After spending a couple of days almost physically ill with a kind of rage against the Obamamcare decision, I decided on a whim to see what Jerry Pournelle might have had to say about the whole thing. I read this, and really started a deep rethink on the whole thing.
In a nutshell, Will and Krauthammer and whoever else wants to chalk this up as a hidden victory that will in the future place any kind of judicially imposed limits on the power of Congress are absolutely wrong. And those, such as Levin, Limbaugh and most conservative blog commenters are absolutely right that Roberts recognized and judicially opened the door to a greatly increased Congressional power via using taxation as the new escape clause. What almost nobody has recognized, however, is that Roberts is the sole justice actually upholding the Constitution in any of this.
Consider the following dialog as a follow-on/rebuttal of this prior one (the prior one was written when I was still spitting nails).
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We The People: Chief Justice, help us, help us! Congress has passed a wicked law decreeing that "Three times a day citizens have to go to the nearest street corner, get on all fours, and bark like a dog! After this, they have to eat a Milk-Bone dog biscuit out of a special bowl. Then they're required to beg for another one! Milk-Bone dog biscuits build strong teeth and promote a shiny coat!"
Roberts: Okay. That's clearly unconstitutional but because there is a fine associated with it this falls under the general taxation power of Congress I will not strike down the law.
We The People: THIS IS AN OUTRAGE!!!! WHY ARE YOU FAILING TO UPHOLD THE CONSTITUTION, YOU TRAITOR?!?
Roberts: Look, you folks are going to have to decide: Do you really believe in what the Constitution says, or don't you?
We The People: We do!!
Roberts: Then let me ask you something: Where in the Constitution is the Judiciary given veto power over acts of the Legislature? Where in the Constitution is the Supreme Court given power as the final arbiter/guarantor of Constitutionality? Where in the Constitution does it say that all contentious political issues are to be ultimately decided by black-robed Philosopher Kings?
We The People: Marbury v. Madison?
Roberts: Marbury v. Madison is not in the Constitution. Look at Article III of the Constitution. This stuff simply isn't there. The idea that I should strike down and nullify laws passed by the Legislature is blatantly unconstitutional in and of itself. If you are willing to go against the Constitution via not acknowledging this, then how can you possibly complain when other unconstitutional things happen?
We The People: But not only did you not strike down the law, you also opened the door to even greater abuses of Congressional power via your cockamamie, cooked up, ridiculous doctrine that "if a tax is involved, Congress can do it"!
Roberts: I did not give Congress one iota more power than it already has. Legislative power is not the Judiciary's to bestow or withhold. After all: this country, its Constitution and its Judiciary and Executive were all called into being via legislative power. But I do agree with you on this: the idea that Congress can do whatever the hell it can make an excuse for is, in fact, horrifying, tyrannical and essentially unconstitutional.
We The People: Then why don't you DO something about it?!?
Roberts: If Congress over the last century has become a lawless, tyrannical crime syndicate--whose only difference from the Mafia is that the Mafia has a more honest self-image--well then: who permitted it? Who begged for it? Who re-elected these people year after year, decade after decade? Who shrugged and perhaps even cheered when unconstitutional power grab after unconstitutional power grab was inflicted over the decades (Social Security, Medicare, The Department of Education, etc, etc). Who enthusiastically fell for fiscally impossible con after fiscally impossible con? In short, who drank the Kool-Aid?
We The People: We did.
Roberts: So whose responsibility is it to clean house and bring the tyrants back in line with their Constitutional limits?
We The People: Us?
Roberts: You're beginning to get the picture. If what I have done has frightened you even more that government is an unstoppable, unaccountable monster, then good for you. It is about time that We The People sobered up and started exercising his sovereignty over this monster. Mark it well: There is no Daddy in a black robe who is going to rescue you from yourselves. I cannot promise you success, but I do tell you this: it is entirely up to you. And no one else. Godspeed.
7 comments:
Exactly.
All that stuff we were taught in high school civics class about 3 co-equal branches of government was false. And it's false in at least two ways:
1) it's not how things have been working for at least 60 years, and probably longer;
2) even if it were how things were working, it's not the system laid out in the Constitution.
For starters, not only does Constitution not give the Supreme Court the authority to declare on Constitutionality, but all Federal Courts, including the SC, are creatures of Congress.
Ilion, please see my latest post.
The Constitution does not give _any_ of the Federal government authority to declare on Constitutionality, for the simple reason that such a thing would be a blatant conflict of interest.
Now, let's see, if nothing in the Constitution gives the federal gov't this authority, and if all unenumerated powers are reserved to the States and to the people, then...?
What is needed at some point is a state (I'm looking at you, Texas) to simply say: "We find this law [whatever is the "last straw"] to be unconstitutional and therefore it is null and void in this state. Any attempt at federal enforcement will be met with force."
The States created the Constitution and as such, they are the final judge as to whether the federal gov't is living up to it.
It amazes me that we've all internalized a form of slavery, such that we cannot see what should be blindingly obvious.
