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George Will: The consolation prize (The commerce clause was rejected.)
Human Events ^ | 6/28/2012 | George Will

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 legislation’s expansion of the federal government’s 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...

--snip--

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, Thursday’s episode in the continuing debate about the mandate will reverberate to conservatism’s 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 public’s 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 ...


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; US: District of Columbia
KEYWORDS: abortion; commerceclause; deathpanels; georgewill; johnroberts; obamacare; obamacaredecision; roberts; zerocare
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George Will is not alone in thinking it's not just a booby prize. Sean Trende, a senior political analyst at RealClearPolitics, posits Roberts is laying the groundwork to advance conservative jurisprudence here:

The Chief Justice's Gambit (Not as bad as we think??)

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!

1 posted on 06/29/2012 9:40:47 AM PDT by neverdem
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To: neverdem

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!!!


2 posted on 06/29/2012 9:43:09 AM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: neverdem
Wishful thinking. The malignant growth of the Commerce Clause in a myriad of other contexts can still grow unhindered. Certainly the current Court won't hinder it, since it has a liberal majority, and the cancerous growth of the Commerce clause is one of FDR's legacies most cherished on the Left.
3 posted on 06/29/2012 9:47:30 AM PDT by hinckley buzzard
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To: neverdem
George Will is simple-minded.

Tax Anti-Injunction Act

Roberts is LAWLESS


4 posted on 06/29/2012 9:48:13 AM PDT by Uri’el-2012 (Psalm 119:174 I long for Your salvation, YHvH, Your law is my delight.)
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To: neverdem
By sharpening many Americans’ constitutional consciousness

Seriously??

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?"

5 posted on 06/29/2012 9:51:20 AM PDT by ClearCase_guy
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Comment #6 Removed by Moderator

To: neverdem
George Will is not alone in thinking it's not just a booby prize. Sean Trende, a senior political analyst at RealClearPolitics, posits Roberts is laying the groundwork to advance conservative jurisprudence

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.

7 posted on 06/29/2012 9:54:25 AM PDT by dirtboy
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To: neverdem
The Commerce Clause was rejected this time. It does not mean it will be rejected as an argument for something in the future. The SCOTUS is now as political as the other two branches, and we have Roberts to blame for that.

The future is grim for freedom lovers, but bright for all-powerful government lovers.

8 posted on 06/29/2012 9:55:26 AM PDT by jeffc (Welcome to the United Socialist States of America)
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To: alstewartfan

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.


9 posted on 06/29/2012 9:55:26 AM PDT by joeystoy
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To: neverdem

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!

10 posted on 06/29/2012 9:57:00 AM PDT by Pollster1 (A boy becomes a man when a man is needed - John Steinbeck)
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To: neverdem
By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise: Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, “the enumeration presupposes something not enumerated.”

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.

11 posted on 06/29/2012 9:58:54 AM PDT by Tenacious 1 (The Click-&-Paste Media exists & works in Utopia, riding unicorns & sniffing pixy dust.)
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To: neverdem

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.


12 posted on 06/29/2012 9:59:54 AM PDT by jwalsh07 (.)
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To: neverdem

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.


13 posted on 06/29/2012 10:01:11 AM PDT by gzzimlich
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To: neverdem

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??


14 posted on 06/29/2012 10:03:24 AM PDT by rainee
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To: joeystoy
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.

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?

15 posted on 06/29/2012 10:04:32 AM PDT by Tenacious 1 (The Click-&-Paste Media exists & works in Utopia, riding unicorns & sniffing pixy dust.)
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To: Tenacious 1
By 2015 this will all be a historic event and another nail in the coffin.

Indeed.

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?

16 posted on 06/29/2012 10:06:10 AM PDT by ClearCase_guy
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To: neverdem
Not just rejected, George. Made superfluous. No Congress ever again will even have to refer to the CC. From now on Congress can simply call everything a tax and -- viola! -- it's constitutional!

