Tribe: Judges Who Uphold Personal Liberty are "Confused"
Writing in yesterday's New York Times, Harvard's Laurence Tribe offers an impressive defense of Obamacare's constitutionality. Impressive, I mean, coming from a guy who has written entire books about how the Constitution's text is irrelevant.
But as a glimpse of the Left's evolving spin on Obamacare, it's a useful piece. First of all, Tribe continues the theme popularized by Michigan Judge Steeh that the New Deal cases on the Commerce Clause means that federal power extends not just to economic "activity" but to "economic decisions," including the decision not to purchase things. The notion that government coercion to purchase a particular type of insurance might implicate "personal liberty" is, says Tribe, a "confused assertion."
But the most startling thing about the article is the Tribe's claim that conservative jurists should refrain from: smuggl[ing] into the commerce clause an unenumerated federal “right” to opt out of the social contract. Get it? If SCOTUS votes to overturn Obamacare, they're playing fast-and-loose with the Constitution! They're just making up a new right!
I'm no ConLaw professor, but even I know that Congress has no general power to enforce the "social contract." And if Congress lacks the power to impose the individual mandate, then the Court has no need to invent a right. The point that is lost on Tribe, and perhaps the entire Harvard faculty, is that the burden is on the federal government to justify its use of power -- not on the People to find some "right" to resist the federal power.
How to drive this message home? Plaster Cambridge Mass. with billboards featuring the text of the Ninth and Tenth Amendments?
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Dec '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
I am unfamiliar with the concept of "enumerated rights" in the Constitution. I thought the Constitution had "enumerated powers" that limit the ability of the Federal government to interfere with the personal liberty of citizens. Is Tribe asserting that all rights not enumerated by the Constitution or the various State Constitutions don't exist?
Jun '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Call me stupid, Mr. Tribe, for behaving in a way that you think is socially irrational, but as an American, I have a right to be "stupid" as long as it does no damage to others. Take skydiving. You may think it's an irrational and unnecessary sport, but if I, and my poorly-packed parachute, don't land on you (or your gazebo) at 200 miles an hour, it's none of your business.
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Is it the mission of all law schools to give sophistry a bad name, or only ivy league schools?
Oct '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Behold the president's next judicial nominee...
Sep '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
I think O-care is ill-conceived, unconstitutional, as written and dangerous. However, if I understand it correctly it mandates that everyone get insurance and fines anyone who does not $600. It imposes no criminal or other civil penalties on people not obtaining insurance. If instead the bill had taxed everyone $600 and them issued a rebate to everyone who obtained insurance it would have the same effect and would not have the constitutional problems. This would make the bill only ill-conceived and dangerous. A central government that has been allowed to concentrate power to the extent Washington has will not let a mere constitution get in its way. Declaring the law unconstitutional may temporally plug a hole in the dyke. It will however not prevent the dyke from eventually collapsing. Only a return to federalist principles will do that.
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
That was a possibility once upon a time, until Tribe's letter to Obama re: Sotomayor was leaked, as I discussed here. His letter managed to trash three SCOTUS justices: Sotomayor (an intellectually inferior "bully"), Kennedy (open to manipulation), and Breyer (so dim that he can't manipulate Kennedy).
Not even Obama would nominate Tribe.
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Not sure I agree with that. What sort of tax would that have been? It wouldn't count as an excise tax (which must be uniform). It would seem to be a "direct tax," but then it would have to be apportioned based on population. I don't see how the Federal Govt can constitutionally levy a uniform "health care tax" even if it were subject to rebates.
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
All law schools, I'm afraid.
Oct '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Don't the law schools issue special glasses that filter out such undesirable messages???
Dec '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
raycon
Don't the law schools issue special glasses that filter out such undesirable messages??? · Feb 8 at 2:23pm
No, they just select students who've never worn special glasses like these.
Aug '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Hold on. I was unaware of any places where sophistry had a good name.
May '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Why do we indulge liberal BS? Insurance isn't even really a product. The product is health care, and insurance is a wager.
The fact that we consider insurance a solution in the realm of health care should annoy everyone. The problem with "health care" is "health insurance". The distinction between the two needs to be obvious and it needs to be constant. The reason the health care system is collapsing is that we are an insurance centric system... oh, and HIPPA.
Look at Mass., it's broken, and it's because everyone got "insurance" and they flooded the system demanding "care". The former cannot match the latter $ for $.
Dec '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Misthiocracy
Hold on. I was unaware of any places where sophistry had a good name. · Feb 8 at 2:41pm
Not The Daily Dish, that's for darn sure.
May '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
I'm been done with constitutional law. The government already makes laws that abridge freedom of speech, freedom of the press, and laws that "respect" an establishment of religion. And this only concerns the 1st Amendment. The 2nd Amendment is equally disregarded in many places. And the 9th and 10th Amendments may as well be airbrushed.
Dec '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Well, from what I've seen over the years, it may be because your IQ is too high.
The Constitution ain't long, it ain't complicated and it's in English.
I think we can all figure it out.
Dec '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
But have you ever had to quarter soldiers? Well you can thank Laurence Tribe for that, as I'm sure he'll tell you.
Dec '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
Adam Freedman
That was a possibility once upon a time, until Tribe's letter to Obama re: Sotomayor was leaked, as I discussed here. His letter managed to trash three SCOTUS justices: Sotomayor (an intellectually inferior "bully"), Kennedy (open to manipulation), and Breyer (so dim that he can't manipulate Kennedy).
Not even Obama would nominate Tribe. · Feb 8 at 2:04pm
Damn. Three for three. I wouldn't have expected as much from Tribe.
I really think Breyer is the stupidest person ever to sit on the bench. I saw him in a "debate" with Scalia and Scalia was incisive and brilliant but I was so struck at how idiotic Breyer was and how smug he was about it.
Aug '10
Re: Tribe: Judges Who Uphold Personal Liberty are "Confused"
AmishDude
But have you ever had to quarter soldiers? Well you can thank Laurence Tribe for that, as I'm sure he'll tell you. · Feb 8 at 4:54pm
Funny you should mention that:
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