphold the law. The question is not an easy one in my view. While the constitution does not generally limit *state* legislative powers outside the Bill of Rights (which is why the Massachusetts insurance mandate is almost certainly constititional), there must be a warrant for Congressional legislation. Congress’s commerce clause power has been construed broadly by federal courts, but it is not without limit. The idea that this power can be used to require each citizen to purchase a product he may not want would be almost certainly regarded as unthinkable by the Framers; yet, the language employed in the commerce clause seems broad on its face, and just because the Framers may not have intended to grant Congress such sweeping power does not mean that it did not do so nonetheless. Words can have meaning, and therefore effect, outside their intent. Nonetheless, critics have a powerful point in noting that such a power to compel an affirmative act dramatically alters our historic understanding between the relationship between our supposedly limited federal government and its individual citizens. While it is that alteration that supplies the disturbing subtext, the precise legal question many be more mundane, such as does the power to regulate interstate commerce include the power to require a person to engage in commerce who wishes not to. This is interesting stuff and reasonable people can come out differently in my view, though I realize that most of my fellow conservative commentators disagree with me on that.

Hollow Victories

Wednesday, March 28, AD 2012

There is some excitement that oral arguments are going well for opponents of Obamacare.  Though oral arguments are not perfectly indicative of how the Supreme Court will vote in the end, there is some cause for guarded optimism.  That being said, even if the Court completely strikes down Obamacare, it will be something of a hollow victory.

Don’t get me wrong.  There is no other correct course of action for the Court to take than to strike down the individual mandate and thus effectively kill Obamacare.  It is one of those remarkable monstrosities that happens to be both bad policy and unconstitutional.  The problem is that something this monumental is essentially being decided on the whims of a single Justice.  How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?

I don’t mean to be flip, but it feels like we’ve taken a very wrong turn somewhere along the line. 

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15 Responses to Hollow Victories

  • For those that support Romney, this election is about nothing other than putting an –R in the White House.

    Winning isn’t an end in itself. It is a means to an end. That’s precisely the point of the Supreme Court example.

    Reality is not always a pleasant thing to contemplate. But part of being conservative, I think, is a willingness to face up to reality even when it’s not pleasant. One may not like the prospect of having to choose between Romney and Obama in November, but that’s reality. Calvin Coolidge isn’t going to be on the ballot.

  • “How did we reach the point where our basic liberties come down to what Anthony Kennedy may have had for breakfast one day?”

    The weeping you hear is from the Founding Fathers in the next world.

  • Winning isn’t an end in itself. It is a means to an end. That’s precisely the point of the Supreme Court example.

    Thus demonstrating why you, and so many other Romney supporters, continue to miss the point.

  • “Calvin Coolidge isn’t going to be on the ballot.”

    Yeah, but the Mormon Richard Nixon probably will be. I’ll vote for him in preference to Obama, but other than Romney not being Obama, I’ll be hanged if I can think of anything else Romney has in his favor from a conservative point of view.

  • The Supremes don’t necessarily have the “last say.” If struck down, in part or in its entirety, Obamacare could still come back in another form as devised by Obama and a complaisant Congress. Also, given that hundreds of entities have been granted exemptions to the law, that language could be broadened to include certain individuals or small businesses, thus debunking the false notion that “everyone” must buy health care or face a stiff penalty. In short, the lawyers and politicians will find a way toward a “compromise” that will defuse the issue before November.

  • 3 points:

    (1) “… happens to be both bad policy and unconstitutional …”
    But you repeat yourself. If it’s unconstitutional, it is by definition, bad policy. 🙂

    (2) Whatever the faults of Anthony Kennedy (and you know my opinion on the man, and I am, to put it mildly, not a fan), he has throughout his career on the Court been fairly solid on 10th Amendment issues. Not that his swing-vote squishiness doesn’t give me some pause, but I’m not as worried about how he will vote on this issue as I will be when the Court is inevitably called upon to define same-sex “marriage” as a so-called “fundamental right”. I’m actually slightly more concerned how Roberts and Alito will vote.

    (3) And THIS is the REAL implication for the upcoming election. At this juncture, the judicial nomination argument is one of the key talking points Romney’s supporters are using to try to sway those like me who are going to be voting 3rd party this fall. Let’s suppose that it’s Roberts and/or Alito (in addition to or instead of Kennedy) that joins the 4 liberals to uphold ObamaCare. Suddenly, the “But we HAVE to vote for Romney to get conservative Justices” argument becomes moot. If either or both of the two most recent Supreme Court Justices that were appointed by a conservative GOP president with approval by big GOP majorities in the Senate can’t be counted on to vote against the constitutionality of ObamaCare, then the GOP will, and SHOULD, lose the judicial nomination argument in its favor for all eternity.

  • “then the GOP will, and SHOULD, lose the judicial nomination argument in its favor for all eternity.”

    Why Jay? Roberts and Alito from all intents appeared to be solid conservative nominees, and thus far they have voted that way. If they go rogue now we should hand over to the Democrats the Supreme Court for all eternity? That does not make any sense to me.

  • You make some very necessary points Mr. Zummo. I would simply add that the election of Barrack Obama is a reflection of us, our society, our governance, and our fondness for dependence (as opposed to liberty). The greater concern is whether we have reached the tip point. While many argue politics, to his credit Obama has advanced the statist agenda across the board.

  • Come on, “blackmail”? I haven’t heard anything like that. I mean, by those standards, someone could say that your raising doubt about Romney’s SCOTUS nominees is an attempt to blackmail Romney supporters into voting for Santorum. But that’d be nonsense, because you’re not blackmailing anyone; you’re trying to present your preferred candidate in the best possible light, which is a perfectly reasonable thing to do. Remember the time-honored truth that the Paulbots never seem to recall, that antagonism is rarely persuasive.

