Posted on 04/04/2012 10:51:02 AM PDT by SeekAndFind
You think the idea is laughable? Thomas Jefferson disagreed with you.
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Salmon Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.
During that period—which ran from the years after of the Civil War to the start of the 20th century—wealth became highly concentrated and corporations came to dominate American business.
At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent—a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and comprised an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.
All these ills were ultimately addressed by the federal government, but the strongest and most sustained resistance to fixing them came from the court. One exception was the great Justice Oliver Wendell Holmes, who argued that where economic regulations are at stake, judges must respect legislative decisions aimed at protecting society’s most vulnerable members. Our Constitution, Holmes famously wrote, does not enact social Darwinism. If the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.
That idea doesn’t appear to hold much water with the current court. Justice Clarence Thomas, in particular, has a well-known affinity for the values of the Gilded Age. But he has quietly gone from being an outlier to being only one of five consistently regressive votes.
The pattern began with the court’s 2007 decision in Gonzales v. Carhart, a case involving a rarely used, late-term abortion procedure. In holding that the government can prohibit abortion even where a woman’s life or health is at risk, the court overturned a decision that was not yet 10 years old.
To justify the ruling, Justice Anthony Kennedy—an ostensibly staunch believer in individual liberty—explained that some women who might otherwise undergo it would come to regret their decision. Ah, fickle women! Since Roe v. Wade the abortion debate has always involved male-dominated legislatures enacting laws telling women what they can and cannot do. The Roberts Court, it seems, is similarly not averse to helping protect women from themselves.
Also in 2007, the court ruled that a Seattle school district’s plan to achieve racial balance in its public schools was unconstitutional. Reasonable people can of course disagree about whether using race to arrive at a diverse student body is good policy or bad. But there is an unquestionable moral distinction between using race to encourage racial integration versus using race to keep the blacks away.
The latter is, of course, what the court allowed in 1896, when it upheld the so-called “separate but equal” doctrine in Plessy v. Ferguson. Justice Harlan famously dissented in Plessy, insisting that the Constitution is colorblind. In a perverse rhetorical move, Chief Justice John Roberts, writing for the court in the Seattle case, suggested that Harlan's phrase applies equally where the government is trying to promote the blending of the races rather than maintaining their separation.
And then came Citizens United, in which the court struck down a popularly supported, bipartisan effort to place limits on the ability of the wealthy to dominate political discourse. Income inequality is a fact of life in a capitalist system. But when it comes to choosing our elected representatives, the people are supposed to stand on equal footing. Your right to control your destiny by electing people who share your visions and values is not supposed to depend on the fatness of your wallet. But now, thanks to five justices, it does. In ruling that corporations have a First Amendment right that precludes Congress from regulating how much money they can spend to support political candidates or causes, the court propped up a regime where the voices of the wealthy drown out all the rest.
Each of these cases was decided by a 5-4 vote, along predictable and ideological lines. Each overturned comparatively recent precedent. Each paid obeisance to a 19th-century norm. And while any individual ruling can always be justified or explained away, a larger truth emerges ineluctably from the whole. A decision overturning the Affordable Care Act will fit snugly into this narrative.
The vacuity of the arguments against the health-care law has been well covered (see especially Akhil Amar’s analysis in Slate). I will add only two points.
First, Congress’s authority in passing the law rests on an elementary syllogism: You don't have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it. Liberty, like every other human and constitutional right, is not absolute. Under some circumstances, it can be regulated.
Which leads to the second point: critics of the health-care law say the only reason the rest of us have to pay for medical services used by people who have no money is that laws require hospitals to treat people who come in for emergencies regardless of their ability to pay. In other words, the critics say, the only reason there is a social cost—the only reason the syllogism works—is because of the underlying laws requiring hospitals to treat the poor.
Unlike silly examples involving broccoli and cell phones, that so-called “bootstrap” argument is sound. But here the critics drop their ideological mask as surely as the court dropped it in the Gonzales ruling. Their argument can be restated thusly: if you repeal laws requiring hospitals to treat the poor, you eliminate the constitutional basis for mandatory insurance coverage.
You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die. And if the Supreme Court strikes down the health-care law, that is exactly the ideology it will have to embrace. It will be saying that Congress cannot guarantee medical coverage for the poor and then implement a system to pay for it. In other words, the only people entitled to health care are the people who can afford it.
The last time the court went down this path, saner heads prevailed. Oliver Wendell Holmes’s view was historically and constitutionally correct, and the court finally acknowledged this in a pivotal 1937 case, West Coast Hotel v. Parish. In West Coast Hotel, the court ruled that the Constitution safeguards not just individual liberty but community interests as well; and in matters of economics, it is the legislature’s job to strike the appropriate balance between those two. If the Roberts Court overturns the Affordable Care Act, it will be mimicking the discredited court of 1935.
