Posted on 04/04/2012 10:51:02 AM PDT by SeekAndFind
You think the idea is laughable? Thomas Jefferson disagreed with you.
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Salmon Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.
During that period—which ran from the years after of the Civil War to the start of the 20th century—wealth became highly concentrated and corporations came to dominate American business.
At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent—a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and comprised an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.
All these ills were ultimately addressed by the federal government, but the strongest and most sustained resistance to fixing them came from the court. One exception was the great Justice Oliver Wendell Holmes, who argued that where economic regulations are at stake, judges must respect legislative decisions aimed at protecting society’s most vulnerable members. Our Constitution, Holmes famously wrote, does not enact social Darwinism. If the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.
That idea doesn’t appear to hold much water with the current court. Justice Clarence Thomas, in particular, has a well-known affinity for the values of the Gilded Age. But he has quietly gone from being an outlier to being only one of five consistently regressive votes.
The pattern began with the court’s 2007 decision in Gonzales v. Carhart, a case involving a rarely used, late-term abortion procedure. In holding that the government can prohibit abortion even where a woman’s life or health is at risk, the court overturned a decision that was not yet 10 years old.
To justify the ruling, Justice Anthony Kennedy—an ostensibly staunch believer in individual liberty—explained that some women who might otherwise undergo it would come to regret their decision. Ah, fickle women! Since Roe v. Wade the abortion debate has always involved male-dominated legislatures enacting laws telling women what they can and cannot do. The Roberts Court, it seems, is similarly not averse to helping protect women from themselves.
Also in 2007, the court ruled that a Seattle school district’s plan to achieve racial balance in its public schools was unconstitutional. Reasonable people can of course disagree about whether using race to arrive at a diverse student body is good policy or bad. But there is an unquestionable moral distinction between using race to encourage racial integration versus using race to keep the blacks away.
The latter is, of course, what the court allowed in 1896, when it upheld the so-called “separate but equal” doctrine in Plessy v. Ferguson. Justice Harlan famously dissented in Plessy, insisting that the Constitution is colorblind. In a perverse rhetorical move, Chief Justice John Roberts, writing for the court in the Seattle case, suggested that Harlan's phrase applies equally where the government is trying to promote the blending of the races rather than maintaining their separation.
And then came Citizens United, in which the court struck down a popularly supported, bipartisan effort to place limits on the ability of the wealthy to dominate political discourse. Income inequality is a fact of life in a capitalist system. But when it comes to choosing our elected representatives, the people are supposed to stand on equal footing. Your right to control your destiny by electing people who share your visions and values is not supposed to depend on the fatness of your wallet. But now, thanks to five justices, it does. In ruling that corporations have a First Amendment right that precludes Congress from regulating how much money they can spend to support political candidates or causes, the court propped up a regime where the voices of the wealthy drown out all the rest.
Each of these cases was decided by a 5-4 vote, along predictable and ideological lines. Each overturned comparatively recent precedent. Each paid obeisance to a 19th-century norm. And while any individual ruling can always be justified or explained away, a larger truth emerges ineluctably from the whole. A decision overturning the Affordable Care Act will fit snugly into this narrative.
The vacuity of the arguments against the health-care law has been well covered (see especially Akhil Amar’s analysis in Slate). I will add only two points.
First, Congress’s authority in passing the law rests on an elementary syllogism: You don't have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it. Liberty, like every other human and constitutional right, is not absolute. Under some circumstances, it can be regulated.
Which leads to the second point: critics of the health-care law say the only reason the rest of us have to pay for medical services used by people who have no money is that laws require hospitals to treat people who come in for emergencies regardless of their ability to pay. In other words, the critics say, the only reason there is a social cost—the only reason the syllogism works—is because of the underlying laws requiring hospitals to treat the poor.
Unlike silly examples involving broccoli and cell phones, that so-called “bootstrap” argument is sound. But here the critics drop their ideological mask as surely as the court dropped it in the Gonzales ruling. Their argument can be restated thusly: if you repeal laws requiring hospitals to treat the poor, you eliminate the constitutional basis for mandatory insurance coverage.
You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die. And if the Supreme Court strikes down the health-care law, that is exactly the ideology it will have to embrace. It will be saying that Congress cannot guarantee medical coverage for the poor and then implement a system to pay for it. In other words, the only people entitled to health care are the people who can afford it.
The last time the court went down this path, saner heads prevailed. Oliver Wendell Holmes’s view was historically and constitutionally correct, and the court finally acknowledged this in a pivotal 1937 case, West Coast Hotel v. Parish. In West Coast Hotel, the court ruled that the Constitution safeguards not just individual liberty but community interests as well; and in matters of economics, it is the legislature’s job to strike the appropriate balance between those two. If the Roberts Court overturns the Affordable Care Act, it will be mimicking the discredited court of 1935.
