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Posted on 07/05/2012 6:43:52 PM PDT by billflax
“A republic, if you can keep it.” Ben Franklin
Masked by chatter around judicial wrangling, electoral ramifications and how the surprising Obamacare decision impacts policy, many miss the wretched significance of Chief Justice Roberts’ twisted logic. He has empowered runaway government certain to incite chaos.
The Affordable Care Act reflects the logical continuation of a decades-long drift toward domineering by Washington over every facet of life. Not logical as in likely to succeed. Few government initiatives do. But logical because rather than scuttle past failures, subsequent congresses spawn new efforts to offset what prior funding merely squandered.
Taxpayers already footed over half America’s medical bills. Prior forays into socialized healthcare have capsized public budgets. Washington’s social spending routinely costs more, and accomplishes less, than the auspices under which the legislation passes. The shortcomings of government are obvious and predictable, which screams that these bureaucratic nightmares seek government dependency more than assisting the needy.
The brake on this zooming locomotive called government should be the rule of law. Western Civilization’s signature achievement was not democracy, advances in medicine, the arts or economic progress, but that laws prevail over lawgivers.
America epitomized this and thus flourished. With government checked, rights and property sacrosanct, America became an economic juggernaut. Alexander Hamilton cautioned, “Real liberty is neither found in despotism or the extremes of democracy.”At inception, the Founders disdained both democracy and monarchy, crafting instead a constitutional republic; the wellspring of freedom and prosperity.
The limiting agent on government cannot be the temporary passions of the crowd, easily bought by bread and circuses; nor subject to the self-aggrandizing whims of public officials, but the Constitution to which Caesar swears subservience. A document which clearly meant to restrain Washington’s reach.
(Excerpt) Read more at forbes.com ...
Thomas Jefferson, 1820.
But the remedy is right there in the plain English of the Constitution, if we can blow away the smokescreens of our priestly castes of lawyerly Mandarins:
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Yes, and elections won by those best prepared to pander and promise to those least likely to embrace American ideals.
I would go a step further and say not even elections, but bureaucracies redefining and selectively applying things to get their desired results (the Judiciary falls into that category, what with its sacred cow of precedence).
It is not Chief Justice Roberts who is at fault, but the congress and state legislatures long ago that gave us the Sixteenth Amendment. Once Congress was granted the power to tax incomes without restraints on the form of the tax (as, for instance, requiring it be levied as a fixed percentage of income regardless of source or amount, or forbidding the imposition of a higher rate of taxation on any class of persons on any basis other than the aggregate amount of income earned), the possibility of Congress doing exactly what it did in the Obamacare law — laying an income tax on one class of persons while exempting others has been constitutional.
I recall a story about the eminent mathematician Kurt Goedel, who when he was becoming a U.S. citizen in the late 1940’s was asked by the immigration judge whether the U.S. Constitution would permit the establishment of a Nazi-style tyranny. The more socially adept Einstein had to restrain Goedel from explaining exactly how a tyranny could, in fact be established, within the restraints of the Constitution. I wonder whether Pelosi and her crew of wreckers didn’t make the same discovery as Goedel in this regard. As both Daniel Webster and Chief Justice Marshall noted, the power to tax is the power to destroy, and tyrants wield destruction as their mode of rule.
Oh yeah?
Well you’re a racist.
-educated, well thought out liberal come back
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“”Per Roberts ruling, America’s defining principle is no longer laws, but elections.”
I would go a step further and say not even elections, but bureaucracies redefining and selectively applying things to get their desired results (the Judiciary falls into that category, what with its sacred cow of precedence). “
Precedence is how Federal Judges make law, it is the parchment upon which their orders extent to both the rest of the population and future generations.
The irony is this whole idea of precedence only exist as one of three parts of common law for fairness reasons, and is all but useless without the other two more important parts, written law, and community traditions(past practice).
Agreed; and that is why I hate precedence.
In fact, I really wish this law would be used against judges using precedence. Make them have to derive/justify their judgment directly from the Constitution, natural law, logic, and the law-as-written.
The irony is this whole idea of precedence only exist as one of three parts of common law for fairness reasons, and is all but useless without the other two more important parts, written law, and community traditions(past practice).
I'm not sure that's the case any more. I think that precedence is now the superior of the two, precisely because there are so many decisions handed around that a judge can basically say anything he wants.
Precedence is nothing more than the judiciary playing the children's game of 'Telephone' with your legal rights.