He most definitely did NOT do the right thing. Yes, Marbury v. Madison was activism, and it did not give the judiciary a right that never existed. That is true, though one may argue on practicality that it doesn't matter any more that this right was not created because it exists now, and Roberts' failure to use it in this instance does not mean that he is not going to turn around and use it on the next 500 cases. I am sure this is the reality. But I won't even argue that point. What I will argue is that this was, in itself, judicial activism. Roberts created an entirely new power for Congress to exploit, one that is in steep contrast to the direct apportionment or 16th Amendment (if one recognizes it in the face of the original body of the Constitution, but I digress) taxing powers that the government was bound to, at least somewhat, before this ruling. You commend Roberts for restraint, and I agree on the Commerce Clause issue. But on taxation, the cure is far worse than the ailment. This opens the door to Congress taxing us on having or not having anything, ad perpetuam, for mere fact that we live in the borders of the U.S. While he did a bit of good, he then turned to a great evil. The power to tax is the power to destroy. The left has shown that they have no qualms about economic destruction at home, and the right has shown that they have no qualms about economic destruction both at home and abroad.
While we are on the topic of Constitution, I would remind you that no Founding Father but Hamilton saw any value in democracy. Democracy was easily labeled by all of those men, and as far back as Plato, as tyranny. Being beholden to 51% of the population is extremely dangerous. They knew this, and they knew democracy is the natural tendency of dumb men, which most people are - especially today. This is why we have the Constitution to begin with; They knew that when 51% (it could be far less today, since almost no one votes) of the population wanted to take away the rights of any minority, there would be no problem for the majority to take these rights. What we have here last week with Obamacare being upheld on new case law, is that a new power for the majority to act in opposition to any minority was created. It undermines not only the taxing powers of the Constitution, but the entire Constitution. For what Roberts "saved" via the Commerce Clause strike-down, he has utterly ruined the purpose of the entire document. So much so, that the Commerce Clause may now become the backup loophole for any legislation that Congress knows in unconstitutional but wants enacted anyway. The door has been opened - nay, the entire wall removed - on the taxing power. There is no reason for any further justification by Congress. Which brings around the concept of democracy again - the slavery that is the "greater will of the people." By enshrining the power solely in who is elected, Roberts has effectively made us our defining restraining principle one of men and elections, not laws. This is displayed very clearly by the exceptions Obama has given in this law to his various friends and financial sponsors - including the Congress itself. Democracy will end this country if we let it brew long enough, and it is far and away the biggest hurdle that anyone who believes government should not lord over us like a totalitarian god needs be concerned with. The populous will never feel safe enough, have enough of that which they realize they can vote themselves, or think themselves morally humble enough to admit that maybe they do not know the best laws that should bind everyone.Men are too capricious and competitive for such things. Accordingly, democracy is a train wreck. Check out Frederic Bastiat sometime for fuller explanations of the economics and governmentalism that democracy yields.
There is no possible way that a 2000-page federal law is Constitutional, per federalism or the purpose of the document in the first place. Conservatives who think so are gravely mistaken.
Actually, my current thinking on this topic is as follows:
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Question: If the Constitution is a contract, then who are the parties to the contract?
Up until recently, I would have answered “The states and the Federal government”.
However, this is a logical impossibility: the Federal government did not exist at the time the contract was signed.
Now, if parties to a contract create an entity via the contract to further the interests of the parties, then whose right is it to determine whether the created entity is fulfilling the terms of the contract? The created entity, or the original parties?
Under our current “system” the almost universal assumption is that the created entity is the one to make this determination. This is, of course, insane. Nowhere in the Constitution is the federal government given the power to rule on whether or not it is playing by the stated terms. But under the current “system”, we’ve allowed the federal government to be both a party and also the judge in every Constitutional dispute. Is it any wonder that federal power almost always wins? What else would common sense expect?
One of the reasons the Obamacare case has been such a farce is that it is simply not allowed to be tried on any real grounds: namely that the Federal Government simply lacks any enumerated power to do anything whatsoever about health care in this country. Instead, we have the spectacle of trying to get the whole thing thrown out on a ludicrous sideshow technicality (aka “The Mandate”), a case begged before a tribunal that in truth has no right to decide the outcome. Even Congressional elections are essentially a sideshow.
Conservatives have got to learn, and learn quickly, to stop adopting the mentality of a slave who must go before its master plaintively begging for rights that the master will never give. If asked to arbitrate between itself and anyone else, the Federal Government (via courts or the Congress) will choose itself almost every time. Of course!
The irony is that under the Constitution, the federal government is not--and cannot logically be--the decider of what counts as Constitutional. That power is reserved to the states, because that power came from the states. It is the only place where that power resides, or logically can reside.
Until conservatives figure this out, they will continue to lose, and lose, and lose, as they foolishly try to play a game that cannot be won. Everything else is delusion.
"Ilion, please see my latest post."
But, I had.
I was not disputing what you'd written, but rather pointing out yet one more truth we grasp when we give actualy consideration to what the Constitution actually says.
"While we are on the topic of Constitution, I would remind you that no Founding Father but Hamilton saw any value in democracy."
Surely you mean Jefferson, that proto-leftist weasel, not Hamilton.
I would agree, but then nullification and secession are the keys to the puzzle of federal power...
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