  • Pinky,

    I have the strike-through there and I thought that indicated that I used the word for humorous, exaggerated effect.

  • Yeah, I know, I’m just getting a bad taste in my mouth from all this. The article and some comments tended to lump all Romney supporters together as the enemy, a voting bloc composed entirely of RINO’s.

    Years back, volunteering for a campaign, I remember being told to never alienate anyone, because even if the voter wasn’t supporting your candidate, he could be on the fence about a half-dozen other races further down the ticket. It ticks me off to see assumptions of bad faith being made by supporters of all four candidates against supporters of their opponents. And to top it off, there’s near-complete agreement about the issues. Most Republican primary voters only disagree about which candidate would best promote a pro-life, low-tax, internationally secure agenda. They weight issues differently, and make different calculations about effectiveness, experience, and electability, but they agree on 90+% of the platform.

    Every party goes through this in the primaries, and by November I hope that heated words spoken in March will be forgotten. I’m just worried.

  • Don, the point I’m making is that if the GOP-nominated Justices can’t be counted on to strike down a monstrosity like ObamaCare, then the argument that we just HAVE to vote for Republicans because of the Supreme Court will no longer prove sufficient to justify voting for just any Republican, especially one like Mitt Romney.

    I mean, seriously. If even a majority of GOP nominees can’t be counted on when it comes to the REALLY BIG issues like abortion and ObamaCare, then there’s really not much left to justify conservative voters continuing to do what we’ve been doing.

  • I understand your argument Jay, but it still does not make any sense to me. We are going to have a Supreme Court and its rulings are going to have a vast impact on our lives. I see no reason to hand it over to the Democrats forever. Overall I have found the Republican justices appointed since Reagan far more congenial to my views than those appointed by the Democrats, to say the least. A Souter and a Kennedy are arguments for better screening of appointees, not an argument for having someone like Obama in the White House forever to keep making appointees like Breyer and Ginsburg until the rulings are always 9-0 in favor of treating the Constitution like toilet paper.

  • Don, I concede that a the GOP nominees are, on the whole, better than Democrat nominated judges. That’s not debateable. But, for the better part of 3 decades now, Supreme Court Justices have been trotted out as one of the, if not THE, main reasons to vote for the Republican nominee, regardless of whether that Republican nominee was one that was otherwise suitable.

    ALL I’m saying is that, yes, a Mitt Romney is likely, on the margins, to nominate better judges than Barack Obama. BUT if those judges are unlikely to do things like overrule Roe or strike down ObamaCare, then the argument holds MUCH LESS weight, and becomes not as strong an argument for voting for Mitt Romney.

    So, in the situation in which we find ourselves – a likely nominee for President that is wholly unacceptable to me, the argument that we just HAVE to vote for him because he will nominate judges who will … do what? Overturn Roe? Strike down ObamaCare? Again, it is a lot less compelling argument on behalf of the GOP nominee when the judges nominated, while better than what we might expect from the Dems, can’t be counted on when it comes to the BIG issues that are most important to me.

    Now, once again, my argument is only pertinent if there is a defection from, say, Roberts and/or Alito to uphold Obamacare; but if none of the GOP-nominated Justices (apart from the squish Kennedy) votes to uphold ObamaCare, then the issue of judges will actually strengthen Romney’s hand: “See, if we had more Justices like Scalia, Thomas, Roberts, and Alito, we could stop even MORE of this kind of big-government nonsense.”

  • I disagree with Paul’s assessment of the Commerce Clause. Words matter, and the words used to assign to Congress the power to regulate interstate commerce can easily be understood to be very broad in their application. Just because the Framers did not envision (or presumably favor) such broad application, does not mean they didn’t create the architecture that allowed for it (even if they didn’t mean to!). It is not ridiculous to maintain that Congress has the power to regulate the health care component of our national economy by creating a mandatory insurance system, which is not to say that I think that is the better argument — actually I don’t.

    I do favor a mandated insurance system, but only at the state level. It is necessary to prevent the free rider system we have today, where thousands of people choose to go without insurance knowing that the government (i.e, the taxpayers) will pay for their necessary care. That said, such a mandated system should cover only truly necessary care that is sufficiently expensive to warrant risk sharing (i.e., insurance). Optional care and routine care that is not so expensive that it cannot be budgeted should not be covered by mandated insurance.

    Insurance has its place in health care, but its current role is not rational. It is a by-product of a tax system that encourages employers to compete for employees by providing unnecessarily rich coverage, which leads to serious inefficiencies. The user is two steps (employer and provider) removed from the payor. Accordingly, most people use health care services more aggressively because they do not bear the lion’s share of the cost of such services in any perceptible way. If we removed the tax favored status of health insurance, it would de-couple from employment thereby allowing a more robust and mature market to develop for individuals (just like property, casualty, and life insurance); families would then purchase insurance that rationally meets their needs, which in most cases would be affordable high deductible policies that cover any necessary catastrophic care.

    A federal (not state) insurance mandate may well be unconstitional, but it is not necessarily bad policy if (i) designed to prevent free riders and (i) limited in coverage appropriate to insurance. Obamacare is not remotely so limited. It goes in exactly the wrong direction by expanding the role of insurance rather than tailoring that role to its purpose.

It is Time to Get Rid of Most Campaign Finance Laws

Tuesday, February 21, AD 2012

One of the big items today is news that the Romney campaign is bleeding cash.  Considering his all out assault first on Newt Gingrich, and now Rick Santorum, this comes as no surprise.  Yet while Romney spends more in a day than Santorum spent through most of the campaign thus far (only a slight exaggeration, I think), Santorum continues continues to poll ahead of Romney nationally and is neck-and-neck in Romney’s home state.  Of course Romney still has plenty in reserve thanks largely to his Super PAC.  Even Newt Gingrich’s fledgling campaign is still alive thanks to the generosity of one supporter funding a pro-Newt Super PAC.

