As you no doubt heard, Obamacare has been ruled constitution by Chief Justice Roberts, which offset Justice Kennedy’s unconstitutional vote and made it law.
His reasoning is not simple or terse. Lawyers at Power Line Blog are analyzing it as we speak. Some of the initial analysis is already enlightening.
Chief Justice Roberts did exactly what I would like all justices to do. The Supreme Court is not where we settle our society’s problems. It is to be used, exclusively, to sort cases out and apply the law fairly to all.
I am one of those who still believe that Marbury vs. Madison was wrongly decided. Meaning, the power to decide what is or is not constitutional is in each of the components of the federal government, the people, and the states. They are to use their powers to enforce their view over all the others, which powers have been carefully allocated to ensure one cannot exceed the bounds to the detriment of the other.
This case is Chief Justice Roberts doing exactly that. He said, “There is an argument that makes the law constitutional, and people who would disobey the law won’t be able to hide behind the constitution because of it.” Then he described how one could navigate constitutional law. The navigable route is simply that Obama passed a massive tax increase with a loophole for those who buy health insurance that makes the IRS happy. This will surely be a scarlet letter during the upcoming election, but that is not why I like this decision. I like it because it makes sense. Yes, it is a tax, I admitted it, many others did, despite the fact Obama and all the other constitutional lawyers on the left denied it.
I believe that the president, the congress, the states, and the people should use the constitutional argument to shut each other down. If congress believes something is unconstitutional, they should not expect some other part of government to overturn it. They should realize they are the first and last bulwark of what is constitutional or not, and what becomes law in our country or not.
As such, it is up to us, the people, to choose representatives, senators, governors, and presidents who agree with us about our interpretation of the constitution, and are willing to fight (with their constitutional power) to defend it.
If the Supreme Court had acted with such prudence before the Civil War when they heard the case of Dredd Scott, I don’t think we would’ve had a Civil War. Recall that it was the Supreme Court that imposed slavery on the Northern states. Before the Dred Scott decision, a Southerner dare not take their slaves into free states, because the free states did not recognize slavery according to law. Although this was annoying to Southerners, and although it meant that slaves were slipping out of the Southern states into the North, it was hardly a reason to go to war. Many countries exist side-by-side with rules that harm the other without war. Besides, the importation of slaves was already banned, meaning that what slaves were bought or sold were either already slaves or born into it in the South.
There was an amicable resolution to the slavery question, one which a particular candidate for president advocated before he was murdered. It was simply this: ban slavery everywhere, by buying the slaves from the South with federal monies and freeing them. With no slaves imported and no existing slaves, the institution would end without a single tear shed.
The question of abortion is another instance where the Supreme Court went to far. The reasoning behind it was a new invented right that the constitutional subtext supposes to exist. Since people are private in their papers, then that means we can’t search inside women’s wombs to see if they are with child or not, and so we can’t have laws anywhere in the country that forbid the slaughter of unborn children, regardless of when a child is consider to be a living person under the law. How the one is connected to the other has never been explained, since it cannot be explained. As a child, I did not understand it. As an adult, it is the kind of logic that wants to make me scream.
If you are one of those sort who despise Roberts for ruling against freedom and liberty and for government largess, I beg you to reconsider. His job is not to create government in the way he sees fit. Any justice that believes that is their job should be impeached immediately. His job is simply to read the law and the constitution and do his best to reconcile them in specific cases. What more could we want in a justice? To give them anything more is to create an absolute oligarchy, a rule by justices.On the other hand, if you have become a newfound fan of Roberts because he has sided with your cause, I beg you to reconsider. Today’s friend will be tomorrow’s foe, because it is not allegiance to one side or the other that caused him to write his opinion in that way.
I would like to crawl inside the mind of Scalia and Thomas. Unfortunately, Justice Kennedy wrote that decision. I am left to imagine what they were thinking. Their argument hinges on the fact that it was not a tax. I would like to know why they say it is not, because to me, it was and is a tax.
Gratefully, the “other” four justices wrote their decision separately from Roberts, arguing that the commerce clause empowers the federal government to do whatever it wishes, damn the people. To them, the government could mandate we all worship golden calves, or make slaves one of another, because the commerce clause empowers the government to do so. They have never implied there is a limit, and their decision today reflects this. I am grateful because they are honestly telling the American people what they stand for. Now, the American people can tell their senators they want more like Roberts, and less like Sotomayor or Ginsburg.
So at least there is good news today. 5 to 4, the Supreme Court ruled that there are limits on government despite the commerce clause. One of those limits is mandating the purchase of something. This is something that hasn’t happened, ever, as far as I can see. We are now entering in new territory, territory where the Supreme Court will not go along with anything congress says simply because they utter the magic phrase “commerce clause”. This is truly a turning point.