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A Supreme Disaster

“Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man?”  William Shakespeare 

These weren’t the first words that came to mind when I heard the Supreme Court’s ruling on Obamacare.  No, nothing that profound came immediately to mind.  Unfortunately, the first phrase I uttered, while driving an 18 wheeler through Scranton, was unprintable.  The second and much more memorable phrase I spoke was the one that immediately preceded the above quote from Henry VI, to wit: “The first thing we do, let’s kill all the lawyers.”  Of course, I would never seriously council or consider such a thing for any jurist, having as I do infinitely more consideration for their wellbeing than some of them manifestly have for the wellbeing of the Constitution.  

To be sure, there are some great people who practice law, and I’m happy to have many of them as friends.  There are days, however, when I fear that 95 percent of lawyers out there are giving the remaining 5 percent a bad reputation.  As we try to live and function in a society of ever increasing laws that do violence to our liberty; a society in which jurists have twisted and contorted the foundational law of the land into a grotesque and deformed thing, unrecognizable from its inception; a society whose legal system has metastasized into a colossal puzzle palace of technicalities and incomprehensible rules encoded in specialized gibberish that incorporates more Latin than a post Vatican II Catholic Mass; a society where justice is accidental to process; …we are entitled to ask how this madness came about?  

How is it in America that one lawyer on the Supreme Court can serenely disarm states of their sovereignty one day, return two days later to rob the individual of his, and fashion himself as the guardian of the Court’s credibility?  Since when did the Court’s credibility become synonymous with the number of nodding heads on the New York Times editorial board, or the number of obsequious kisses tendered by the MSNBC brain trust?   Or is this yet another case of an ostensible conservative “growing” in office, asserting his independence from orthodoxy and thereby establishing the independence of the judiciary before a President who might as well be smiling and asking Chief Justice Roberts, ”Who’s your daddy now?”   The only thing independent about  Roberts’ Rules in the last week of June 2012 is their relationship to the Constitution.  

Do the good offices of John Roberts mind have any windows?  To assert that regulating inactivity is on the one hand unconstitutional, but that taxing it as a means of coercion on the other hand is constitutional, is to ignore all practical implications.  Coming through the back door to accomplish that which would be impermissible through the front is precisely the sort of sophistic nonsense that has done immense damage to the reputation of the legal profession in general and has now tarnished the credibility of the Supreme Court itself.  

Even assuming that Obamacare is rendered obsolete by a Republican President and Congress next year, the highest court in the land has set a precedent that while the government may not order you to enter into a private contract, it may accomplish the same thing by penalizing you with taxes if you refuse.   Precedent, after all, is as difficult a thing to exorcise as a civil servant, hence the doctrine of Stare Decisis (once screwed, always screwed).  So while the Chief Justice might have thought himself clever for establishing concrete barriers to the Commerce Clause, he blew the doors off the taxing authority so that our Staries will be Decisised ad infinitum!  

But don’t worry, some on our side advise.  Friends whom I admire and whose opinions I respect, suggest that those of us who are appalled at this decision are over reacting.  “Dave, with all due respect, I think you have a ‘no mandate no-how’ view that colors every opinion you now write on this,” writes a wonderful friend and a true gentleman.  To which I respectfully reply that, yes, my refusal to be pushed around and bullied by an out of control government is yet another thing I have in common with Patrick Henry.  To have my activity regulated, or a lawful tax levied on purchases or the earnings for which I have labored is one thing, and is constitutional in some cases.  But to be ordered, by means of regulation or taxes and penalties, to enter into a private contract or to purchase a private product or service against my will, by virtue of my simple existence, is tyranny and I will not compromise with it, accommodate it, lend it the veneer of euphemism, nor counsel acquiescence to it.  I will instead fight it, mock it, and scorn it with every means at my disposal.  

“It is not our job to protect the people from the consequences of their political choices,” writes the Chief Justice in a sentence I found particularly galling.  A police officer might as well tell a battered woman, “It’s not my job to protect you from the consequence of your marital choices.”  Police officers understand that it is their job to enforce laws against domestic abuse.   The failure to uphold the Constitution on the grounds that to do so would, “…protect the people from the consequences of their political choices,” is nothing less than a moral abdication of a sacred oath.  Taken at face value, the statement would rubber stamp anything Congress passes.  So much for preserving the independence of the judiciary.  

And what are we to do when the government mandates our diet, or orders us to buy electric cars, or solar power for our homes under threat of a penalty or tax?  Evidently, the only thing that supersedes an act of Congress is a signed letter from John Roberts, but how likely are we to obtain that?  Pandora’s box is opened, and the only chance of a remedy is at the ballot box.  Perhaps, in addition to repealing Obamacare, a Republican President and Congress can be persuaded to enact a law reversing the enormous taxing authority granted under this ruling even as various states have enacted laws limiting the damage wrought by the ruinous Kelo decision of a few years earlier.  