These Super PACs have come under fire.  They are the indirect result of the McCain-Feingold campaign finance law, a law which itself amended the Federal Election Campaign Act (FECA), a law meant to restrict the amount of money that individuals could donate to individual candidates.  FECA created a two-tiered structure that basically divided federal contributions into two categories: hard money and soft money.  Professional sports fans probably recognize the terms as related to soft and hard caps, and it’s really the same concept. Under FECA individuals could only contribute $1,000 to a candidate per election cycle.  Yet there were no restrictions placed on “soft money,” meaning contributions to party committees.  This was the original end-run around campaign finance law.  Under the Bipartisan Campaign Reform Act (BCRA), or McCain-Feingold, individual contribution maxes to candidates were raised, but soft money contributions were phased out.  This, in turn, gave rise to other organizations, mainly 527s, which were able to raise unlimited amounts of money to air issue advocacy ads against candidates.  These various organizations are not technically affiliated with any candidate, and it is a violation of campaign finance law for candidates to collaborate in any way with these groups.

So is it time for another set of reforms?  Indeed it is.  And the reform is simple: repeal all these ridiculous (and arguably unconstitutional) provisions, and allow individuals to contribute whatever amount of money they want directly to candidates.

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The Lemon Test Strikes Again!

Friday, January 13, AD 2012


Senior Federal District Judge Ronald Lagueux, a 1986 Reagan appointee, has ordered the Cranston High School in Cranston, Rhode Island to remove a mural, pictured above, depicting a school prayer.  The mural had been in the school since 1963.  The suit, as is usual in these modern iconoclastic cases, was brought by the American Civil Liberties Union on behalf of an atheist student and her father, Mark Ahlquist.  Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.  She doesn’t think much of the Catholic Church, is indeed a fallen away Catholic, and Cranston is 90% Catholic, so this suit was her way, actually I suspect more her father’s way, to poke a stick in the eye of local Catholics.  Go here to read the opinion.  Judge Lagueux’s decision is notable for its overall reliance on the Lemon test, and I will leave to Justice Scalia below to set forth my views of that court created doctrine.

In few areas of the law has the Constitution been more twisted and deformed than in the area of First Amendment allowance of religious expression in schools.  Justice Scalia gave a useful summary in 1993 in the Lamb’s Chapel v. Moriches Union Free School District case:

As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening thelittle children and school attorneys of Center Moriches Union Free School District.

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18 Responses to The Lemon Test Strikes Again!

  • Scalia’s opinion here is one of my favorites, along with his dissent in Casey. The sarcasm just drips, but it’s well-merited. It’s hard to come up with a more asinine legal doctrine than the Lemon Test. That it survives to this day is both astounding and revolting.

  • It is a pity they did not take down the Heavenly Father two words, replaccew it with a suggestion that the viewer take a moment of silence. That would have ruled out the “Christian” Prayer distraction. It was also sad to see the pro-prayer people be so insulting and judgmental to the anti-prayer crowd but delightful to see the pro-prayer people rebuke them. The whole argument from Lemon was sad, I thought the “Supremes” had abondoned that test outright as I followed the First Amendment dicussions. The separate Church/State argument is being thrown up in Europe now a lot. There is a brewing cultural war in the UK as the PM called for more ethcs in public life recently, echoing one presumes the talks B XV1 gave on the occcasion of his State visit in 2010 . In asking for a return to same, HH repeated that call in an extremely well-crafted talk in his more recent State visit to Germany which was very well received by the Bundestag. So tragic that the simple intent of the Founders was to avoid an Established Church as Mr Jefferson had to deal with first in Virginia. Now an anti-religion former Catholic female, now a high schooler, wins a case for the ACLU to promote her anti-religion agenda iN a case that was supposedly decided to prevent a pro-faith bias by the school. The judge also spelled “mantle” as mantel, easy error to make, in my view not as egregious as his “Lemon” decision, pun intended!

  • The establishment clause should not even apply to local schools. There is no way that one can justify the incorporation of the establishment clause using “due process” or “privileges and immunities.”

  • I thought the principle was that since the achool board and teachers were “goverment” they were “establishing” religion. It makes no sense as the Founders named the CREATOR in the Preamble and the coins have in God we Trust. That one CA Federal Court decided against the Pledge- since it has UNDER GOD in it, for grade schools, but it never went anywhere as the father did not have custody of his daughter who brought the case.

  • Actually, I wouldn’t want my Catholic children saying this “power of positive thinking” kind of prayer. We Catholics always pray “through Christ our Lord,” which this prayer does not. We Catholics pray “in the name of the Father and of the Son and of the Holy Spirit,” which this prayer does not. No disrespect intended to those of any other religion. I want my kids growing up to pray like Catholics pray. I don’t want the public school teaching them another way of praying.

  • “Actually, I wouldn’t want my Catholic children saying this “power of positive thinking” kind of prayer.”

    Then vote that way at local schoolboard elections. My problem is having Federal judges acting as “prayer police” in schools because of some sort of constitutional prohibition of prayers in public schools which simply does not exist from the text of the document. We started down this path of course largely because of the influence of Justice Hugo Black, an anti-Catholic bigot, who feared the influence of the Church.

  • Harold,

    I agree about praying in Jesus name and in the name of the Father, Son and Holy Spirit. Nevertheless, I find nothing wrong in the petitions raised to God our Father in this prayer. I wish I had those positive thinking characteristics and practiced them consistently and always. Sadly, I fail.

