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Sinners In the Hands of Anthony Kennedy
Red State ^ | March 28, 2012 | Erick Erickson

Posted on 03/28/2012 3:01:52 AM PDT by Cincinatus' Wife

Yesterday the left descended into madness. The madness came early in the day. It happened shortly after 10 o’clock in the morning. Justice Anthony Kennedy opened his mouth and uttered his first question on the issue of the individual mandate. He asked, “Can you create commerce in order to regulate it?” The question, the second asked yesterday morning, bothered the left.

As the clock approached 11, Kennedy spoke again, sending shockwaves through the legal community. He stated matter of factly,

_____________________________________________________

the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

______________________________________________________

It was the quote heard round the world. It is what the tea party movement, libertarians, conservatives, and so many private citizens have been saying. It was an expression of what every legal scholar on television has pooh-poohed as the troglodyte rhetoric of plebeians not educated enough to understand their own founding compact.

That Justice Kennedy expressed something so obvious to so many Americans that so many well educated legal analysts have mocked for two years as an outmoded view of the constitution put forward only by hicks, rubes, and the racist middle class tea partiers not cool enough to defecate on police cars like the Occupy Wall Street hipsters should deeply, deeply trouble every radio station, newspaper, and television news network along with the American people.

Just how out of touch are the people the news media relies on as legal experts used to help form both their and their audiences’ opinions? More so, is it not abundantly obvious that legal experts let their own partisanship shape their opinions?

All of this, however, overshadows a more important issue — how the hell did a constitutional, democratic republic come to depend on the whims of one man in a black robe who nobody ever elected to anything?

Two years ago, Jan Crawford of CBS News noted the President, in his State of the Union, deviating from modern precedent in those speeches to lash out at the United States Supreme Court.

______________________________________________________

Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on — including the author of the opinion, key swing vote Anthony Kennedy — while Democrats jumped up to whoop and holler.

______________________________________________________

Shortly thereafter the Democrats, without a single Republican vote, passed Obamacare.

That Justice Kennedy yesterday raised a point that has been raised by so many non-lawyers is irrelevant to how the Supreme Court rules. All that is relevant is the President’s insult two years ago. Why?

This morning the New York Times reports that “many legal scholars, including some conservatives, have been predicting that the Supreme Court will uphold the 2010 health care overhaul.” In a profile of Randy Barnett yesterday in the New York Times, the paper reported there as well that “many of his [Randy Barnett's] colleagues, on both the left and the right, dismissed the idea [that Obamacare is unconstitutional] as ridiculous — and still do.”

Legal scholars the media pays attention to — who are typically on the left — all thought that, based on their jurisprudential biases, Obamacare would be constitutional. Justice Kennedy, raising the same point raised by so many on the right going back to the 1990′s when Republicans originally suggested the individual mandate as an alternative to Hillarycare (yes, many conservatives and libertarians opposed it then too), stunned the legal community today because he deviated from a liberal echo chamber.

Consequently, his deviation can only be explained away by partisan politics, not legal jurisprudence. That so many liberal legal scholars disagree with Kennedy is proof he is a partisan. Already the White House and Democratic operatives are screeching that this is just like Bush vs. Gore all over again. They do not presume that the liberal justices are partisan — only the conservatives. It is an argument designed by the left to cook the books in their favor, but they miss one thing. A sizable majority of Americans agree with Justice Kennedy. They are also not helped by widespread agreement on the left and right today that the Solicitor General of the United States had an atrocious performance and Paul Clement, arguing for the states, hit every ball out of the park assisted by some terribly insipid questioning from Sonia Sotomayor.

As partisans on the left start screaming that the conservatives have politicized the federal bench in a way they did not by attacking Robert Bork or some such nonsense, they ignore both their partisan attacks on Robert Bork, Clarence Thomas, etc. and their intellectually dishonest legal progeny derived from Roe vs. Wade. That case, still a source of conflict in America, is no longer even defending as intellectually rigorous by Justice Ruth Bader Ginsberg. She may like its holding, but not how that holding was reasoned.

Every time the left wins an argument expanding the meaning of the constitution, the Court somehow got it right. Every time the left loses an argument over the constitution, the Court somehow became politicized. And while the right says the same on the opposite cases there is a fundamental difference.

The right’s position on constitutional jurisprudence boiled down to its essence is that every man and woman in America should be able to read the constitution and have a fair understanding of it and how government is supposed to work. One cannot read the constitution and legitimately understand exactly how an abortion right is extrapolated out of the Bill of Rights. Likewise, one cannot read the constitution and understand how a Congress of limited powers can compel any person to purchase a product he does not want.