So now, we perform triage.  The economy is hemorrhaging, our allies lose faith even as our adversaries gain courage and comfort from our self-emasculation, while at home our liberty reels from one kick after another.  That it all happens at the hands of a government that is supposed to serve the people is cruel irony indeed, but at the same time it provides us the means to recovery.  These people must be voted out in November.  We spoke with great resolve in 2010.  They didn’t listen.  We must roar in 2012.  And we must hold the politicians accountable, for they only get away with what we allow when we return them to office.  

Meanwhile, in an apparent effort to bolster the credibility of the Court in the salons of fashionable opinion, the Court has instead marginalized it’s credibility with the people who make America work and who have been steadfast against the usurpation of their liberty that Obamacare represented from the start.  No worries.  John Roberts may rest his clouded mind tonight, safe and secure in the knowledge that he is protected by the men and women of the Armed Forces who, for much less pay and at risk to their lives, have more of a commitment to their oath to defend the Constitution than he will ever understand.  

  1. Charles Mark

    Looking in from the outside I’ve always thought the politicisation of the US Supreme Court is a running sore that is bound to erupt every now and then. So you have the charade of nominees assuring Congress that they will be open-minded on controversial issues and then joining almost in lockstep on exactly the side you would have expected them to, based on their history. Except when they don’t, which then leads to much wailing and gnashing of teeth by the side which feels betrayed by “their man” -the ladies and one gentleman on the liberal side seem far more disciplined in their partisanship. And of course if the result had been 5-4 the other way the Democrats had their narrative in place, which would have overlooked the predictability of the votes of the liberal Judges. For my part I find the “It’s a tax!” rationale very odd to say the least, and I hope the politics play out badly for Obama. But the “string Roberts up” stuff bothers me. PS, Like many, I felt the game was up one way or the other after Arizona, because I lost faith in the prescience of the Supreme Court commentariat ,

  2. Nick Stuart

    “…while driving an 18 wheeler through Scranton…” Delivering a load of paper for Dunder-Mifflin? :-)

  3. David Holtkamp

    I love the way you write, Dave. Keep it up!

  4. Dave Carter
    C
    David Holtkamp: I love the way you write, Dave. Keep it up! · 2 minutes ago

    Thank you, sir.  But truth be told, I’d rather write about trucking.  But circumstances call for other topics, sometimes.  

  5. raycon and lindacon

    After over 50 years as a voter, and seeing my every vote, except Reagan, being a vain attempt to keep America, America, I seriously doubt that the ballot box is any longer the solution.

    Either we collapse under the weight of the socialist paradise, or we accept our lot to live in a tin shack beside the walls of the ruling class whom we serve with our sweat and our bitter tears.

    Call me extreme when I say welcome to Zimbabwe, but remember that when you resist, the guys with the guns will show no mercy.

    This is indeed the FERAL government of the DIS-United States of Amerika.

  6. Dave Carter
    C

    Raycon, I think we have one last shot in November.  Honestly, I think this is our last chance.  If we don’t get it right this time,..I fear you will be right, and I know that in this instance you’d rather be wrong.  

  7. mesquito

    Why am I more sanguine than most about all of this?  I’m not sure, but let me try to explain.

    I suppose it’s the idea that the Government Party wishes to accrue even more power to itself it must now, explicitly in the the legislation it advances, use the word “tax.” And Americans famously hate taxes, especially the knid the affect enough people to be fiscally meaningful.

    I’m also more sanguine because I realize that the federales slipped their Constitutional harness many many decades ago.  That being so, the only hope for restoration is popular government and elections, and that will be as messy and illogical as the growth of Leviathan  (I know, I know.  But maybe de Tocqueville was wrong.)  But by butressing the democratic branches the court is legitimizing future restoration through them, just as Presdident Marvelous has established some tasty War-On-Terror precedents for future non-leftist presidents.

    Add that to that all the politcal advantages that accrue to Republicans over the next few months and I am not a completely unhappy camper.

  8. RedRules

    I too believe this election is our last chance. Not to say that we will just collapse on Nov 21 if conservatives don’t take over the executive and legislature. But if we don’t take charge in November…. ** decisively**… I fear we will be on the down-slope with too much momentum to stop.

  9. Dave Carter
    C
    mesquito: Why am I more sanguine than most about all of this?  I’m not sure, but let me try to explain.

    I suppose it’s the idea that the Government Party wishes to accrue even more power to itself it must now, explicitly in the the legislation it advances, use the word “tax.” And Americans famously hate taxes, especially the knid the affect enough people to be fiscally meaningful. …

    Edited 1 minute ago

    The only problem, ..and I wish it weren’t so, is that the government didn’t have to use the word “tax” in Obamacare.  In fact, they went to great pains to say it wasn’t a tax, from the President all the way down to his Solicitor General.  They maintained it was a penalty.  It fell to the Chief Justice to call it a tax, and presto!  So the precedent is that they can call it a penalty, and the Court will call it a tax and approve it.  You say “tomato.”  They say “bulldozer,” and do what they want anyway.  