  • An interesting look at the Catholic Church and the US Supreme Court by Professor James Hitchcock:

  • Thats a very nice prayer, I wish it were hanging in my son’s school. I think I won’t comment on the father bringing this case, my blood pressure is raised enough.

  • Indeed Jasper. I have nothing but sympathy for the 16 year old girl who I doubt is mature enough to understand the issues involved.

  • When she is in front of God, as well as her father, they can point out the great work they did in getting a prayer off a school wall. Hopefully they will go on and on about how injurious it was for her to glance at it in the hall way. How she had a right not to look at it and deny all of the other children the any chance of seeing a prayer without any reference to God in it. How wishing good will among classmates is harmful and wanting to do your best and yet show grace when things don’t go your way is restricting and burdensome. Oh, how triumphant they were to have the court agree with them. Hopefully she is not showing too much glee as she walks the school hallway.

  • One presumes at age 16 “God is not finished with her yet” which is true for all of us at any age whether Catholic or atheist or agnostic. She may end up as many former abortionists do, get a profound conversion experience and become a First Aamendment lawyer and join in suits against the more expreme ACLU positions. That makes more sense to me than trying as so many of the pro-prayer people did, to question her standing before the Last Judgmen in their un-Christian defence of a prayer that was neutral and very positive, but was judged to be the establishment of a religion by mentioning Heavenly Father. As I recall, “GOD BLESS THIS HONOURABLE COURT” is a ritual at the Supreme Court itself. Wonder if a future Hugo Black will find that un-constitutional as well as the daily prayer in Congress and on and on.

  • Atheists are the only Americans that are allowed to use laws to advance their religious beliefs.

  • Jessica Ahlquist, the 16 year old atheist who brought the suit, has become an atheist celeb on atheist sites on the internet.

    I think we have an early candidate for TIME’s person of the year.

  • Any person who repudiates our founding principles set forth in The Declaration of Independence and our Constitution, repudiates his own unalienable civil rights. When one person is denied civil rights, all persons are denied civil rights. Therefore, the atheist, denying all unalienable rights endowed by our Creator, denies his own unalienable rights endowed by our CREATOR and has forfeit his legal standing in a court of law. Yes, a person is free to be an atheist, but the atheist is not free to deny any other person’s right to free expression of his response to the gift of Faith from God.

  • When an atheist says: “I AM an atheist”, the atheist uses God’s name: “I AM”, in vain and contradicts himself. Jesus said: “My Father gives testimony to me and my works give testimony to me.” two witnesses establish a judicial fact.

  • Clever try Mary de Voe but I do not think it applies. What does apply however is why and how does he or any atheist that he/she explain how anyone can say ” I am?”.Just how did I get to have “is-ness,” and from whence and is there an end to it here or later! Normal human beings in quiet moments and waking up at night and in sickness ask those questions. That is why we pray for those who have not experrienced God, they have found Him in different ways but not “seen” Him yet, that takes Faith, not intelligence and education by themselves.

14 Responses to Constitution, Shmonstitution

  • There are still otherwise very smart and knowledgeable people who continue to support the little antichrist. Some I know in my own field of nuclear energy. Yes, most in my particular field despise and loathe the obamination of desolation. But many (even most) of those who are bloggers insist on continuing to drink from the fountain of purple koolaide and for the life of me I cannot fathom why what would otherwise be intrinsically obvious to the caual observer (i.e., how the teflon-coated criminal is ruining the economy and the military) is rejected wholesale as some sort of right-wing paranoid propaganda. These are people who know 100 times what I know about nuclear engineering and physics (and I have been in the field 30+ years), but they are still in love with that godless man of sin and depravity even though his appointee to the chairmanship of the US NRC is about as ruinous towards the peaceful use of the atom as one can be. Oh, they complain without end about Chairman Jackzo’s anti-nuclear policies, but they worship the ground walked on by the man who appointed Jackzo to the Chairmanship. I just don’t “get” it. The hold Obama has on these people is demonic! What hope is there for our nation when otherwise rational and logical people are so beguiled by the wickedness and perversion that plagues our society?

  • This is not GOP “Obama Derangement Syndrome”, as the Obama-propaganda machine would have you believe.

    This is about stopping the corrupt regime.

    Dodd-Frank (both should be in prison) Act set up an unaccountable, hugely funded monster to fundamentally change the banking world.

    Under the Act the commissar of the Consumer Finance Protection Bureau is appointed (now without Senate advice/consent) who will set his own budget in the amount of 10% of “the combined earnings of the Federal Reserve System” in fiscal 2011. The Fed must transfer the funds without question, which is estimated at $400 million. Boss Cordray’s budget is not set by Congressional appropriation and cannot be reduced by anyone.

    The Fed can’t intervene in the Bureau’s functioning, “appoint, direct or remove any officer or employee” or “merge or consolidate the bureau . . . with any division or office of the Board of Governors or the Federal Reserve Banks.”

    And, what does the regime do with all the money? If the recent Countrywide discrimination settlement is any indication . . . give it to left-wing provocateurs.

    The MSM Obama propaganda machine will not report that the regime’s $335 million crisis discrimination crisis settlement with Countrywide Financial Corporation will not go to the ‘victims’ but to leftist groups not connected to the fabricated crisis.

  • T. Shaw & Paul Primavera,

    How about a gravatar for your comments?

    Go here:

  • I do not know how to create a “globally recognized avatar or graphical depiction.” But from the link you provided, perhaps I can find out. Question: why would an avatar or icon depiction be necessary? Is it for ease of recognizing authors of comments, or is there another reason? Curious.

  • It’s easy to set up.

    As for your question, it makes The American Catholic look soooo much cooler if everyone had gravatars!

    Yeah, it’s a marketing answer, but it’s our commenters that really make our blog, why not spiffy it up with a pic (gravatar).