But liberal legal scholars so stunned at Justice Kennedy’s point favor a constitution where the public must hire them and their brethren to bow before men and women in black robes offering up prayers and petitions that the black robed masters divine from the text of the constitution some new right or government power no man on the street can see.

We have complicated our tax code, our regulations, and our legal system. In each we must now pay self-appointed experts trained in the art of gobbledegook to parse words, divine intent, and lobby for exceptions that prove rules.

Our nation is no longer a nation of laws, but a nation of elites who interpret those laws for us. It has all led to a very logical place.

In placing our constitution in the hands of a black robed elite who can divine from thin air powers, rights, and duties neither contemplated nor easily extrapolated from the constitution, our republic has become a kingdom. Our king is Anthony Kennedy. Every argument advanced is advanced with him in mind. On every major issue he is the decisive vote.

Put bluntly, the constitutional integrity of our republic has been ceded to one man in the third branch of our federal government. It makes him more powerful than the democratically elected Congress and President. It is not a sign that our system is too partisan. It is a sign that our system is broken in a fundamental way.

But the dirty little secret is that while legal experts and scholars may agree the system is broken, they only think so when Anthony Kennedy disagrees with them.


TOPICS: Business/Economy; Constitution/Conservatism; Editorial; Government
KEYWORDS: constitution; healthcare; judiciary; scotus; supremecourt
Bringing the Courts Back Under the Constitution

NEWT 2012 Position Paper Supporting

Item No. 9 of the 21st Century Contract with America:

Restore the proper role of the judicial branch by using the clearly delineated
Constitutional powers available to the president and Congress to correct, limit, or
replace judges who violate the Constitution.

_______________________________

The Greatest Dangers to Liberty
Lurk in Insidious Encroachment
By Men of Zeal
Well-Meaning but Without Understanding

Justice Louis D. Brandeis (1928)
Engraved in Stone, U.S. Capitol Building (H120A)

Overview:

The revolutionary idea contained in the Declaration of Independence is that certain fundamental human rights, including the right to life, are gifts from God and cannot be given nor taken away by government. Yet, secular radicals are trying to remove “our Creator” – the source of our rights – from public life. Newt has an aggressive strategy to defend life and religious liberty in America.

Principles to protect life and religious liberty

* Nominate conservative judges who are committed to upholding Constitutional limited government and understand that the role of the judges is to interpret the law, not legislate from the bench.
* Combat judicial activism by utilizing checks on judicial power Constitutionally available to the elected branches of government. (Read an extended white paper on restoring the proper role of the judicial branch here.)
* End taxpayer subsidies for abortion by repealing Obamacare, defunding Planned Parenthood, and reinstating the “Mexico City Policy” which banned funding to organizations that promote and/or perform abortions overseas.
* Protect religious expression in the public square such as crosses, crèches and menorahs.
* Protect healthcare workers right to conscience by making sure they are not forced to participate in or refer procedures such as abortion.
* Protect the rights of home-schooled children by ensuring they have the same access to taxpayer funded, extra-curricular educational opportunities as any public school student.
* Protect the rights of teachers to use historical examples involving religion in their classroom. Nor should they be discouraged from answering questions about religion or discussing it objectively in the classroom.
* Protect the frail, infirm and the elderly from the state’s arbitrary decision to terminate life.

1 posted on 03/28/2012 3:01:56 AM PDT by Cincinatus' Wife
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To: Cincinatus' Wife
Protect the rights of home-schooled children by ensuring they have the same access to taxpayer funded, extra-curricular educational opportunities as any public school student. * Protect the rights of teachers to use historical examples involving religion in their classroom. Nor should they be discouraged from answering questions about religion or discussing it objectively in the classroom.

We should begin the process of privatizing all K-12 education. We should begin the process of shutting down all government, single-payer, socialist-entitlement schooling.

All "extracurriculuar" activities should be privatized or moved to the county departments of recreation.

If all K-12 education is privately delivered, the issue of religious expression and all other First Amendment violations of government schooling ( free speech, free press, and free assembly, the establishment of a government sponsored godless worldview, and free expression of religion) magically go away!

2 posted on 03/28/2012 3:20:49 AM PDT by wintertime (Reforming a government K-12 school is like reforming an abortion center.)
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To: Cincinatus' Wife

I’ve been thinking about this for some time now and with that being said I believe the following points to be both true and valid.

1. Obamacare is the gateway to total slavery of all U.S. Citizens. If this law is found to be constitutional then our Civil war in the 1860’s that was partially fought over the cause of slavery has finally been lost.

