Sinners In the Hands of Anthony Kennedy

Yesterday the left descended into madness. The madness came early in the day. It happened shortly after 10 o’clock in the morning. Justice Anthony Kennedy opened his mouth and uttered his first question on the issue of the individual mandate. He asked, “Can you create commerce in order to regulate it?” The question, the second asked yesterday morning, bothered the left.

As the clock approached 11, Kennedy spoke again, sending shockwaves through the legal community. He stated matter of factly,

the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

It was the quote heard round the world. It is what the tea party movement, libertarians, conservatives, and so many private citizens have been saying. It was an expression of what every legal scholar on television has pooh-poohed as the troglodyte rhetoric of plebeians not educated enough to understand their own founding compact.

That Justice Kennedy expressed something so obvious to so many Americans that so many well educated legal analysts have mocked for two years as an outmoded view of the constitution put forward only by hicks, rubes, and the racist middle class tea partiers not cool enough to defecate on police cars like the Occupy Wall Street hipsters should deeply, deeply trouble every radio station, newspaper, and television news network along with the American people.

Just how out of touch are the people the news media relies on as legal experts used to help form both their and their audiences’ opinions? More so, is it not abundantly obvious that legal experts let their own partisanship shape their opinions?

All of this, however, overshadows a more important issue — how the hell did a constitutional, democratic republic come to depend on the whims of one man in a black robe who nobody ever elected to anything?

Two years ago, Jan Crawford of CBS News noted the President, in his State of the Union, deviating from modern precedent in those speeches to lash out at the United States Supreme Court.

Mr. Obama, for the first time in modern history, took a direct shot at the Supreme Court in his State of the Union address, when he slammed the justices for their recent campaign finance reform decision. Six of them looked on — including the author of the opinion, key swing vote Anthony Kennedy — while Democrats jumped up to whoop and holler.

Shortly thereafter the Democrats, without a single Republican vote, passed Obamacare.

That Justice Kennedy yesterday raised a point that has been raised by so many non-lawyers is irrelevant to how the Supreme Court rules. All that is relevant is the President’s insult two years ago. Why?

This morning the New York Times reports that “many legal scholars, including some conservatives, have been predicting that the Supreme Court will uphold the 2010 health care overhaul.” In a profile of Randy Barnett yesterday in the New York Times, the paper reported there as well that “many of his [Randy Barnett's] colleagues, on both the left and the right, dismissed the idea [that Obamacare is unconstitutional] as ridiculous — and still do.”

Legal scholars the media pays attention to — who are typically on the left — all thought that, based on their jurisprudential biases, Obamacare would be constitutional. Justice Kennedy, raising the same point raised by so many on the right going back to the 1990′s when Republicans originally suggested the individual mandate as an alternative to Hillarycare (yes, many conservatives and libertarians opposed it then too), stunned the legal community today because he deviated from a liberal echo chamber.

Consequently, his deviation can only be explained away by partisan politics, not legal jurisprudence. That so many liberal legal scholars disagree with Kennedy is proof he is a partisan. Already the White House and Democratic operatives are screeching that this is just like Bush vs. Gore all over again. They do not presume that the liberal justices are partisan — only the conservatives. It is an argument designed by the left to cook the books in their favor, but they miss one thing. A sizable majority of Americans agree with Justice Kennedy. They are also not helped by widespread agreement on the left and right today that the Solicitor General of the United States had an atrocious performance and Paul Clement, arguing for the states, hit every ball out of the park assisted by some terribly insipid questioning from Sonia Sotomayor.

As partisans on the left start screaming that the conservatives have politicized the federal bench in a way they did not by attacking Robert Bork or some such nonsense, they ignore both their partisan attacks on Robert Bork, Clarence Thomas, etc. and their intellectually dishonest legal progeny derived from Roe vs. Wade. That case, still a source of conflict in America, is no longer even defending as intellectually rigorous by Justice Ruth Bader Ginsberg. She may like its holding, but not how that holding was reasoned.

Every time the left wins an argument expanding the meaning of the constitution, the Court somehow got it right. Every time the left loses an argument over the constitution, the Court somehow became politicized. And while the right says the same on the opposite cases there is a fundamental difference.

The right’s position on constitutional jurisprudence boiled down to its essence is that every man and woman in America should be able to read the constitution and have a fair understanding of it and how government is supposed to work. One cannot read the constitution and legitimately understand exactly how an abortion right is extrapolated out of the Bill of Rights. Likewise, one cannot read the constitution and understand how a Congress of limited powers can compel any person to purchase a product he does not want.

But liberal legal scholars so stunned at Justice Kennedy’s point favor a constitution where the public must hire them and their brethren to bow before men and women in black robes offering up prayers and petitions that the black robed masters divine from the text of the constitution some new right or government power no man on the street can see.