  • Hmmmm….I went to the web site and followed the directions. I wonder if it worked or if I am the victim of my own operator error.

  • OK, tell me how to link my gravatar to entries here at TAC. Thanks.

  • There is a video guide if you need direction.

    It can take anywhere from a few seconds to a day (max) for the image to begin appearing. So let’s see what happens by this time tomorrow.

    (that or you could ask a family member or friend more knowledgeable for assistance).

  • It works!

    Good job Paul!

    Now if T. Shaw would do something about his gravatar. . .

  • Sgt. Rock might be deemed a terrorist, though….

  • Thanks, Tito and Donald.

    I had translated Cicero’s orations against Cataline when I was in high school during the Watergate scandal – political corruption hasn’t changed all that much in 2000 years. I love Cicero. Some people say he was bombastic and hypersensitive and sometimes caved in when confronted. Well, I guess I have those defects of character at times. But he did want the restoration of the Republic, and when he incurred Anthony’s wrath, the politicians did what all politicians do everywhere if they can get away with it. Fulvia, Anthony’s wife, is said to have taken his decapitated head and repeatedly puncture his dead tongue with some sort of hair pin because his oratory had so inflamed her. In this day and age of a President thumbing his nose at the Constitution, perhaps that is a fate which awaits us all who dare speak out against dictators.

    Again, I still love Cicero. Nothing has changed for me in 30+ years except for the deterioration of my abilities in Latin and Greek. 🙁

  • Tibi multas gratias, mi amice!

Activism! They Cried

Tuesday, December 14, AD 2010

The reaction to Judge Hanson’s ruling in Virginia v. Sebelius was predictable:  rejoicing on the right . . . not so much on the left.  A few people actually attempted to analyze the decision on a legal, rather than policy basis.  (Shocking!)

It’s also not surprising in the least to hear the talking point going out – like on the appropriately named Talking Points Memo blog linked above – that this demonstrates conservative hypocrisy with regards to judicial activism.  After all, don’t conservatives bemoan activist judges who overturn the will of democratic legislatures?  This would be a fair point if it actually captured the gist of conservative sentiment on judicial matters.

Happily for us all I wrote a post some two and a half years back detailing why I didn’t like the term judicial activism.  I’ll re-post most of it here.

Continue reading...

6 Responses to Activism! They Cried

  • Justice Thomas will buy it but it’s not clear that the others will. Justice Scalia concurred in Gonzales v. Raich which allowed the federal government to regulate non-economic intra-state activity if it frustrates the regulation of interstate commerce.

  • I guess we’ll see, but I disagree. It’s probably lining up as 4-4 from the start, and ultimately it will come down to what Justice Kennedy had for breakfast the morning he decides.

    As an aside, it’s a bit sad that the fate of our country so often winds up being decided by Anthony Kennedy. In that regard, I share Jeff Goldstein’s less than exuberant attitude this morning.

  • Great analysis Paul! How about judicial tyranny as a name replacement? I would call Judge Hanson’s ruling an act of Judicial constitutionalism which abides by the will of the people. Justice Kennedy is a centrist so it will be a close call, but ultimately the ruling will depend on the arguments by both sides.

  • For what it’s worth: I heard a lame stream media radio report call Judge Hanson a GOP judge.

    Is GOP a liberal swear word?

    Thank God for small mercies. They didn’t accuse the Judge of stealing money from impecunious, undocumented immigrants and penurious, single-parent families.

    Is the Supreme Court exempt from Obamacare? Congress is.

  • I don’t see Roberts getting five votes to “overturn the will of the people”. I can imagine one of those six-opinions in-part-concurring decisions that establishes no precedent and manages to cut a few paragraphs out of the legislation.

    Does the other side have a term for their approach, other than “living Constitution”?

  • I can see anything from 5-4 striking down the individual mandate to 8-1 upholding it. Attention has focused on Kennedy as the swing vote, but it’s easy to see Roberts, Alito, or even Scalia defecting.

    What killed the government in Lopez was that the government was asked to give an example of a law that would exceed Congress’ authority under their theory and weren’t able to do it. My understanding is that the government has so far been unable to give such an example in this case as well.

Constitutional Ignorance

Tuesday, October 19, AD 2010

I see that my co-blogger MJ Andrew has already posted about the Christine O’Donnell-Chris Coons debate, and I thank him as that saves me the trouble of having to sort through a whole bunch of links.

I disagree with him, though somewhat reservedly.  Having listened to the entire clip it does seem to me that O’Donnell is questioning whether the concept of the separation of Church and State is in the First Amendment, not the Establishment Clause.  There was some crosstalk at this point in the debate, and it appears to me that she’s just repeating her question with regards to the issue of separation.  It’s debatable, though, and a candidate should do a better job clearly establishing what she’s talking about in such a setting.

That being the case,  I was more intrigued by  Coons’s own response to the question.  While O’Donnell possibly made a gaffe – an unfortunate one if indeed it was a gaffe – Coons’s response is the more troubling aspect of this exchange.

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11 Responses to Constitutional Ignorance

  • I tend to agree with those who think the Establishment Clause does not mandate a strict separation of church and state, and I think Coons gets that bit wrong.

  • Coons believes that the Supreme Court is a perpetual Constitutional Convention which may amend the Constitution as it pleases, the text of the document be hanged.

  • I agree with you, but as MJ points out not knowing at least the gist of the 14th amendment is pretty bad.

  • “I agree with you, but as MJ points out not knowing at least the gist of the 14th amendment is pretty bad.”