2. Using the excuse of Government Health care then the Government can legitimately claim that they own our personal bodies and can dictate what we eat, where we live, what we do for a living, (for those who work). Even what we wear for clothing.

This would all be possible under the need to control health care costs as they can legitimately claim that environmental factors do effect the general health of a human being. So it is necessary to control the environment of the people in the Obamacare System.

3. If the Government owns our personal bodies that means it also owns the issue of our bodies. That means any children we have are not our own and can be removed from us to be reared in a Government approved facility.

It also means that our internal organs belong to the Government and we only have the right to use them until/unless a more valuable member of society needs the organs more than the person currently using them.

Yes, I know some will think of this as being radical, I am just attempting to do a logical extrapolation of the intended and unintended consequences of this ruling by the Supreme Court.


3 posted on 03/28/2012 3:24:06 AM PDT by The Working Man (No child left behind should be: No Child left a dime.)
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To: Cincinatus' Wife
I suspect that Newt fully understands that government single-payer and socialist-entitlement schooling is one of our nation's **most** serious threats. He probably feels that with his proposals he is pushing the American public, that is highly addicted to socialist-entitlement babysitting ( oops! “schooling”), as far as it is capable of moving.

Personally, I consider government single-payer and socialist-entitlement schooling to be soooo evil, so harmful to the children, and such a threat to our nation's freedom, that I have made a decision:

I will no longer have a government school teacher or worker for a friend. ( I wouldn't have an abortion worker for a friend either.)

4 posted on 03/28/2012 3:26:50 AM PDT by wintertime (Reforming a government K-12 school is like reforming an abortion center.)
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To: Cincinatus' Wife
That so many liberal legal scholars disagree with Kennedy is proof he is a partisan.

There is a world of insight packed into that little sentence. The Left is, by definition, correct, mainstream, and unbiased. To disagree with the Left is, by definition, to be incorrect, extremist, partisan, and -- quite possibly -- racist.

5 posted on 03/28/2012 3:27:45 AM PDT by ClearCase_guy (Like Emmett Till, Trayvon Martin has become simply a stick with which to beat Whites.)
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To: wintertime

And since all of those other issues go away, the Left will fight tooth and nail, supposedly “for the sake of the children”.


6 posted on 03/28/2012 3:27:52 AM PDT by Pecos (O.K., joke's over. Time to bring back the Constitution.)
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To: The Working Man

Well said.


7 posted on 03/28/2012 3:28:50 AM PDT by MachIV
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To: Cincinatus' Wife

bump


8 posted on 03/28/2012 3:29:42 AM PDT by Christian4Bush (PSA. As of 3/28/12, 223/298 days 'til we vote out/take out the trash. (11/6/12, 1/20/13))
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To: wintertime

Surprise, surprise to me in 2008. While standing in the Strongsville, Ohio recreation center I struck up an outstanding conversation with the person standing next to me. When it came around to what she did for a living...she was a school teacher.

I currently have a client whose husband is a small business owner and his wife is a teacher. And they are both on opposite sides of many issues. But...one many, many issues she falls conservative.

It tends to make me think there are more of them ‘in there,’ than we know and if possible we should seek them out and find ways to support them.


9 posted on 03/28/2012 3:33:35 AM PDT by EBH (God Humbles Nations, Leaders, and Peoples before He uses them for His Purpose)
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To: wintertime
We need a "President Palin" now more than ever. I continue to pray for a Brokered Convention and a miracle. Seems like we always should have known that we would only receive our Guardian Angel if she were, in the end, delivered by God.

;-\

10 posted on 03/28/2012 3:34:52 AM PDT by Gargantua ("Ich bein eine Breitbart")
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To: ClearCase_guy
There is a world of insight packed into that little sentence. The Left is, by definition, correct, mainstream, and unbiased. To disagree with the Left is, by definition, to be incorrect, extremist, partisan, and -- quite possibly -- racist.

Communists are, by definition, correct, mainstream, and unbiased. To disagree with Communists is, by definition, to be incorrect, extremist, partisan, and -- quite possibly -- racist. ...not to mention, subhuman.

11 posted on 03/28/2012 3:37:14 AM PDT by olezip
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To: EBH

There are certainly a number of conservative school teachers...and they have to keep their lips sealed about their beliefs, because they would be harrassed and probably hounded out of their jobs if they let on. The majority of schoolteachers are leftist hacks, and like all government-employed leftist hacks, they are completely intolerant of any divergence from the received wisdom and actually pretty vicious.

I was in Oaxaca, Mexico recently and somebody asked one of our hosts if there had been any violence there, meaning drug violence. He said no, the only violence they had had there recently had been a teacher’s union riot over the fact that the conservative party had won the national election! The teachers set up barricades, burned tires, threw rocks, tried to destroy historic buildings in the center, etc. As Governor Walker can attest, there is no fury like a bureaucrat scorned.