A $10,000 per-gun/per-year "tax" on firearms ownership? A violation of the Constitution? Heck no! Congress' power to tax is *unlimited*!

17 posted on 06/29/2012 10:06:54 AM PDT by kevao
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To: neverdem; All
It is up to us, "the People," to determine whether yesterday is the beginning of rediscovery and restoration of the Founders' ideas, or a further decline into tyranny.

"Although all men are born free, slavery has been the general lot of the human race. Ignorant—they have been cheated; asleep—they have been surprised; divided—the 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.

   







 

 

 

 
 

 

Do We Have
A Living
Constitution?

"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:

"... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

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:

"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 in a departure from it prior to such an act."

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:

  • "Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.

  • "The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)

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.

  • What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.

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
A Thing Without Form or Substance:
New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

  • "Creating" Constitutional Rights and Dworkin's Influence

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

  • The 'Living Constitution' School's Distortion of Marshall

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:

  • "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) ISBN 0-937047-01-5       (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)


18 posted on 06/29/2012 10:10:40 AM PDT by loveliberty2
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To: UriĀ’el-2012

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!


19 posted on 06/29/2012 10:11:55 AM PDT by GodAndCountryFirst
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To: wardaddy; Joe Brower; Cannoneer No. 4; Criminal Number 18F; Dan from Michigan; Eaker; Jeff Head; ...
In comment# 1, I linked Sean Trende, a senior political analyst at RealClearPolitics, who posits that Roberts is laying the groundwork to advance conservative jurisprudence, e.g. reversing affirmative action's de facto reverse discrimination, the obnoxious sections of the Voting Right's Act, etc.

Chief Justice Roberts’s Folly

A Skeptic Looks at Alternative Energy

In 255-67 vote, House places Holder in contempt of Congress

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.

20 posted on 06/29/2012 10:11:59 AM PDT by neverdem (Xin loi minh oi)
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To: neverdem

What a pile of CRAP!!!!! Only RINO elites talk about consolation prizes. Other notable winners of consolation prizes: Hitler, Kaiser Wilhelm; Jeff Davis; Custer; Cornwallis and Al Gore. Will is trying to make chicken salad out of chicken shit and the chicken shit is Roberts. He got rolled. Maybe Kagan, the old hag and the Latina; maybe Obama’s rhetoric did it. Maybe he’s an idiot. After all, Arlen Specter had man love for him.

Let’s face the fact that repeal will never happen. Even if the GOP gets control of all three branches, does anyone think McCain, Collins, Graham and Kyl would support repeal? It’s over folks!

This old Texan is 64, Mrs is 61 and we have no kids. We’ll be dead when the end of the USA really comes - momentum will keep things going awhile. Election Day in November? I’ll be out driving my mules. My voting days are over.


21 posted on 06/29/2012 10:12:08 AM PDT by Repulican Donkey
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To: ClearCase_guy
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?

Ditto on #16. Well Said.

In all bad decisions (by that I mean wrong decisions) the courts set precedent that is skewed and used for future arguments. In Row V Wade, the SCOTUS should have rejected the premise that abortion was a privacy issue. It would have been tossed out and kicked back to the states to decide independently how they wanted abortion regulated. That precedent would have really been helpful in that the court could have argued, "The premise that abortion is a personal privacy issue is rejected by this court. Since there is nothing in the constitution to provide proper guidance as this case was presented. It is this courts opinion that the federal government shall have no jurisdiction over laws pertaining to abortion."

Had the court ruled that way, several cases that have followed since would have required a narrower argument and better constitutional standing to give the justices reference opinions to the actual constitution. If they really wanted to stretch, they could have ruled that abortion infringes on a baby's right to pursue life and liberty.

22 posted on 06/29/2012 10:17:34 AM PDT by Tenacious 1 (The Click-&-Paste Media exists & works in Utopia, riding unicorns & sniffing pixy dust.)
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To: Repulican Donkey

Bookmark


23 posted on 06/29/2012 10:18:04 AM PDT by publius911 (Formerly Publius 6961, formerly jennsdad)
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To: neverdem
(The commerce clause was rejected.)

