Roberts the Justice

by

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.

Advertisements

10 Responses to “Roberts the Justice”

  1. Jerry Says:

    When this great country falls, and it will, I pray Justis Roberts, suffers along with the rest of us in some way. But then again, he is upper crust and will be protected by the new King. Congradulations America! You are now Socialest’s. And most of you are happy about it. Well Im not! Viet Nam Vet who is Pissed

    • Jonathan Gardner Says:

      What did Chief Justice Roberts do to hurry our country along to destruction? He did exactly what his office demanded he do. He acted with honor and integrity by refusing to insert his personal political opinions, or even the political opinions of the people, into the law. He had the opportunity to make himself a king, but chose instead to be a servant to the people. We cannot have a rule by supreme court. We must always hope every supreme court justice understands his role in government and never dares to supersede it.

      We have had socialism for a long time. We’ve had it since Woodrow Wilson. We had it because the people asked for it, and have never seriously demanded we take it back.

      We should be working to convince people socialism is wrong and freedom is better, not waiting for the country to fall to pieces.

  2. TJ White Says:

    The problem with this column and Roberts’ ruling is that while it’s not Roberts’ job to correct BAD law, it’s also not his job to give “deference” to congress. Which, he openly admitted he did.

    A strict constructionist, as he maintains that he is, would recognize that while congress DOES have the power to levy taxes, the power to do so, within original intent, falls exclusively within the enumerated powers. It does NOT have the power to levy a tax for any purpose it wishes.

    The notion that he can recognize that government WITHHOLDING funds for purposes of instigating a specific reaction is coercive while maintaining that CONFISCATING them for the exact same purpose is illogical to say the least.

    Roberts’ essentially said that congress can make you do whatever it wants so long as the “penalty” is a tax, rather than a fine or imprisonment.

    The healthcare law, if congress and a different president had the will to do so, can be repealed. That much is correct. This decision, however, cannot. And it opens the door to something as bad or potentially even worse than Obamacare.

    • Jonathan Gardner Says:

      I honestly don’t understand why people like you are upset with this ruling. There are door that were already open that are now closed. There are some doors that were open that are still open. We are in a new era where congress does not have unlimited power, neither to regulate commerce or anything relating in any way to commerce, nor to tax.

      Reading the constitution for myself, the power of Congress to tax is unlimited, until the taxes become punitive. Maybe you can argue that the amendment forbidding slavery would prevent collecting taxes to give to another. I haven’t seen that argument made in front of the supreme court. Chief Justice Roberts was quite clear, however, that taxes have a limit.

      And I don’t think it’s wise to expect the Supreme Court to swoop in and save us from our congress. We have the power to vote people out, and we need to use that power more often. We can’t complain and moan because it’s hard.

      • TJ White Says:

        The power to tax is not unlimited, whether it becomes punitive or not.

        That may be how you read it, but that is NOT the original intent nor is it a strict constructionist view, which is what Roberts maintains that he is.

        There is MORE than enough writings out there from the founding fathers on the subject of taxation to contradict your unlimited until punitive position.

        I don’t expect SCOTUS to save ME from congress. I expect SCOTUS to save the CONSTITUTION from congress.

        Yes, we can vote congress out. We cannot, however, vote out a ruling from SCOTUS.

        Roberts, in a single justice ruling, has proclaimed that it is permissible to assess an INDIVIDUAL a tax for no reason other than not following a SUGGESTION of the government.

        He is talking out of both sides of his mouth. He is saying it’s not a mandate because it’s not punitive. Yet, he’s acknowleding that the only way to avoid the tax is to do what congress, not th eindividual wants.

        Sorry, but that DOES give congress unlimited power to tax.

        Congress decides it wants you to go out and buy a Volt under the premise that you using a gasoline powered car affects the cost of gasoline for everybody else.

        Don’t want one? Ok. Pay a 5% tax.

        Congress decides that it wants you to install solar panels under the premise that you using electricity from the grid affects the cost of electricity for everybody else.

        Can’t afford it? No problem. Just pay a 10% tax and we’ll call it even.

        Once you decide that congress has the authority to assess you a tax for doing nothing, you decide that congress has the authority to tax without limitation.

      • Jonathan Gardner Says:

        I was wondering when someone would call me on the unlimited power to tax. I read the constitution and these are the phrases that have something to do with taxes:

        Amendment 16: The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

        That’s pretty much it. The parts about direct (capitation) taxes being proportional has been removed.

        What limit is there in the constitution? None that I can see, insomuch as taxes are not punitive. I wish the constitution read differently, but it does not.