12 posted on 03/28/2012 3:46:22 AM PDT by livius
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To: The Working Man
Well stated. A shorter version is that the US is trying to reimpose slavery on its citizens. The only change is who are the slave masters.
13 posted on 03/28/2012 3:53:10 AM PDT by Truth29
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To: Christian4Bush

Anthony Kennedy can Single Handedly Accomplish Obamas Ultimate Goal of Fundementally Transforming The United States Of America. This will transform the Constitution to What Obama Believes it says,He stated it in a Radio Interview in Chicago,Never Mind that it Turns the Constitutions Meaning on its head,”The Constitution is a Document Of Negative Liberties,It says what the Federal Government cant do to you,What the states cant do to you,But it doesnt say what the Government can and Must do for you”.
So welcome to the Brave New World Folks,One Idiot in a Black Robe with the Stroke of a Pen Will overturn over 200 years of Freedom,bought and Paid for with the Blood and Sacrifice of untold Millions,all brought to us because of the Multitudes of Morons and Idiots who fell for the Smooth talk of an America Hating Marxist.
Have A Nice Day


14 posted on 03/28/2012 3:53:30 AM PDT by ballplayer
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To: Cincinatus' Wife
Our king is Anthony Kennedy.

King or a very rare remnant of what a Free individual truly is? He decides, for himself (and our country by default) how to interpret the Constitution.

The only reason the bench seems politicized is because the left created it, with intent to overthrow a Constitutional Republic. Appointments to the bench should be of individuals with eyes to the Constitution, not those to the progressive and liberal agenda.

Which as we see the result of politicized presidency and President's whose overall agendas are based not on 'life, liberty, and the pursuit of happiness,' but on control, collectivization and a lacking of intentioned liberty of the People we have a politicized Supreme bench.

Since when is it 'conservative' to be demanding of the upholding of the Constitution. This very basic concept is what was the source of all that was good for every American.

Kennedy is not a king and as the left whoops and hollers over Kennedy's questions, let them be reminded that the Constitution was written for individuals and allows each of to seek out and pursue what is best for the individual, not what is best for a collective government.

15 posted on 03/28/2012 3:54:35 AM PDT by EBH (God Humbles Nations, Leaders, and Peoples before He uses them for His Purpose)
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To: Cincinatus' Wife

Out of the BALLPARK!


16 posted on 03/28/2012 4:04:15 AM PDT by poobear
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To: Cincinatus' Wife

Good article with a brilliant title. Thanks for posting.


17 posted on 03/28/2012 4:11:17 AM PDT by willieroe
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To: Cincinatus' Wife

Very good, thanks!


18 posted on 03/28/2012 4:21:39 AM PDT by vanilla swirl (searching for something meaningfull to say)
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To: Cincinatus' Wife

Noted.


19 posted on 03/28/2012 4:24:42 AM PDT by COUNTrecount (Barry...above his poi grade.)
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To: Cincinatus' Wife
Restore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution.

An excellent idea.

However, the President has little or no power over a serving judge. Once nominated by the President, he has little further way of influencing him.

Congress, OTOH, is supreme over the judiciary.

Which illustrates the fallacy of the "three co-equal branches of government" notion.

The judicial and executive branches have strictly limited direct powers over Congress, which has absolute and final power over the other two branches, up to and including the governmental equivalent of life and death power, impeachment and removal from office.

Congress has ceased using its constitutional powers, as most of them have become careerists more interested in re-election than in exercising power. It's just easier for Congress to pass the buck to the executive and (especially) judicial branches on tough issues.

But that doesn't change where the Constitution quite intentionally put the power, in Congress.

20 posted on 03/28/2012 4:38:36 AM PDT by Sherman Logan
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To: Cincinatus' Wife

Put bluntly, the constitutional integrity of our republic has been ceded to one man in the third branch of our federal government.”

I have often said this. And it is worse than that: this one man was appointed decades ago; he has never run for any office - not even City Council. Many don’t know his name and of those that do know his name wouldn’t recognize him if he were to talk into the room. And he gets to serve for life.

This is a problem.


21 posted on 03/28/2012 4:55:26 AM PDT by ConservativeDude
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To: The Working Man
Yes, I know some will think of this as being radical...

I go off on musings like this also, so I don't think it is radical. When Obama said that he wanted to make it so that we didn't have to spend so much on gas, rather than saying he wanted the price of gas to be lower, my first thought was that they would start to dictate how close you had to live to your place of work or impose severe fines if your commute was too long. I really would not put that past these people.