Well Lah Dee Freakin' Dah!!!

24 posted on 06/29/2012 10:19:03 AM PDT by dfwgator (FUJR (not you, Jim))
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To: neverdem
"The court held that the mandate is constitutional only because Congress could have identified its enforcement penalty as a tax. The court thereby guaranteed that the argument ignited by the mandate will continue as the principal fault line in our polity."

The SCOTUS decision hasn't settled anything. It will invite more scrutiny, more arguments, and likely more SCOTUS rulings in the future. I don't see Roberts' decision as an end to anything, but a beginning.

"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."



The dissent states,

"“Finally, we must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps it is not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression that deserves more thoughtful consideration.”


25 posted on 06/29/2012 10:31:49 AM PDT by floozy22 (ACA: Repeal .. Repeal .. Repeal !)
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To: Repulican Donkey

Well put. The only hope for the country now is for governors of conservative states to stand up and say no to the feds. Nullify this bill and other federal mandates.

As for Roberts, perhaps he was blackmailed. I firmly believe this is a possibility. Either that, or he’s just nuts.


26 posted on 06/29/2012 10:36:50 AM PDT by Pining_4_TX ( The state is the great fiction by which everybody seeks to live at the expense of everybody else. ~)
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To: neverdem

So... let’s say Will is right. Jurisprudence surrounding the Commerce Clause will be significantly narrowed in the future, and the power of the Federal Gov’t on this basis becomes significantly diminished.

Who cares. This decision essentially says that the power of the Federal Gov’t is unlimited as long as every bill comes with a tax attached. If you can be taxed for doing nothing, you can be taxed for anything, and the Feds now have unlimited power to make us do whatever they like.

As long as it’s not, you know, blatently illegal. At least we still have that...


27 posted on 06/29/2012 10:37:29 AM PDT by green iguana
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To: UriĀ’el-2012

I stopped reading when Will said we are a democracy. So much for our republic.


28 posted on 06/29/2012 10:38:24 AM PDT by Pining_4_TX ( The state is the great fiction by which everybody seeks to live at the expense of everybody else. ~)
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To: joeystoy

Joey, please send ME a pair of your rose-colored glasses. All Chief Kangaroo Roberts did was recognize that the commerce clause could not be used to uphold THIS rotting pile of feces. But, as will happen in other cases in his lawless court, they will simply dig for other rationales to uphold progressivism when it’s deemed necessary. Bob


29 posted on 06/29/2012 10:38:24 AM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: Repulican Donkey

I love what you said, and I too am pessimistic. No one with a shred of honesty (or intelligence) is defending the despicable Chief Kangaroo. BUT still, we all must do our part to rid ourselves of every Democrat possible in November. Bob


30 posted on 06/29/2012 10:45:22 AM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: ClearCase_guy; Tenacious 1
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?

Reversing a SCOTUS decision is much harder than repealing a statute. SCOTUS would rather have a civil war than reverse Dred Scott! Remember how quicky that law which required seniors to have catastophic insurance was repealed in the late 1980s.

House Panel Leader Jeered by Elderly in Chicago

The NY Times is referring to Dan Rostenkowski. AARP mobilized seniors. IIRC, it was repealed in less than a year.

31 posted on 06/29/2012 10:46:12 AM PDT by neverdem (Xin loi minh oi)
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To: Pining_4_TX
As for Roberts, perhaps he was blackmailed. I firmly believe this is a possibility.

If he was he caved badly. Founding Father material, he ain't.

Either that, or he’s just nuts.

If nuts, he needs removed.

I think he's a progressive and this helps his agenda, but I've never liked him.

32 posted on 06/29/2012 10:46:27 AM PDT by SCalGal (Friends don't let friends donate to H$U$ or PETA.)
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To: kevao

I hadn’t thought of that, but you are right, and that is scary.