With regard to examining what the law is, courts should avoid using precedent except as a starting point for arguments, or else when necessary to resolve truly ambiguous cases. Since "court precedent" appears nowhere in the hierarchy of law described in the Constitution, it cannot form a legitimate justification for a ruling on what the law is. In particular, any precedent is going to either be inapplicable (if the present case differs too much from the earlier one), illegitimate (if the earlier case was decided incorrectly), or redundant (if the precedent reaches a conclusion that could also have been reached without it).
Consultation of precedent is, however, sometimes entirely legitimate once the court has determined what the law is and is considering how to apply it. In making such determinations, however, a court should recognize that the applicability of a precedent does not necessarily imply true legitimacy. For example, if the Supreme Court were to rule that a statute forbidding some activity was unconstitutional, and people then proceeded to engage in such activity, the finding that it was unconstitutional should not forever preclude the possibility of prosecuting all remotely-similar activities, but a defendant charged with activities similar to those the court deemed to be protected should have the right to cite the earlier court case as justification for his actions. Note that such a citation would not depend upon the legitimacy of the earlier ruling--merely the fact that the defendant had put a good-faith reliance upon it.
BTW, I think one of the biggest conceptual problems with "Constitutional Law" is that it presumes everything the Court has done is Constitutional, and thus the real meaning of the Constitution must be incredibly complicated and convoluted in order to justify all those rulings. What is needed is a Copernican shift, recognizing that all those tricky complexities have nothing to do with anything the Constitution actually says, and that when the Supreme Court makes a ruling which would be at odds with a simple straightforward reading of the Constitution, it is the Court, rather than the Constitution, which is wrong.
BTW, the official rules of Duplicate Contract Bridge define a number of infractions a player may commit, and the penalties therefor, but also explicitly specify that for a player to deliberately commit most types of infraction or subvert the rules is CHEATING, even if the specified penalty would be one the player would be willing to pay. Attempts by judges to distort languages to subvert the meaning of the Constitution and laws passed thereunder should be viewed likewise. An honest judge shouldn't ask "Is there some way in which the penalties imposed by this measure might conceivably be viewed as revenue-raising taxes rather than punitive fines", but instead should ask "Are they revenue-raising taxes rather than punitive fines". If the legislators themselves seem to think they're punitive fines, a judge shouldn't doubt it.
Thus, they often cross the line from being smart and intelligent, and from their real area of expertise into being "clever" for the sake of being thought of as ingenious.
Unfortunately, cleverness often comes at the expense of clarity, and the one main thing that people want and should expect from the courts, judges and "the law" in general is clarity.
What we have gotten from Chief Justice John Roberts was anything but clarity. In fact, with his "clever" decision, supposedly trying to show that the court is apolitical, he has single-handedly rewritten the un-Affordable Care Act from ObamaCareMandate into ObamaCareTax in such a way that all parties can argue and define what it means any way it fits them for any given purpose; he has rewritten the Constitution by granting the power to "tax" the non-activity (apparently creating entirely new and separate category of federal "taxation" which is different from the now "usual" income, sales and excise taxes - a "behavior tax"?); he has given huge new authority and powers to the Congress, the President and his bureaucracy and to the courts to "interpret" any law any which way they desire, with impunity, by abdicating the Supreme Court's responsibility of defending the citizens' freedoms and the purse by curtailing the natural tendency of the federal government to self-expand at the expense of citizenry.
Instead, like King Solomon, John Roberts "cleverly" decided to cut the political "baby" in half, and what he gave us was a stupefyingly discombobulating and muddled decision which will be abused as the precedent and fought over for decades - in other words, the exact opposite of clarity.
Telling the people that the Court can't save them from electing the "bad" government - in effect, blaming the people for "electing the government they deserve" - may have been his "clever" unofficial verdict on the merits or consequences of ObamaCare bill, but his decision to give it justification by rewriting it so it could "comply with Constitution" was contrary to the very ideal of Constitutional restraint on powers of the government.
U.S. citizens may have to live with Roberts' mucked up decision for a long time, his reputation will be mired in it forever.
I disagree with you here. In part because the story you allude to was actually a case of such clarity you previously mentioned: Solomon knew the real mother would show concern for the baby's well-being and the other would not, IOW it clearly determined the correct mother.
This decision is instead like threatening the clipping of its fingernails. It didn't place a limit on the commerce clause, like some say. It did throw everything about this law into a quantum state where the mandate is a tax/penalty/fine/rule/Scott Bacula depending on who's reading it, what time of day it is, and for what purpose the "law" is being examined for. The decision is only confusion and discord, words vomited onto paper, there is no rightness in it at all.
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