We have complicated our tax code, our regulations, and our legal system. In each we must now pay self-appointed experts trained in the art of gobbledegook to parse words, divine intent, and lobby for exceptions that prove rules.

Our nation is no longer a nation of laws, but a nation of elites who interpret those laws for us. It has all led to a very logical place.

In placing our constitution in the hands of a black robed elite who can divine from thin air powers, rights, and duties neither contemplated nor easily extrapolated from the constitution, our republic has become a kingdom. Our king is Anthony Kennedy. Every argument advanced is advanced with him in mind. On every major issue he is the decisive vote.

Put bluntly, the constitutional integrity of our republic has been ceded to one man in the third branch of our federal government. It makes him more powerful than the democratically elected Congress and President. It is not a sign that our system is too partisan. It is a sign that our system is broken in a fundamental way.

But the dirty little secret is that while legal experts and scholars may agree the system is broken, they only think so when Anthony Kennedy disagrees with them.

Put bluntly, the constitutional integrity of our republic has been ceded to one man in the third branch of our federal government.”

I have often said this. And it is worse than that: this one man was appointed decades ago; he has never run for any office - not even City Council. Many don’t know his name and of those that do know his name wouldn’t recognize him if he were to talk into the room. And he gets to serve for life.

This is a problem.

Yes, I know some will think of this as being radical...

I go off on musings like this also, so I don't think it is radical. When Obama said that he wanted to make it so that we didn't have to spend so much on gas, rather than saying he wanted the price of gas to be lower, my first thought was that they would start to dictate how close you had to live to your place of work or impose severe fines if your commute was too long. I really would not put that past these people.

Yes, I know some will think of this as being radical,

No, you are making perfect sense. This is exactly what will happen. You can argue that everything we do affects our health & therefore the government will have the ability to control everything. When the government gives you money, there are strings attached. When healthcare is via the government, there will be major strings. As an example, think of the Leftist agenda ... population control being one of them .... we will eventually end up like China with a one child law, if you are even able to have children .... It boggles my mind the folks that think Obamacare is just wonderful .... we should all be in the streets demanding that it be repealed & ready to fight for this if necessary because it is going to change our lives to that of government slaves and America as it was founded will be no more.

IMO EVERY ACT committed by Obama has been manifest in calculated prosecution of his Goal to fundamentally change America. To make the USA a reflection of the Failed soviet Communist system— and no more exceptional —nor capable of
world leadership than any of the European systems now threatened by Islamic Caliphate. IF Obama can succeed in his “change” with the help of a Congress that prepared for his ascendancy to the “highest Office” one he is NOT Constitutionally qualified to hold. With help of a Judiciary that acted as if defending a college chum was more important than supporting the US Constitution. with help from the “useful idiots” who were perhaps beguiled by the opportunity to be part of the historic vote for our “first Black President” and his promise of “change” Just how is that hopey changey thingy working out for you America? As his community organizers whip up the masses in their chants “No Justice—No Peace”

Congress has ceased using its constitutional powers, as most of them have become careerists more interested in re-election than in exercising power. It's just easier for Congress to pass the buck to the executive and (especially) judicial branches on tough issues.

But that doesn't change where the Constitution quite intentionally put the power, in Congress.

That is what congress did with health care, they ceded their legislative power to the executive "rule making authority."

I'll quote from William Blackstone's Commentaries, a book every lawyer had to know by heart to be admitted to the bar before the progressive era.

In all tyrannical governments the supreme magistracy, or the right both of making and of enforcing the laws, is vested in one and the same man, or one and the same body of men; and wherever these two powers are united together, there can be no public liberty. The magistrate many enact tyrannical laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of justice, with all the power which he as legislator thinks proper to give himself. But, where the legislative and executive authority are in distinct hands, the former will take care not to entrust the latter with so large a power, as may tend to the subversion of it's own independence, and therewith of the liberty of the subject.

Remember this? I wouldn't worry about Kennedy. But this proves that Obama is stupid. Making an enemy of the USSC swing vote for no good reason.

[Article] Likewise, one cannot read the constitution and understand how a Congress of limited powers can compel any person to purchase a product he does not want.

Actually, one can -- because in Article I, the Constitution does that when it gives Congress the responsibility and power of directing how the Militia should be armed and trained, and the States the naming of the Militia's officer corps.

That may be the only instance of Congress receiving the power to direct citizens to purchase equipment (spelt out in the Militia Acts of 1792 and 1795). The Militia Act(s), however, did not penalize men too poor to own a firelock, but made alternative provisions for their arming, however humbly.

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