    Michael, outside of attorneys who do criminal defense and constitutional law cases, I think many attorneys would have a hard time saying much about the 14th amendment, not to say anything of the Byzantine case law interpreting the amendment. Of course you law school sudents being force fed all of this put us practicing attorneys to shame in this area! 🙂

  • I think many attorneys would have a hard time saying much about the 14th amendment, not to say anything of the Byzantine case law interpreting the amendment.

    It’s true that after what SCOTUS has done to the poor amendment has rendered its meaning unintelligible to all but the wisest of men (obviously those being on the Court), I think knowing that 14th guarantees due process against state infringement and that this is the avenue of incorporation would be nice to know. After all, it’s the through the 14th that SCOTUS has brought its, er, unique modern approach to constitutional interpretation.

  • Substantive due process has been the gateway to practically every dubious Court decision of the past century plus.

  • Israel and Great Britain get along passably without a formally composed Constitution. It sometimes seems ours is just an excuse for our appellate judges to be officious nuisances.

  • I learn something new about the 14th Amendment every time some judge with an expansive view of his or her self worth puts pen to paper.

  • I knew the Constitution pretty well during Con Law class and just prior to taking the bar. After that, not so much. Although I do occassionaly peruse it when a particular issue comes up. God help anyone who has to rely upon my faulty memory.

  • My keyboard quotes marks are not working.

    Meanwhile, Cornell law prof William Jacobson comments: A literal reading of O’Donnell’s comments reflects that she was correct, but of course, the press and the blogosphere don’t want a literal reading, they want a living, breathing reading which comports with their preconceived notions.”

    And, Instapundit: The Constitution stands for things that are good. The things that we want are good. Therefore, the Constitution stands for what we want. QED. How can those dumb wingnuts (like ODonnell) not understand this simple logic?

  • Good catch on Coons – most people have missed it in the frenzy to attack or defend O’Donnell. Whatever one may think of O’Donnell’s views (and I agree with them – though I think she didn’t effectively advance her correct argument), Coons is clearly of that liberal mindset which holds to “if we like it, it’s Constitutional”. On his own ground, Coons is going to be fine – as long as he’s talking to ignorant MSMers or liberal who like the current status of Constitutional law, he’s going to look like a genius…put him in a room with anyone who actually holds that laws are meant to be obeyed, and he doesn’t come off so well.

    We’ll see if O’Donnell can actually do anything with this – Delaware may not be ready, yet, to ditch its liberal Ruling Class…but O’Donnell has dented it, and that’s good enough to go on.

Sharia Law and the U.S. Constitution

Friday, June 25, AD 2010

[Update I:  I have streamlined the following post to be easily readable to the average layman, but informative enough for a lawyer or law professor to learn a bit more on the similarities and differences between Sharia and U.S. Law]

Is Sharia compatible with the U.S. Constitution?

The simple answer is of course “no”.

But lets take a look at some aspects of Sharia Law and where it may or may not conflict with the U.S. Constitution.  (For disclosure I am not a lawyer nor a legal expert in Sharia or U.S. Law.)

First, what is Sharia?

Wikipedia states Sharia refers to the sacred law of Islam.  All Muslims believe Sharia is God’s law, but they have differences between themselves as to exactly what it entails.  Which will be difficult to discern what to apply when, but we’ll labor along for the sake of discussion.

In Western countries, where Muslim immigration is more recent, Muslim minorities have introduced Sharia family law, for use in their own disputes. Attempts to impose Sharia have been accompanied by controversy, violence, and even warfare (Second Sudanese Civil War).

The recent incidents at the Arab International Festival have reinforced the poor image of Sharia inside the United States and its incompatibility with American culture and law.

The following is a truncated version with a couple of modifications (eliminating repetitious ibids and links) of multiple Wikipedia entries [with my comments]:

Legal and Court Proceedings:

Wikipedia states that Sharia judicial proceedings have significant differences with other legal traditions, including those in both common law and civil law.

1. Sharia courts do not generally employ lawyers; plaintiffs and defendants represent themselves.

Continue reading...

14 Responses to Sharia Law and the U.S. Constitution

  • “Is Sharia compatible with the U.S. Constitution?”

    “The simple answer is of course “no”.”

    I agree 100%.

    Thank you for taking the time to write this most informative article on the differences between Sharia law and the Constitution or/and Civil Law within the U.S.

    Freedom which is one of America’s core principles is not compatible with Sharia Law.

  • This is “one nation, under God, indivisible with liberty and justice for all.”

    The motto is “e pluribus unum” not “e pluribus pluribus.”

    There is no liberty or justice under sharia, nor is there either under the yoke of Muhammedanism: the summation of evil and all heresies.

    The filthy pagans cannot charge or pay interest; so they have a sort of subterfuge that makes the loan/interest like a lease or installmant sale plan at a profit (not interest) over tte monthly to the seller. I had to try to twist that mare’s nest to fit US accounting and taxes. It was frustrating dealing with the morons.

  • Religion is never to be instituted in government. Not just Islam.

  • Juri,

    The U.S. Constitution is loaded with Christian idioms and language.

    Are you exhibiting some form of Christophobia?

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  • The article ‘Sharia Law and the U.S. Constitution’ misses three (3) very important points for Catholics:

    1. Islam is misclassified as a religion for a reason – Islam is a governmental system of ‘conquest and control’ that is both ‘expansionist and intolerant’.

    2. There is nothing missing in the Laws of the United States of America that needs to be fixed by so-called Sharia Law.

    3. The U.S. Constitution is a divinely-inspired work that speaks of a Republic (i.e. no monarchy) with God-given (i.e. no church) inalienable rights of the individual.

    In point one, Catholics should know the difference between a religion and a cult: A true religion revolves around a spiritual ‘deity’ (i.e. a one and only God); whereas a cult revolves around a human being or multiple pagan gods. To understand this better, one needs only compare the life and teachings of Jesus to the life and teachings of the founders (i.e. human beings) of other cults or religions. The Crusades were a reaction to Islamic aggression and expansion into the Holy Land.