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
Dow, David R
Houston, TX 77005
University of Houston/law Professor
MOVEON.ORG POLITICAL ACTION $500
primary 01/01/10
Dow, David
Houston, TX 77005
university of houston/law professor DEAN, HOWARD (D)
President
DEAN FOR AMERICA $300
primary 09/10/03
Dow, David R
Houston, TX 77005
Univ of Houston/Professor EDWARDS, JOHN (D)
President
EDWARDS FOR PRESIDENT $250
primary 06/30/03
Bing, bing bing. We have a WINNER!
Oh, and don't forget feelings. Feelings are important too.
Thomas Jefferson was a hypocritical scribbler who financially screwed his male friends, secretly worked against Washington while he served in his cabinet, screwed his female slaves. The luckiest thing that happened to this country was that he was an ocean away in France while the constitutional convention was held and it took weeks for communication. He talked about civil rights and due process but tried to railroad Burr to the gallows; he talked about freedom but would not put any effort toward freeing the slaves even after he was retired from the Presidency,
He and his cohorts tried to close down free speech and press by prosecuting his opponents for telling the truth.
He closed down the military and had to fight the wars with the military that had been built up by Washington and Adams
he set up embargoes that helped ruin the economy and caused the New Englanders to consider Secession;
The Louisiana Purchase fell into to his lap and caused him to abandon his position regarding the extent of Executive Power.
Not surprised the Democraps use him and Jackson for templates for their excesses.
That is a fact. One thing about Romney, he knows a great thinker when he sees one, and Newt is bound to be involved in the future administration. That is not a bad thing.
I quit reading here. Such a statement shows he has zero understanding of the Constitution.
Ditto! These people have no clue!
I predict race riots by the summer. If they overturn Obama care the Race-baiter in chief and Sharpton types will declare that the Health Care law is a civil rights issue and stir up trouble! The DEMOCRAT convention in Charlotte is going to be a Powerder Keg....
But he wasn’t talking about one case.
“If the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.”
Here is where liberals brains have a total meltdown.
Not all laws that are “good” and “just” and designed to “protect the poor and less powerful” are therefore Constitutional based upon that criteria.
A liberal cannot get it through their head that not all things worth doing are worth having the government do - and a law could be a “good” law and still assume powers not granted via the Constitution - and are thus unconstitutional and SHOULD be struck down.
No gun stores within a few miles of a school might be (to some) a good law - but it assumes powers not granted by the U.S. Constitution - and it was struck down on THAT basis.
Those who thought the law was not Constitutional didn’t necessarily want there to be gun stores close to schools - they just didn’t want Congress to assume it had the power to regulate it.
Salmon Portland Chase (January 13, 1808 – May 7, 1873) was an American politician and jurist who served as U.S. Senator from Ohio and the 23rd Governor of Ohio; as U.S. Treasury Secretary under President Abraham Lincoln; and as the sixth Chief Justice of the United States.
Jefferson attempted to impeach a Federalist justice named Samuel Chase (17th April 1741 – June 19, 1811), a signer of The Declaration of Independence!
Jefferson's attempt was an epic fail because even a highly partisan US Senate lead by Jefferson's party refused to convict a sitting justice over political differences.
Where is Professor DB Dow when a federal court strikes down a popularly supported, bipartisan law or referendum, limiting marriage to a union between a man or woman or placing limits on a women's ability to kill her unborn child at will? What is DB Dow's position on the many Supreme Court decisions that have struck down popularly supported, bipartisan efforts to keep black people in the back of the bus,to prevent black people from voting, to keep black people from marrying white people, and to keeps schools and neighborhoods segregated? What about the Arizona Immigration Law that was passed by a significant majority of both houses of the legislature and enjoys popular support? What seems obvious to me is that the loony left defines an activist judge as a judge that rules against a liberal cause.
I don’t see any way in this world to avoid an armed conflict with these folks.
They seem hell-bent on subjugating us to their will, and will use any means, including force, in order to do so.
And here we sit, the won’t-be-subjugated, on the largest supply of privately held firearms and ammunition in history.
Is EMTALA constitutional?
Wow! What a bunch of crap.
I nearly saw a lib’s head explode once over my statement of
“simply being a good idea doesn’t mean that the government legally has the power to do it”
Impeach the Supreme Court Justices If They don’t Overturn Health-Care Law.
They simply cannot wrap their minds around the concept that the government doesn't have an unlimited mandate to wield unlimited power in innumerable ways - so long as it is in service of “a good idea” or accomplishes a “societal good”.
They really have no concept of a government of LIMITED and ENUMERATED powers.
Witness Kagan (IIRC) talking about ‘it sounds like a boatload of money rather than an imposition’ or whatever - in answer to a question as to the Constitutionality of the mandate. Sort of a “Hey it is a financial windfall - take the money - who cares if the government has the power to regulate in that fashion - taking the money would be a good thing”.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.