Don’t they keep machine guns out of individuals hands now with a tax?


33 posted on 06/29/2012 10:53:59 AM PDT by Venturer
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To: neverdem; alstewartfan; hinckley buzzard; UriĀ’el-2012; ClearCase_guy; dirtboy; jeffc; Pollster1; ..
As Rush Limbaugh pointed out on his radio show today, Roberts' ruling should be skewered, not praised.

The alleged limitation of Congressional power under the commerce clause that George Will attributes to Roberts' opinion isn't there. Roberts doesn't have any explanation nor does he discuss why the individual mandate in ObamaCare exceeds the commerce clause authority. He wheedled his way out of having to discuss limits on the commerce clause by fraudulently creating the fiction that the individual mandate penalty was a "tax." Of course, the word tax was not used in the statute nor by any of its proponents in public discussions.

Then, after creating the "tax" concept from whole cloth, he duplicitously backed off the very same "tax" notion when he later said that the Anti-Injunction Act does not apply to the case because the individual mandate penalty was not a tax when analyzed with respect to the Anti-Injunction Act.

So Roberts could have his cake and eat it too while being secure in the knowledge that he and his family would be exempt from ObamaCare when implemented, while just about everyone else would be harmed because of his irrational approach. (Was he made an offer he couldn't refuse?)

34 posted on 06/29/2012 10:56:59 AM PDT by justiceseeker93
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To: alstewartfan

T’was a time I would have agreed. But after 23 years of “Read my lips”... “No Child Left Unfunded”....John McCain, Bob Dole, Graham, Snow, Collins, Roberts and blah, blah, blah I’m done. Perhaps the next generation will rise up and rebuild the republic but my generation of conservatives has lost its fight. The great days of the USA really are in the rear view mirror. It was fun to be around for part of them, even if it was during the twilight.


35 posted on 06/29/2012 11:01:26 AM PDT by Repulican Donkey
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To: alstewartfan

T’was a time I would have agreed. But after 23 years of “Read my lips”... “No Child Left Unfunded”....John McCain, Bob Dole, Graham, Snow, Collins, Roberts and blah, blah, blah I’m done. Perhaps the next generation will rise up and rebuild the republic but my generation of conservatives has lost its fight. The great days of the USA really are in the rear view mirror. It was fun to be around for part of them, even if it was during the twilight.


36 posted on 06/29/2012 11:01:33 AM PDT by Repulican Donkey
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To: SCalGal

I suppose I should not be surprised It was a Republican president who gave us Souter. We only have 1 party - the Demopublicans.


37 posted on 06/29/2012 11:08:57 AM PDT by Pining_4_TX ( The state is the great fiction by which everybody seeks to live at the expense of everybody else. ~)
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To: Repulican Donkey

Well Donkey, I hope that you decide to buck up and do what you can do anyway. We have some really good candidates in my Scranton area, and all our non-participation does is cede America to our enemies. Romney is not MY kind of guy, but he has a measure of human decency that the Marxist Failure in the WH lacks. It looked very dark in other times in America, but people fought down to their final breath. Bob


38 posted on 06/29/2012 11:37:14 AM PDT by alstewartfan (Two broken Tigers on fire in the night Flicker their souls to the wind. Al Stewart "Roads to Moscow")
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To: Pining_4_TX
We only have 1 party - the Demopublicans.

Bingo. You can't listen to what they say. You have to look at their individual records. And most voters won't do that.

39 posted on 06/29/2012 11:37:20 AM PDT by SCalGal (Friends don't let friends donate to H$U$ or PETA.)
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To: neverdem

THIS PIECE BY will IS THE WORST ARTICLE OF HIS THAT I HAVE EVER READ”.

Mark Levin 6-28-2012


40 posted on 06/29/2012 11:40:49 AM PDT by LibLieSlayer (Don't Tread On Me)
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To: SCalGal

He has a cracked brain ~ that’s how he gets his seizures.