    To point two, Catholics will be the first to remind others that in America, it is religion that is protected from government and not the other way around. It is ‘freedom of religion’ and not ‘freedom from religion’ that we are privileged to enjoy here. In Saudi Arabia, no Christian churches are allowed. All over the world, intolerance towards Christians often results in mass murder and destruction of churches. Christianity is the only true religion of peace.

    As for point three, Catholics need to take a stand between ‘one world governance’ (i.e. economic, religious and military globalism) and ‘American Sovereignty’. (i.e. as guaranteed to them in the U.S. Constitution and the Bill of Rights.) Catholics also need to be aware of the difference between a collective and mandated ‘social justice’, administered by a socialist government and the spiritually-correct ‘morality and generosity’ exemplified by Our Lord and Savior Jesus Christ.

    Last but not least, Catholics really need to educate themselves about the reason why the Constitution requires Presidents and Vice-Presidents of the United States to be ‘Natural Born Citizens’. (i.e born in the U.S. to parents that are both citizens, etc.) The reason for this is to avoid ‘divided loyalty’. John F. Kennedy, the first and only Catholic President was quite eloquent and clear about his loyalty to the people of the U.S. vs. the Pope. The current president has demonstrated his loyalties are divided between International Globalist Banking and Expansionist Global Islam. Somehow, he seems to have left the American people out of the equation.

    We need to pray for America as we’ve never prayed for her before. And may God bless and protect our Holy Catholic Church.

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  • This is a great short summary, thanks! These are details that most people don’t know.

    Numbers 7 & 8 could be greatly expounded upon. What I’ve heard/read somewhere is that the reason why many women never report rape is that if they cannot prove they were raped and yet in the course of the trial they “admit” to having sex they may be stoned for adultery under Sharia law.

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Sharia in Dearborn?

Thursday, June 24, AD 2010

Apparently the police acting to unconstitutionally arrest individuals attempting to hand out proselytizing literature to Muslims in Dearborn is not unusual according to this release from the Thomas More Law Center:

In what some have described as police enforcement of Sharia law at the annual Dearborn Arab International Festival, last Friday night Dearborn Police Officers arrested four Christian missionaries and illegally confiscated their video cameras which were recording the events surrounding their arrests.  The Thomas More Law Center, a public interest law firm based in Ann Arbor, Michigan, today announced it is representing all of the Christian missionaries.

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28 Responses to Sharia in Dearborn?

  • “Will we see more of this type of official misbehavior wherever Muslim immigrants become the majority…”


  • I don’t know. This sounds more like an attempt by the police to keep the peace.

    I’ve been at pro-life rallies where police have arrested pro-abortion activists who were handing out literature. It’s the same principle, make sure a heated situation doesn’t escalate.

    Given that the missionaries were targeting a large gathering of Muslims, this sounds like it was intended to provoke a reaction. I think it would have been different if they had been handing out literature during a normal day.

    I’m sympathetic to the message of the missionaries, but I don’t think the method is effective.

  • “I don’t know. This sounds more like an attempt by the police to keep the peace.

    I’ve been at pro-life rallies where police have arrested pro-abortion activists who were handing out literature. It’s the same principle, make sure a heated situation doesn’t escalate.”

    Such an action is unconstitutional. You can’t arrest people constitutionally for fear of violence from the targeted audience. That is called a “heckler’s veto” and has been condemned by the Supreme Court many times.

    This is not a murky area of the law. The Dearborn police knew that legally they could not arrest the missionaries but they did it anyway.

  • Such an action is unconstitutional.

    To be more clear, police in the case I described above did not make any arrests until the pro-abortion people had been warned several times to move across the street.

  • JohnH; I don’t think that affects the question of the constitutionality of the request. Why have the police the right to issue such directives if no laws are being broken? If they do so in order to “keep the peace,” and in doing that they attempt a “heckler’s veto,” then they are acting unconstitutionally.

    Not that our country is very big on members of the state or federal executive branches adhering to the constitution…

    My sense is that these sorts of arrests happen all the time, and I wouldn’t be surprised if these evangelists entered the festival precisely because they knew it would cause conflict. What is being sought here? A true evangelization or an opportunity to score points in the culture wars?

  • WJ

    I know examples of evangelicals doing this at Catholic events, being thrown out (and if they won’t go), being arrested. So you are correct — this kind of thing happens all the time, and yes, the evangelicals are looking for conflict.

  • An example where this happened, and where Protestants have played the martyr card for similar activities against Catholics, look no further than here:

    On Monday, Sept.2, a woman walked up to the booth and took some of our tracts. She proceeded to walk into out booth, throw the tracts on the ground and stood on them, blocking the posters. We asked her to stand outside the booth, as we had spent $250 for the booth. I even advised her to purchase a booth next year and call it “Former Catholics For Christ is a hate group” and to use all the information she had gathered in our booth. She refused to leave, stating that she had permission from the Stark County Fair Board to picket us. My sister went to the fair board office to find out if this was true. She had lied. They called security, but to our surprise, the security refused to ask her to leave the booth. They said she was exercising her free speech. Diane explained that the booth was not “free” and that we had purchased the space. We again asked that she be removed to the outside of our booth. The security guards refused. My husband asked, “Is it okay if I take our Jesus is the Only Way poster and stand in the Catholic booth down the isle.” The security guard threatened my husband with jail if he spoke again. Finally an officer in full uniform showed up. He argued with the lady for about 10 minutes until the Stark County board showed up and made her leave. She returned to the sheriff’s booth where she worked (“volunteered”). Many of the booths that witnessed the events came up and offered their support.