        The way the taxes you’ve invented works is simply this. Everyone pays a 5%, 10% tax, whatever. If you engage in the behaviors listed, you get a deduction. Congress has been doing this for a long time. It is wrong. It must stop. But it is constitutional and legal and binding and slavery. At least now we can tell people, “Obama raised taxes by umpteen billion dollars ON THE POOR.” That’s gold.

        We can influence the Supreme Court. There are 3 ways:

        1. Elect presidents and senators who choose wise judges. Don’t elect those who don’t. Impeach judges who are not wise. Why we tolerate Ginsburg and other people who cannot find the constitution for the life of them, I do not know. Political pressure can lead to their impeachment, damn convention.
        2. Write laws that limit the power of the courts. The court’s jurisdictions are determined by congress. It’s a rather easy matter to write a law, and then say, “The courts can’t rule on these issues of the law.” Or you create special courts for special laws, and stuff them with judges you agree with. Or you can wipe out entire courts that simply don’t work, like the 9th Circuit. Newt Gingrich popularized this idea, and it scares the bejeebers out of the liberals.
        3. Amend the constitution, or write laws that dictate how amendments are to be interpreted by the courts. You see, along with the power to setup the jurisdictions, you can put a little note in that says, “When the constitution says ‘X’, it means ‘X’. If a judge decides it really means ‘Y’, impeach.

        The courts have checks and balances over their heads. It’s up to congress and the president to be brave enough to use them.

        Our job is to change voter’s hearts and minds, make sure our voters show up and theirs don’t. This power is enough to change everything. It is even enough to get us an entirely new constitution. When a court or a president or a congress sets itself up against the people, it does not last long, no matter how righteous they think they are.

      • TJ White Says:

        I wanted to follow up on this comment of yours in particular…

        “Reading the constitution for myself, the power of Congress to tax is unlimited, until the taxes become punitive.”

        First of all, ALL taxes are punitive. They ALL impose a financial consequence on an action that has not been deemed illegal.

        That is why they were very specific in stating that the power of taxation could ONLY be used for the enumerated powers of government.

        If you have any doubt about that, I highly suggest you read Federalist #41 where Madison talks at length about the very subject we are discussing.

        “Some who have not denied the necessity of the power of taxation have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,”amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. ”

        Sound vaguely familiar?

        Madison’s response to this notion is too lengthy to be posted here. But, he flat out rejects it and is very specific as to why this assertion is false.

        As it applies to this specific matter before the court, the moment that Roberts correctly rejected the notion that this issue fell under the provisions of the commerce clause is the moment he SHOULD have rejected the notion that congress had the authority to associate a tax with it.

        In failing to do so, he sets a precedent that says that while congress apparently doesn’t have the authority to deny funds for coercive reasons, it does have the authority to confiscate them for coercive reasons.

        In direct violation of the constitution and the stated intent of the taxation power.

      • Jonathan Gardner Says:

        I will not deny that the reading of the constitution in Madison’s time, the reading which I wish were law today, would make the Obamacare / ObamaTax bill DOA. Understanding what mechanisms would kill it will help you understand why I agree with Robert’s ruling.

        1. The people would refuse to obey. We are under no obligation to obey laws that are unconstitutional. In reality, it is up to the government, which is congress, the president, and the courts, to convince us otherwise. If one of us were brought to a jury trial, which all criminal trials must be under the constitution, jury nullification would save all honest people.
        2. The states would refuse to obey. Keep in mind that we are a federation of states, bound by a federal government. Abraham Lincoln and the republican party did a lot to change the general sentiment here, and the 17th Amendment needs to be repealed to restore states to their rightful position in our government, but the fact remains that the government cannot compel the states to do things unless they can first convince them that it is within their jurisdiction.

        Understanding that I agree with you, and your interpretation of the constitution, let me now wind you to reality.

        1. The vast majority of Americans were raised under Papa or Mama government. You or I understand where our rights come from, but too many among us do not, and look to the federal government to right all wrongs. They believe that the president has more powers than any king of England ever had. They think he can create wealth from nothing and change the laws of nature. Try to talk to a WWII vet about Social Security, tell him the truth about what happened and tell me how many bullet holes you end up with. This is a sad, sad fact. The same power of persuasion that got us into this mess must be used to get us out of it, not arbitrary decisions by a Supreme Court that the people would reject.
        2. The states have become enslaved to the federal government. You can tell because even under the extreme conditions of the education bill that Bush passed, states like Utah dare not opt out of the program. As long as this condition prevails, the Supreme Court can do nothing to change it.