41 posted on 06/29/2012 11:48:33 AM PDT by muawiyah
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To: Repulican Donkey
The problem is politeness. There's no reason whatsoever to be polite when it comes to politics. The other side wants to kill your babies and sell your body organs to high wealthy people around the world.

I think we would be much better off keeping them on edge regarding our willingness to exsanguinate them as necessary.

42 posted on 06/29/2012 11:51:29 AM PDT by muawiyah
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To: neverdem
The Commerce Clause speak was extraneous to the decision and therefor not precedent.

It's a big nothing burger.

43 posted on 06/29/2012 11:53:07 AM PDT by NeoCaveman ("If I had a son he'd look like B.O.'s lunch" - Rin Tin Tin)
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To: justiceseeker93

Repubs need to sue to get a clear definition of this act. If it is a tax, we can repeal it with a simple majority (and prove Zero lied all along to get it passed). If it’s not a tax, then it cannot meet traitor Roberts constitutional approval (and then Roberts lied, or at least proved he is not Supreme Court material - not that that has ever stopped anyone...).


44 posted on 06/29/2012 11:55:39 AM PDT by jeffc (Welcome to the United Socialist States of America)
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To: green iguana
This decision essentially says that the power of the Federal Gov’t is unlimited as long as every bill comes with a tax attached.

It's worse than that. Now the Dems know they can sell a proposal to the people by calling the tax a "penalty" and deny that it's really a tax. They then let SCOTUS take all the blame by approving it as a tax, letting the Dems off the hook ("We never called it a tax! Blame SCOTUS! But it's law now and we'll take it").

45 posted on 06/29/2012 12:03:43 PM PDT by jeffc (Welcome to the United Socialist States of America)
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To: neverdem

George Will’s job is to spin. He’s trying to spin this as a victory. I doubt he actually believes this.


46 posted on 06/29/2012 12:10:13 PM PDT by Truthsearcher
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To: jwalsh07
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.

You make it sound so...Banana Republicish....

Do I really need a sarc tag?

47 posted on 06/29/2012 12:15:45 PM PDT by Turbo Pig (...to close with and destroy the enemy...)
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To: green iguana; jeffc
So... let’s say Will is right. Jurisprudence surrounding the Commerce Clause will be significantly narrowed in the future, and the power of the Federal Gov’t on this basis becomes significantly diminished.

Who cares. This decision essentially says that the power of the Federal Gov’t is unlimited as long as every bill comes with a tax attached. If you can be taxed for doing nothing, you can be taxed for anything, and the Feds now have unlimited power to make us do whatever they like.

As long as it’s not, you know, blatently illegal. At least we still have that...

Check comment# 31. Any pubbie trying to raise taxes will get primaried. Rats will be hit with another wave in November, IMHO, from which it will take a long time to recover, if ever.

48 posted on 06/29/2012 12:22:05 PM PDT by neverdem (Xin loi minh oi)
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To: alstewartfan

The Washington elite clearly wanted this case decided on the commerce clause argument. The Four Stooges wanted it. Obama wanted it. Nanzi barked, “Are you Serious?” to a reporter who suggested otherwise. Roberts threw it back into the political arena, where it belongs. It is not the court’s job to protect the voters from foolish political decisions, even reckless ones. That’s what the ballot box is for. The Tea Party drove the agenda in 2010 and tossed Nanzi out on her ass. This decision is a challenge to all of us to do the same to Obama and the rest of the statist scum that support him.


49 posted on 06/29/2012 12:50:53 PM PDT by joeystoy
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To: justiceseeker93; AdmSmith; AnonymousConservative; Berosus; bigheadfred; Bockscar; ColdOne; ...

Thanks justiceseeker93.


50 posted on 06/29/2012 4:06:00 PM PDT by SunkenCiv (https://secure.freerepublic.com/donate/)
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