  • “My sense is that these sorts of arrests happen all the time, and I wouldn’t be surprised if these evangelists entered the festival precisely because they knew it would cause conflict. What is being sought here? A true evangelization or an opportunity to score points in the culture wars?”

    Considering the fact that three of the four missionaries are converts to Christianity from Islam, I rather suspect an opportunity for true evanagelization. In any case, the important point for me is that cops have no right to arrest individuals who are simply exercising their right of freedom of speech peacefully on public property.

  • By asking the Christian evangelists to move across the street, the intent of the police may not have been so much to deprive them of their right to distribute literature as to exercise a reasonable time, place and manner restriction on their right to assemble. Not sure if this is kosher though if the distribution violated no ordinances, etc. But probably very understandable. I suspect the charges will be related to refusing to comply with police instructions rather than distributing anything, and further suspect they’ll be dropped.

  • I suspect the charges will be related to refusing to comply with police instructions rather than distributing anything, and further suspect they’ll be dropped.


  • Henry K.,

    Remember this is an Arab International Festival, not a Muslim International Festival.

    Your straw man holds no water.

  • Tito:

    And the festival in Ohio was a public one… not a Catholic one…

  • Tito,

    if it is an Arab festival than perhaps the title of the post, which refernces sharia, should be edited

  • Nope. One of the key elements of Sharia is that proselytizing Muslims is not to be tolerated. The Dearborn police department seem to agree with that.

  • The Dearborn Chief of Police is a Muslim.

  • It is funny how my comment was deleted. But I will try one more time:

    the situation with the booth and the anti-catholic was at a city festival, not a Catholic one…

    [found the comment and restored it]

  • I don’t know what happened to your previous comment Karlson. This is my thread and I’ve approved each comment you’ve made.

  • Well, someone deleted it, perhaps before you saw it, Donald.

  • “Not sure if this is kosher”

    Actually, if we’re talking about Muslims the proper term would be “halal” — the dietary rules of Islam, which actually are similar to those of the Jewish faith in some respects (e.g. banning pork, requiring specific methods of slaughter).

    The event in question bills itself as an Arab International Festival. Now, haven’t some of us been making the point, in posts regarding Israel and the Palestinians, that NOT all Arabs are Muslims? Surely there are Christian Arabs (most likely Maronites or members of other Eastern Rite Churches) in Dearborn as well as Muslims. Do they participate in this festival? It would be nice to get their take on the situation.


  • Yes Elaine, Dearborn has very large Arab population and they are Muslim, Christian, and some rather secular. I’m not familiar with this festival but I’m quite sure it’s open to the general public and people of all faiths and ancestry attend. Dearborn has a very large and popular festival in the summer that many people from all over the region attend. I wouldn’t be surprised if these folks intend on distributing their literature then too. My guess is that if they do they will be sent away or locked up again.

  • It really doesn’t matter if the missionaries are ineffective or a little obnoxious, that’s not the point. The point is that this is America and people are allowed to hand pamphlets to you and say things to you about their beliefs. I’m always polite to the Baptists, Mormons, JWs and anti-corporate union petitioners when they come to my door. I don’t always take their stuff, but I don’t summon the police either. The union people usually need a shower unlike the Mormons, but hey, it takes all kinds.

    When I lived in Pittsburgh there were street preachers downtown and in Oakland. They were totally obnoxious, IMHO, but they were allowed to do their thing due to freedom of speech–they weren’t arrested. We have the freedom to make asses of ourselves. One guy was an ex-Catholic and he tried to engage me in conversation. He was itching for an argument, and I didn’t give him the satisfaction. But I didn’t get offended by him either. I’m just thankful that I don’t need the require the kind of meds that he should have been on. Even so, these people weren’t hurting anybody and more than the pigeons.

    These Muslims need to get used to America. It might be more to our advantage to pass out copies of the founding documents. Obviously it would be nice if they converted to Christianity, but most are too stubborn and brainwashed, not to mention scared, to even think about it.

  • These Muslims need to get used to America. It might be more to our advantage to pass out copies of the founding documents.

    The chief of police in Dearborn is behaving in a manner congruent with the default settings of the educational apparat in this country, which in turn is simpatico with the political class in Canada, Sweden, and the Netherlands, among other loci.

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  • JohnH says:
    Thursday, June 24, 2010 A.D. at 1:26 pm
    I don’t know. This sounds more like an attempt by the police to keep the peace.

    I’ve been at pro-life rallies where police have arrested pro-abortion activists who were handing out literature. It’s the same principle, make sure a heated situation doesn’t escalate.

    Given that the missionaries were targeting a large gathering of Muslims, this sounds like it was intended to provoke a reaction. I think it would have been different if they had been handing out literature during a normal day.

    I’m sympathetic to the message of the missionaries, but I don’t think the method is effective.
    Um, there’s a freedom of religion, but NO freedoms for abortion within ANY aspects of the Constitution, the Declaration, nor the Bill of Rights. So, for police to arrest someone for passing out PRO-abortion literature is perfectly within the province of law enforcement. Whereas, police have NO rights with respect to what someone does regarding religion and the free exercise thereof. PLEASE READ YOUR FOUNDING DOCUMENTS: Constitution, Bill of Rights, and Declaration of Independence before commenting on what you “think” is okay or not. Opinions are NOT valid in a court of popular opinion nor courts of law!

  • It appears to me that the police were very patient, my father raised me to obey the law and if the police asked me to leave the area then i better leave the area. If you hang around and argue you should expect to be arrested. Also the they stated they were across the street, apears to me they were right next to a ride at the event. Bottom line is they went their to get a rise out of the event and they got what they deserved.

  • The missionaries were aqcuitted back in September of the bogus breach of the peace charges: