Skip to comments.Mark Steyn: A lie makes Obamacare legal
Posted on 06/29/2012 10:19:24 AM PDT by listenhillary
Three months ago, I quoted George Jonas on the 30th anniversary of Canada's ghastly "Charter of Rights and Freedoms": "There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself," wrote Jonas. "It's as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them."
For longer than one might have expected, the U.S. Constitution was a happy exception to that general rule until, that is, the contortions required to reconcile a republic of limited government with the ambitions of statism rendered U.S. constitutionalism increasingly absurd.
(Excerpt) Read more at ocregister.com ...
If you have read my post on this subject on another thread today, then just skip the following, but It is relevant to this discussion, inasmuch as yesterday's decision makes knowledge and understanding among "the People" essential to liberty for future generations.
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. 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
Thanks for the post.
This is the most brilliant and succinct summary I have read regarding this decision.
It went on life support on January 20, 2009 when a usurper was sworn in (twice). Yesterday, Roberts pulled the plug.
Love Steyn but he must be kidding. It's never been clearer to me that it is not "down to the people", it never has been. We get to choose between the sponsor of Obamacare or the sponsor of the Romneycare. We have no idea who the hell the authors are and we can be assured that though there may be great philosophical distinctions between the
justices demigods they nominate, there will be absolutely no difference when it comes down to our liberty!
Heh, heh, heh.......
The Healthcare decision says that states cannot be coerced into providing coverage for their poor uninsured in a punitive way, but INDIVDUALS within that state CAN be coerced into purchasing insurance coverage, in a punitive way.
Isn’t there a dichotomy here, in this reasoning?
The feds never would admit that withholding highway funding or FEMA aid could ever be construed as punitive.
From what I understand.
The poor (130% of poverty level) are supposed to go on Medicaid and they are not subject to penalties at all. If states do not accept the additional Medicaid funding to allow the poor access to “free Healthcare”, the poor cannot be penalized for not having insurance.
The working poor that do not meet the Medicaid guidelines cannot be penalized if the cheapest policy is greater than 8% of their adjusted gross income. If there is a plan that they can get and it is less than the 8% and they fail to do so, they can be penalized. It would likely just reduce the redistribution “bonus” earned income tax credit and they will get a smaller “refund” check when they file their taxes.
Coming soon: New legislation states all conservatives to be castrated under ObamaCare/RobertsTax. Roberts claims it is not a violation of the legislatures enumerated powers, "it is just a testicle tax".
And yet I wonder... would even that be enough to get people stirred up and bloodshed mad?
"I have great respect for George Will, but his assertion that the Supreme Court decision is a "huge victory" that will "help revive a venerable tradition" of "viewing congressional actions with a skeptical constitutional squint" and lead to a "sharpening" of "many Americans' constitutional consciousness" is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel. "
Extortion, you mean. And since it would cross multiple state lines could be considered both federal and criminal. And because there'd be at least 48 instances of it: possibly violative of RICO... but that is assuming, of course, that the federal government is actually capable of doing something illegal; Fast & Furious is proof enough that the mere act of the Federal government doing it makes it legal -- I mean otherwise it would be: 1) the violation of export laws, 2) the violation of treaty w/ Mexico, 3) an unauthorized act of war against Mexico, 4) state sponsored terrorism, and 5) treason.
But, F&F is obviously none of those; why if it were that would prove that the government has huge amounts of corruption. And America is the least corrupt government on Earth, by virtue of being in America!
Roberts claims it is not a violation of the legislatures enumerated powers, "it is just a testicle tax".
Coming soon? It seems the R's have been paying this tax for many years!
Brilliant. As always.
Conservatives had about six opportunities to unite behind a non-Romney over most of a year. We refused to do so. We have nobody to blame for this but ourselves.
“...I agree to this Constitution, with all its faults, if they are such... and believe further, that this is likely to be well-administered for a course of years, and can only end in despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic government, being incapable of any other...”
Benjamin Franklin, 1787, urging the adoption of the US Constitution.
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