        You have to understand what we’re dealing with here. Think of us like Moses, who understand the potential of the people of Israel, who win a hands-down white-knuckle fight with the strongest powers of earth, and who pull the people of Israel out of Egypt. Guess what? They’re not ready yet. They can’t accept the gift of freedom, because they don’t know what to do with it. They would rather be slaves than free. So you have to teach them, one by one, and wean them off of the teat of government, and help them understand, one by one, the power that is in their heads and hands.

        We’ve come a long way. Think of what has happened to our society since Reagan. Nowadays, if you want to get rich, you do so by inventing something people want, that would make everyone’s lives easier, especially the poor. The majority of the people have stock in the stock market, when before the 80’s, only the elite had access to that wonderful mechanism. We own our retirements more than we ever have.

        Chief Justice Roberts did the right thing. He could’ve ruled like a John Jay would’ve, and said, “What idiocy is in this bill! We should draw and quarter everyone who put their names on it because it is a gross violation of all the principles upon which our country stands.” But what good would’ve come from that? We need to win elections, we need to convince voters, one by one, to vote for the guys who promise to cut the budget and free the people from slavery. We need to win the arguments in our homes and our offices and on the streets and on the TV and on the internet. By reframing the discussion as he has, by stretching the constitution to make it fit, we are now in the most ideal position imaginable.

        It’s up to us, you and me and everyone like us, to teach our fellow creatures how to be free. It’s up to us, not Chief Justice Roberts, to change the political tone of our country, so that the people in congress represent our interests rather than special interests. We have the power, Chief Justice Roberts and all the Supreme Courts and all the presidents or congressmen or senators combined cannot do it, cannot even begin to do it.

        We have got to stop looking to men to change things for us, else we suffer from the same slavery from which we wish to be free. We have to rely on ourselves and our God, and that’s it.

  3. TJ White Says:

    You have actually proven my point about Roberts. Roberts CLAIMED, during his confirmation hearing, to be a strict constructionist. Somebody who read the constitution as it was intended, not as it has been interpreted.

    This ruling proves that he clearly lied.

    Even IF you look past the fact that the 16th Amendment was ILLEGALLY ratified, it still doesn’t change the fact that his ruling defies logic.

    Go back to the debates between Obama and Clinton for the Democrat nomination. This exact subject of an individual mandate came up. Stephanopolis specifically asked about punitive measures to enforce an individual mandate and the concept of using the tax code to enforce it was brought up then.

    The tax is a penalty. They have even said, in public, SEVERAL TIMES, that the tax wasn’t a tax but rather a penalty.

    But, again, even IF you ignore whether or not the tax was constitutional because it wasn’t punitive, the mandate wasn’t.

    His opinion was that the mandate didn’t exist because, absent a fine that no punishment existed.

    THAT’S NOT HIS JOB.

    His job is NOT to determine whether or not the punishment fit the crime.

    His job was to determine whether or not congress had the authority to make NOT doing something a crime to begin with.

    His ruling declares that congress has the right ot make ANYTHING a crime so long as the fee for doing so gets paid to the tax man rather than to the court.

    HE even called it a penalty. He simply stated that the penalty fit the criteria for a tax.

    So, by his ruling, once again, congress can make ANYTHING illegal now, so long as the penalty fits the criteria for a tax.

    I’m really not sure what part of that you aren’t grasping.

    Further, he’s right, it’s NOT his job to correct bad law.

    Then WHY DID HE?

    6 of the 9 judges agreed that the expansion of medicaid was unconstitutional due to the fact that withholding federal funds to induce it was coercive.

    There was no severability clause in the bill. That fact was brought up mandate and Roberts chose not to address it because the mandate was ruled constitutional.

    So, not only is a severability clause, itself, unconstitutional, as there is NOTHING in the constitution that grants ANY court the right of either writing or re-writing legislation nor congress the power to advocate it, there wasn’t even one included in this bill. So, Roberts CHOSE to insert one.

    Once the expansion of medicaid was ruled unconstitutional, the matter should have been done. Case closed. Bill unconstitutional.

    Whether or not the mandate was shouldn’t have mattered.

    So, his ruling is STILL wrong.

    Now, in theory, you’re correct. It IS possible for congress to remove him from the bench and vacate this ruling.

    It is possible for congress to remove Ginsberg from the bench for admitting that she considers international law when the constitution affords her no opportunity to uphold or strike down something.

    It’s always been possible. It’s always been warranted. Yet, at no point in this nation’s history has it ever happened.

    And, in the last 40 years, only ONE candidate for ANY office has ever proclaimed that he would seek to remove judges from the bench that didn’t adhere to the constitution. And, that candidate STILL wasn’t talking about SCOTUS.

    So, if it’s reality that you’re looking for, it’s that the American people will NEVER be given the opportunity to vote for somebody who will vacate this ruling because such a candidate will NEVER exist.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: