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The Supreme Courtís Dismal ObamaCare Decision
Reason Magazine ^ | July 8, 2012 | Sheldon Richman

Posted on 07/08/2012 11:06:48 AM PDT by sourcery

[T]he irony of Roberts’s opinion must not go unnoticed. His opinion, which is the object of such conservative scorn, is in fact right out of the Antonin Scalia (who dissented) and Robert Bork playbook. (Hat tip to Donald Boudreaux for first bringing this to my attention.) Bork and Justice Scalia believe that unelected judges should not interfere with the elected branches of government except when Congress violates an express, narrowly construed right (essentially the ones in the Bill of Rights). Other interference is branded “judicial activism.” I once heard Justice Scalia say: “My job is not to strike down laws that are constitutional. My job is to strike down laws that are really unconstitutional.” He went on to say that the view that there are unenumerated rights (such as referred to in the Ninth Amendment) would bring the “downfall of the republic."

(Excerpt) Read more at reason.com ...


TOPICS: Constitution/Conservatism
KEYWORDS: roberts; scalia; scotus

1 posted on 07/08/2012 11:06:53 AM PDT by sourcery
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To: sourcery
I once heard Justice Scalia say: “My job is not to strike down laws that are constitutional. My job is to strike down laws that are really unconstitutional.”

Which is exactly what Scalia did. OTOH, Roberts did not do *his* job.

P.S.: Regardless of what Roberts ruled, the mandate is not a tax.

2 posted on 07/08/2012 11:27:39 AM PDT by Lauren BaRecall (John Roberts = a man without a country = illegal alien. Let him stay in Malta.)
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To: sourcery
Bork and Justice Scalia believe that unelected judges should not interfere with the elected branches of government except when Congress violates an express, narrowly construed right (essentially the ones in the Bill of Rights). Other interference is branded “judicial activism.”

what utter garbage. So Scalia believes in "narrowly construed rights"?! No, he believes in striking down only unconstitutional laws. To be constitutional, a federal law must (1) be enacted under an enumerated power and (2) not violate an actual (as in not made-up) right.

This journolist is an idiot.

3 posted on 07/08/2012 11:30:53 AM PDT by piytar (The predator-class is furious that their prey are shooting back.)
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To: sourcery

This is exactly why Madison argued against a Bill of Rights. He thought that the Enumerated Powers was sufficient to limit govt and if we listed off limit areas, future govts could construe that to mean they had infinite power except in those areas. That would turn the intended restraint on govt on its head.


4 posted on 07/08/2012 11:31:43 AM PDT by ziravan (Are you better off now than you werie $9.4 Trillion dollars ago?)
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To: piytar

Acts of Congress (or of the President) can be Unconstitutional even if they don’t violate a valid right. All that’s necessary is that Congress or the President exceed their granted authority, even if doing so violates no one’s rights.

And the Constitution does not claim that it has exhaustively listed all valid individual rights. In fact, it claims it has not. It says that quite clearly in the 9th and 10th Amendments.


5 posted on 07/08/2012 11:42:37 AM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: piytar
Scalia and Bork have claimed that the Court has no authority to declare laws Unconstitutional unless they clearly violate a Constitutionally-enumerated right. That view contradicts that of the Founders:

Alexander Hamilton, Federalist #84:

"I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."

Hamilton wrote those words as part of what history now calls The Federalist Papers, which served as the explanation of what the Constitution meant that the people (and State Legislatures) used at the time in order to understand what they would be agreeing to if they decided to ratify the Constitution.

You should also be aware that, relative to the other Founders, Alexander Hamilton had a VERY expansive view of the powers granted to the Federal Goverment by the Constitution. He was in favor of a National Bank, and thought the Constitution granted the power to create and operate one. Many other prominent Founders strongly disagreed on that point.

Neverthelss, in the above quote from Federalist #84 Hamilton clearly states that the architecture of the Constitution is that whatever power is not explicitly granted is denied. He also clearly denies any possibility that the General Welfare and Necessary And Proper clauses grant any power to regulate, let alone criminalize speech, since he believes that even without a First Amendment, the Federal government is not granted any such powers. (The power to regulate and the power to criminalize are NOT the same thing, by the way.)

6 posted on 07/08/2012 11:54:04 AM PDT by sourcery (If true=false, then there would be no constraints on what is possible. Hence, the world exists.)
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To: piytar
Yep. This is proof that liberals don't know how to read the Constitution. The Federal government now gets levy a direct personal income tax on personal inactivity. This constitutes an incredible expansion of the government's power; it can now tax individuals into oblivion.

And Roberts had to rewrite the damn law in order to squeeze it under the door.

The individual mandate was not written as a tax, so, Scalia said if the legislators didn't classify it as a tax, then it should not be construed as a tax.

And since the government doesn't have the power under the Commerce Clause to impose an individual mandate, so that requirement deserves to be struck down.

Richman is a moron.

7 posted on 07/08/2012 12:24:21 PM PDT by Cyropaedia ("Virtue cannot separate itself from reality without becoming a principal of evil...".)
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To: Cyropaedia

As a stubborn old man, I intend to just wait until the federales come to try and collect for my not buying whatever it is the little barry bastard commie thuggery mandate I buy. When they come I sue on the grounds that the president has no authority to give waivers to some while sending the IRS to collect taxes from others, and my basis for winning this argument is the SCOTUS declaration that the obamaoind mandate is a tax and the executive office does not have the authority to grant waivers of same so the law is being applied illicitly and therefore is void ont he face of it.


8 posted on 07/08/2012 12:28:57 PM PDT by MHGinTN (Being deceived can be cured.)
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To: MHGinTN
I still can't believe that Roberts was stupid enough to do what he did. This decision will serve as a springboard for all sorts of other dumb decisions by the courts.

Just watch.

9 posted on 07/08/2012 12:42:45 PM PDT by Cyropaedia ("Virtue cannot separate itself from reality without becoming a principal of evil...".)
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To: sourcery


10 posted on 07/08/2012 1:00:37 PM PDT by Iron Munro (John Adams: 'Two ways to enslave a country. One is by the sword, the other is by debt')
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To: Cyropaedia

Occam’s Razor dictates that there is a simple reason for the pirate Roberts’ ruling, he works for someone other than The American People, and enables somehting other than The Constitution. His ruling was decidedly unConstitutional, yet he is praised for it, of course by those who do not believe the Constitution should not be allowed to limit what the progressives want to do. These same people are about to discover that their little bastard demigod isnot eligible for the position thay elected him to. But you can count on the FACT that they will reject the truth in favor of the well phrased lies the fifth column media and the dnc will spittle to their itching ears.


11 posted on 07/08/2012 2:19:19 PM PDT by MHGinTN (Being deceived can be cured.)
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Oops, too many ‘not’ words in that sentence. Oh well, such is the aging mind. I’m not declined sufficiently to emrbace the double negative though ...


12 posted on 07/08/2012 2:21:25 PM PDT by MHGinTN (Being deceived can be cured.)
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Oops, too many ‘not’ words in that sentence. Oh well, such is the aging mind. I’m not declined sufficiently to embrace the double negative though ...


13 posted on 07/08/2012 2:21:39 PM PDT by MHGinTN (Being deceived can be cured.)
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