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
NO. But they're hoping that the "brain dead" and the "dim bulbs" among us believe and swallow every word.
Anyone with an actual functioning brain WILL see the difference.
Having those donations on your "permanent record" should be grounds enough to get you involuntary committed to your local crazy hospital.
If the Supreme Court finds Obama commie-care unconstitutional, they will want to "deem" the decision irrelevant and non-binding. The current administration will declare they will "support the will of the people" and Holder / Doug Shulman will send out enforcement letters, open investigations and indictments to all that object.
The way I see this undercurrent of a trial narrative, it will lead to a VERY ugly result.
This is an actual openly declared coup against the Judicial Branch by the Executive Branch via their introducing the narrative "Social progress cannot be held hostage by five unelected men." to the public and their lackeys, the Media.
He knows damn well that narrative will be picked up by his cult as well as the media and professed to be "the will of the people."
Right here is nothing less than the birth of a fascist Third World style dictatorship.
The other point that they seems to miss is that only LIABILITY insurance is required. This protects the OTHER GUY in case you damage him. The state does NOT require you to purchase COMPREHENSIVE, which would protect you. THAT would be equivalent to Obabma-care, and no state requires that.
I think probably a child. A college sophomore, by the level of argument.
He is mimicking his master, the trottel-in-chief, who thinks that justices must be elected to be legitimate.
And that is why , David Dow, that they are Supreme Court Justices and you are not.
They have constitutionally been nominated and approved by the Senate, so they are constitutional in being there. You have not, David, so your "opinion" is worth nothing in this decision process.
It is thier job to analuyze the law when it is brought forward to them (also by constitutional process) and then decide if it is or is not constitutional. As long as they do their job then what they decide is perfectly constitutional as the founders intended, whether you agree with it or not...whether this President agrees with it or not.
His efforts to abjectly influence the courts decision or one of the most galringly wrong things about this process...not the judges making a decision.
The one example you cited, which was acquitted in any case, was of a Judge trying to take power...in this case you have judges trying to prevent the usurpation of power through a potentially unconstitutional law.
Another very glaring inequity about this decision is that you have one justice on the bench, selected by this sitting President whose Health Care Program is being decided, who sat with that President before becoming a Justice and helped craft the law. Clearly she has a bias and yet has refuses to recruse herself from the proceedings as she should do by every legal and moral standard...and yet she does not.
Why do you ignore these glaring issues, David? It's because you yourself have a clear bias and constitutionality has nothing to do with it.
I see you don't follow the Dems mischief closely. Didn't you see Obama attack the court in the SOTU address over Citizen's United? They are absolutely vivid over that case and talk like they really believe it's treason.
And they are dregging up Bush vs Gore from 12 years ago too. That decision was problematic but 4 justices have been replaced since then so it's irrelevant.
This is the first time since Roosevelt that dems are scared of the SCOTUS.
Hear, hear!
His own "vacuous" argument - the state of being alive automatically incurs financial damages which the government must regulate...
It’s not just the SC, it’s all the circuit courts, appeals courts, and state courts.
For the benefit of the stupid sheep of the herd that follow him, he is laying the groundword so if SCOTUS shoots down Obamacare, he can then blame it on the Republican judges as the source that denied them medical coverage.
Thoughts please.
In other news on healthcare:
"Fathom the hypocrisy of a Government that requires every citizen to prove they are insured.......
But not everyone must prove they are a citizen."
-- Ben Stein
And this boys and girls explains why you really can’t, talk to a liberal.
My prediction as well, at most they will carve out the mandate, but I doubt if they will.
Hundreds of millions have already been spent implementing this monstrosity. They could have reached down and took this case before all the money was spent but they didn't, that should tell us something.
If by some wild fluke Romney gets elected president there will probably be Dem super majorities after 2014 and almost certainly after 2016 along with a rerun of the kenyan, either himself or another Soros nominee.
Here is where it all falls apart. Nobody has right to health care. The liability argument: I can't damage somebody when I get sick, unless I were to spread a communicable disease, which is crime anyway.
With all the public pressure you can bet the private Chicago pressure is also intense. How close to direct threats against Roberts et al’s families are they getting? Are they doing it with anonymous callers? That would be ineffective and the Chicago mob would know that. Conservatives get those all the time. So I am guessing known administration people are making direct threats, on the q.t, but direct. Along with the threats would necessarily be promises of benefits in Cayman banks or similar; offers they can’t refuse as it were.
I wouldn't go there. Govt run anything is never a good idea. You are conceding that Obamacare is a good idea? Are you nuts?
My listener understood what I meant.
“even if it is/was a good idea, the government doesn’t have the legal authority to do it”
If it was clearly constitutional, it wouldn't be before the Supreme Court. Is this author a lawyer? Or a constitutional professor? Even lawyers and constitutional educators cannot agree.
But it is clearly UNconstitutional, to me.
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