  10. mesquito

    Yeah dave.  But we get to call it a tax.  And in future legislation, when they get to the part where they must explicitly state the constitutional authority under which they are acting, they must either cite a (hopefully) shrinking commerce clause or they must admit their greed.

  11. Dave Carter
    C
    mesquito: Yeah dave.  But we get to call it a tax.  And in future legislation, when they get to the part where they must explicitly state the constitutional authority under which they are acting, they must either cite a (hopefully) shrinking commerce clause or they must admit their greed. · 2 minutes ago

    I hope you’re right.  Either way, we have our work cut out for us.  

  12. The King Prawn

    Strong and clear, Dave. However, I must dissent on one part. You wrote:

    “It is not our job to protect the people from the consequences of their political choices,”writes the Chief Justice in a sentence I found particularly galling.  A police officer might as well tell a battered woman,”It’s not my job to protect you from the consequence of your marital choices.”  [...] The failure to uphold the Constitution on the grounds that to do so would,”…protect the people from the consequences of their political choices,”is nothing less than a moral abdication of a sacred oath.

    If something is constitutional (and I’m not saying this is), then Roberts has the right attitude towards the court’s purpose. Our constitution only limits our government’s power; it does not increase its wisdom. It is up to us to do that by only entrusting government power to those least likely to turn it against us. Government can and will strain against its restraints. Only the power of a sovereign people can stand against it. We’ve been lax. We’ve abdicated our responsibility to be self governing. We either reclaim our birthright or tyranny endures forever.

  13. Dave Carter
    C

    I’m not sure we really disagree here, The King Prawn.  If Obamacare were really constitutional, then Roberts’ statement would be correct.  But if it isn’t constitutional,..and even Justice Kennedy could see that it isn’t, …then Roberts was subverting the court’s purpose in what I thought was a rather flippant manner.  

  14. The King Prawn

    Indeed. I cannot fault the man for wanting to do the right thing for the right reason. However, this was clearly the wrong thing and for the wrong reason. He laid out a perfect case for upholding very stupid laws that do not traverse the constitution then proceeded to find an unconstitutional law merely stupid, all in an effort to not sully the court’s reputation. I suppose our only recourses are to elect better representatives and senators and prove to the court we can be louder on behalf of the constitution than the left can be on behalf of the leviathan our constitution was intended to prevent.

  15. Thank you, Dave, for noting the role of lawyers in many of our problems today. (yes, yes, some of my best friends…). There is a reason for all of the jokes and warnings, throughout history, to stay out of court as much as you can. Commenters on Ricochet may not want to be rude as several of the editors, and I imagine commenters, are lawyers. My lawyer, who is a friend and a conservative, shows a definite lack creativity, and really just courage (entrepreneurship?) in discussing solutions. He would call it being pragmatic but I think just shows the way a lawyer is trained to think: often can’t see the forest for the trees.

    Also, I read an interesting little article called, Have We Reached the Tipping Point? And to quote a quote: 

    ‘…accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.’

  16. Doug Kimball

    I wonder what Roberts is now thinking.  His attempt to be Soloman has exposed him as just one more lawyer parsing the definition of “is.”  Conservatives are yes or no, right or wrong people.  We drown in the murky gray waters of nuance. 

    Indecision masked as compromise is cowardice.  Our court is meant to decide, not push the issue back into the public square.  As I’ve written before, it is in our court now.

  17. Aimee Jones
    Dave Carter

    “It is not our job to protect the people from the consequences of their political choices,”writes the Chief Justice in a sentence I found particularly galling.  A police officer might as well tell a battered woman,”It’s not my job to protect you from the consequence of your marital choices.”  

    Perfect analogy, Dave. That comment has been burning in my brain since Thursday, particularly since most of the “people” did not make a “choice” for this law but had it thrust upon us through questionably (I believe) legal, and dare I say, politically abusive means. 

  18. Gretchen

    Dave, I don’t disagree with a single word and I thank you for saying it . Your writing needs to reach a wider audience.

  19. Carver
    mesquito: Why am I more sanguine than most about all of this?  I’m not sure, but let me try to explain.

    I suppose it’s the idea that the Government Party wishes to accrue even more power to itself it must now, explicitly in the the legislation it advances, use the word “tax.” And Americans famously hate taxes, especially the kind the affect enough people to be fiscally meaningful…

    Except that there is a huge segment of the population (49% ?, 51%?) of that believes other people pay taxes for their benefit. Perhaps the Fair Tax looks a little better to people now. It does come with a provision to repeal the 16th.

    (edit) And note that along with, tax lawyers, accountants are the chief (vocal) opposition to the fair tax.

  20. The King Prawn

    And another thing…Roberts is being alternately praises and piked based on what is believed to be his motivation in ruling the way he did. As Matthew Franck points out, there is a third possibility. It remains entirely possible that he ruled exactly as he believes. There is no need to divine either a nefarious or clever motive for his ruling. Just accept that he really believes everything he wrote. If this is the case, then his constitutional scholarship should be impugned. Given the benefit of the doubt in this, the Chief Justice is to be pitied rather than scorned. I’m not certain which is the better scenario.

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