22 posted on 03/28/2012 5:07:31 AM PDT by stayathomemom (Beware of kittens modifying your posts.)
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To: The Working Man
Yes, I know some will think of this as being radical,

No, you are making perfect sense. This is exactly what will happen. You can argue that everything we do affects our health & therefore the government will have the ability to control everything. When the government gives you money, there are strings attached. When healthcare is via the government, there will be major strings. As an example, think of the Leftist agenda ... population control being one of them .... we will eventually end up like China with a one child law, if you are even able to have children .... It boggles my mind the folks that think Obamacare is just wonderful .... we should all be in the streets demanding that it be repealed & ready to fight for this if necessary because it is going to change our lives to that of government slaves and America as it was founded will be no more.

23 posted on 03/28/2012 5:12:32 AM PDT by MissMagnolia (Being powerful is like being a lady. If you have to tell people you are, you aren't. (M.Thatcher))
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To: The Working Man

You forgot the already proposed gun control by the AMA in the name of public health. It’s not an extrapolation, it’s a fact.


24 posted on 03/28/2012 5:12:32 AM PDT by Hostage (Be Breitbart!)
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To: EBH
Re teachers: It tends to make me think there are more of them ‘in there,’ than we know and if possible we should seek them out and find ways to support them.

Support them in what?

25 posted on 03/28/2012 5:16:56 AM PDT by Lady Lucky
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To: The Working Man

IMO EVERY ACT committed by Obama has been manifest in calculated prosecution of his Goal to fundamentally change America. To make the USA a reflection of the Failed soviet Communist system— and no more exceptional —nor capable of
world leadership than any of the European systems now threatened by Islamic Caliphate. IF Obama can succeed in his “change” with the help of a Congress that prepared for his ascendancy to the “highest Office” one he is NOT Constitutionally qualified to hold. With help of a Judiciary that acted as if defending a college chum was more important than supporting the US Constitution. with help from the “useful idiots” who were perhaps beguiled by the opportunity to be part of the historic vote for our “first Black President” and his promise of “change” Just how is that hopey changey thingy working out for you America? As his community organizers whip up the masses in their chants “No Justice—No Peace”


26 posted on 03/28/2012 5:33:53 AM PDT by StonyBurk (ring)
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To: Sherman Logan
Congress has ceased using its constitutional powers, as most of them have become careerists more interested in re-election than in exercising power. It's just easier for Congress to pass the buck to the executive and (especially) judicial branches on tough issues.

But that doesn't change where the Constitution quite intentionally put the power, in Congress.

That is what congress did with health care, they ceded their legislative power to the executive "rule making authority."

I'll quote from William Blackstone's Commentaries, a book every lawyer had to know by heart to be admitted to the bar before the progressive era.

In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate many enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it's own independence, and therewith of the liberty of the subject.

27 posted on 03/28/2012 6:02:58 AM PDT by ALPAPilot
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To: Cincinatus' Wife

“...a sign that our system is broken in a fundamental way...”

Not broken. Subverted.

IMHO


28 posted on 03/28/2012 6:32:09 AM PDT by ripley
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To: ConservativeDude
Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on — including the author of the opinion, key swing vote Anthony Kennedy — while Democrats jumped up to whoop and holler.

Remember this? I wouldn't worry about Kennedy. But this proves that Obama is stupid. Making an enemy of the USSC swing vote for no good reason.

29 posted on 03/28/2012 7:33:29 AM PDT by sportutegrl
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To: Cincinatus' Wife
[Article] Likewise, one cannot read the constitution and understand how a Congress of limited powers can compel any person to purchase a product he does not want.

Actually, one can -- because in Article I, the Constitution does that when it gives Congress the responsibility and power of directing how the Militia should be armed and trained, and the States the naming of the Militia's officer corps.

That may be the only instance of Congress receiving the power to direct citizens to purchase equipment (spelt out in the Militia Acts of 1792 and 1795). The Militia Act(s), however, did not penalize men too poor to own a firelock, but made alternative provisions for their arming, however humbly.

30 posted on 03/28/2012 12:37:56 PM PDT by lentulusgracchus
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To: sportutegrl

i didn’t realize Kennedy was the author! oops!


31 posted on 03/28/2012 1:45:25 PM PDT by ConservativeDude
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To: Cincinatus' Wife

“Yesterday the left descended into madness.”

That must’ve been a remarkably short step down.


32 posted on 03/28/2012 6:02:22 PM PDT by Salamander (You don't know what's going on inside of me. You don't wanna know what's running through my mind)
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