Skip to comments.George Will: The consolation prize (The commerce clause was rejected.)
Posted on 06/29/2012 9:40:43 AM PDT by neverdem
Conservatives won a substantial victory on Thursday. The physics of American politics actions provoking reactions continues to move the crucial debate, about the nature of the American regime, toward conservatism. Chief Justice John Roberts has served this cause.
The health care legislations expansion of the federal governments purview has improved our civic health by rekindling interest in what this expansion threatens the Framers design for limited government. Conservatives distraught about the survival of the individual mandate are missing the considerable consolation prize they won when the Supreme Court rejected a constitutional...
When Nancy Pelosi, asked where the Constitution authorized the mandate, exclaimed Are you serious? Are you serious? she was utterly ingenuous. People steeped in Congress culture of unbridled power find it incomprehensible that the Framers fashioned the Constitution as a bridle. Now, Thursdays episode in the continuing debate about the mandate will reverberate to conservatisms advantage. By sharpening many Americans constitutional consciousness, the debate has resuscitated the salutary practice of asking what was, until the mid-1960s, the threshold question regarding legislation. It concerned what James Q. Wilson called the legitimacy barrier: Is it proper for the federal government to do this? Conservatives can rekindle the publics interest in this barrier by building upon the victory Roberts gave them in positioning the court for stricter scrutiny of congressional actions under the Commerce Clause.
Any democracy, even one with a written and revered constitution, ultimately rests on public opinion, which is shiftable sand. Conservatives understand the patience requisite for the politics of democracy the politics of persuasion. Elections matter most; only they can end Obamacare. But in Roberts decision, conservatives can see the court has been persuaded to think more as they do about the constitutional language that has most enabled the promiscuous expansion of government.
(Excerpt) Read more at humanevents.com ...
We'll see. We have to take the Senate and defeat Obama in November now!. It's not impossible, but we need everybody to vote ABO!
Will has become a buffoon and a shill for the Washington establishment. Your buddy Roberts has become a traitor to America, AND YOU FREAKIN’ KNOW IT!!!
George Will is simple-minded.
Roberts is LAWLESS
The Constitution is a living document -- which means it is dead.
The government can do anything it wants.
States can't stop it. People can't stop it. Courts can't stop it.
There are no laws. Are AZ found out, if you enforce the law, you're in trouble.
Everything is permitted. As Sanctuary cities found out, ignoring the law is perfectly OK.
There is no controlling authority.
And most Americans' constitutional consciousness begins and ends with the question, "Is American Idol on?"
So what? Justices will just find other sections of the Constitution to abuse, such as Scalia citing the Necessary and Proper clause in Raich.
Face it, the ultimate power in SCOTUS is the ability to warp the meaning of words. And Roberts exercised that power to the hilt in this ruling by decreeing it to be a tax where none existed.
The future is grim for freedom lovers, but bright for all-powerful government lovers.
Justice Roberts provided an originalist attack on activist government. His rejection of the commerce clause argument and his opinion on Congress’ taxing power will guide judicial history for decades.
The consolation prize for losing in this bull fight is that he won't have to pay for children, because there won't be any - if he even lives. I'm not sure that's something to celebrate!
Had the court dimissed the entire bill/law, it would have had the same effect.
I read the entire article. George is grasping like all the other "silver liners". His presumption is based on the assumed reaction of Americans over the next several decades. By 2015 this will all be a historic event and another nail in the coffin.
Again, had the court dismissed the entire law, we'd be far better off now and in the future (in my opinion).
This silver lining BS is starting to wear on me. Conservatism and American Exceptionalism took an elephant sized colonoscopy and we are supposed to be happy about not finding an elephant sized tumor amidst the painfully torn and bloody flesh that is the result.
They don’t need the commerce clause any more. They now have the Roberts clause which states the fedguv can order citizens to do anything or nothing and tax them into poverty if they don’t comply. Which is why the liberals eagerly signed on.
George sounds like a woman who gets accosted by a guy in a dark alley and later defends him because, getting shafted having become a foregone conclusion, the perp was nice enough to ask how she’d like it first.
Maybe next time George will be kind enough to explain why fleeing the Federal dogs through the wilderness because of refusal to pay a tax would be far better if happened because you refused to comply with a commerce clause mandate.
Ok, I’m listening to Rush right now & he’s bringing up the fact that Roberts basically re-wrote Obamacare, declaring it a tax but he’s also pointing out that until the tax goes into effect or levied, then how can SCOTUS have ruled on it??
Any thoughts from the legal eagles??
Explain that. I know media types and writers keep trying to make that case. But in every circumstance they have to make some presumptions that would be almost unprecedented.
Here is the test to make the case. What past SCOTUS ruling would have been affected (changed) based on the "positive" precedent that Roberts set in his opinion?
When a court makes an "incorrect" decision -- by which I mean, of course, a decision which goes against the Liberals, it just means the fight will continue another day. There will be other cases, other decisions. There will be no let up until some court somewhere eventually "gets it right".
When a court makes "correct" decision -- by which I mean, of course, a decision which goes against Conservatives, then it's over. It's done. It's settled law. That's it. Law of the land and there's nothing you can do.
The Liberals won yesterday and I do not expect that damage to be undone by Romney or anyone who comes after. I expect Roe v Wade to be overturned first. And how is that one coming?
A $10,000 per-gun/per-year "tax" on firearms ownership? A violation of the Constitution? Heck no! Congress' power to tax is *unlimited*!
"Although all men are born free, slavery has been the general lot of the human race. Ignorantthey have been cheated; asleepthey have been surprised; dividedthe yoke has been forced upon them. But what is the lesson? ... the people ought to be enlightened, to be awakened, to be united, that after establishing a government, they should watch over it ... It is universally admitted that a well-instructed people alone can be permanently free." - James Madison
As citizens, we may have trusted the "parchment" document called the Constitution to protect us. We may have trusted the "Court" to protect us. In the end, though, as previous justices have warned us, our Constitution, by its own provisions, is "the People's" document.
Unless its principles live in our hearts, minds, and in our will to keep elected and appointed officials from turning it on its head, it is just that: a "parchment barrier."
"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court even can do much to help it." - Judge Learned Hand
With that said, let us examine a valuable review of the so-called "living constitution" school of thought which brought us to yesterday. In the Bicentennial Year of the Constitution, 1987, the following Walter Berns' essay was included in a larger volume, "Our Ageless Constitution." Berns reminded citizens that, through the Constitution's own provisions, and the Founders' own words, it is, as Justice Story asserted, "the People" who are "the only KEEPERS" of the Constitution.
If "the People" are, in the words of Madison, "awakened," then perhaps America may today begin a return to the principles of the "parchment" document whose Preamble describes its noble intent.
"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton
In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:
The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:
The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and independent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.
The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.
Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:
Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."
In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.
The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.
The Enduring American Constitution
Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.
In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the constitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional government. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.
Treating The Constitution As
The real test for Obamacare will come once they start setting up death panels which, I hear will be very soon. How the panelists will be chosen and what they will base their life-or-death decisions on is shrouded in as much mystery as the birthplace of the Glorious Leader. How will people react? Could get UGLY!
In comment# 64 of the last link, I linked the roll call vote and list the 17 rat defectors who voted with the GOP. Boren from Oklahoma is retiring, and Donnelly from Indiana is trying for the U.S. Senate, IIRC.
Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.