Written on Wednesday, April 11, 2012 by Nathaniel Davidson
For decades, liberals have had unopposed rule of the bureaucracies, media and educational institutions. One disadvantage, from their viewpoint, is rarely hearing a good conservative argument, as opposed to caricatures (just one recent case: VA school teacher thinks “Republicans are stupid” and “don’t care about anyone but wealthy people and businesses.” My only question is to the Republican mother complaining: why send your daughter to the Dem-run government schools in the first place?) Conversely, conservatives can’t help but become familiar with liberal arguments, and so are usually well prepared to refute them.
A good example is the recent battle over Obamacare at the Supreme Court. The best lawyers for the Obama administration,such as Donald Verrilli, tripped over themselves trying to answer legitimate conservative concerns. Now even liberals are admitting that he stumbled badly, although previously liberals had praised him for his ability and previous experience as “a veteran of 17 cases before the Supreme Court”.
The case hinges on the “Commerce Clause”, one of the enumerated powers that the Constitution grants to Congress: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In particular, it’s about the middle clause, the “Interstate Commerce Clause”.
Unfortunately, under the Depression-prolonging FDR, the Supreme Court made its third most disgraceful ruling ever: Wickard v. Filburn (1942). (#1 was Roe v Wade (1973), inventing a right to abortion at any stage in pregnancy for any reason; #2 was Dred Scott v. Sandford (1857), where the court under Democratic Chief Justice Roger Taney ruled that blacks were “so far inferior that they had no rights which the white man was bound to respect.”) To give the background: although people were starving, FDR’s government passed limits on how much wheat could be grown and ordered farmers to destroy “excess” crops, to keep the prices high. But farmer Roscoe Filburn grew wheat over the government limits for his personal use, not to sell on the market. It’s bad enough that the government prohibited him from selling on the market, but in this case, it went even further. By growing his own wheat, Filburn no longer needed to buy from the official wheat market.
Filburn won his case against the Government in the Federal District Court. But the Government appealed to the Supreme Court. The Court ruled against Filburn, on the grounds that Interstate Commerce was indeed affected if a farmer no longer needed to be part of it. So SCOTUS ordered Filburn to destroy the “excess” wheat and pay a fine.
This opened the floodgates for more and more Congressional control of our lives, including what lightbulbs we can use or how much water our toilets can flush. It was not until half a century later that SCOTUS finally put a limit on Congressional power, in United States v. Alfonso Lopez, Jr., (1995). Here, Lopez, a Grade-12 Student, carried an (unloaded) concealed weapon in violation of the federal Gun-Free School Zones Act of 1990. The Supreme Court, under Reagan Appointee, Chief Justice William Rehnquist, ruled that the Act exceeded Congress’ power. I.e. if they could regulate something this far removed from Commerce, then there was nothing it could not do.
As I discussed in a previous Patriot column, Over-ruling Obamacare and Judicial Activism, one judge, Reagan appointee Roger Vinson, has already ruled Obamacare unconstitutional. A key reason was: if Congress can mandate that you purchase health insurance, then there is nothing that it can’t force you to do. It could force you to buy and eat broccoli, for example. And from Supreme Court justices, why not cell phones to dial 911, or funeral plans for an obvious inevitability? Here, the likely “swing justice” Anthony Kennedy asked explicitly, “Can you identify any limits on the Commerce Clause?”
The point is, our founders intended the Federal Government to have limited powers, i.e. those enumerated. But if there are no limits, it becomes the very unlimited government that we fought against in 1776. This was one of Judge Vinson’s key points:
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
Reliably liberal Justice Stephen Breyer attempted to salvage the Government case by claiming that just by being born, one automatically joins the “market for health care.”But this just comes back to the main objection to Obamacare, if one enters a market just by being born, then there is nothing Congress can’t do. As plaintiffs’ lawyer Michael Carvinconvincingly pointed out, it would follow that Congress could regulate “every human activity from cradle to grave.”
Justice Samuel Alito, whose appointment to the Supreme court was probably President Bush Jr’s greatest accomplishment, also chided the Government for another duplicity: is it, or is it not, a tax?:
“[Solicitor] General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax. Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?”
It’s obvious that Obama himself was shocked at the unexpected (to him) rebuff his crowning “achievement” has received at the Supreme Court. He spouted:
“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Of course, this is rank hypocrisy from a President so fanatically dedicated to Roe v. Wade, which overturned abortion laws passed by “a strong majority” in a “strong majority” of states—46/50. He has also made it clear that he wants judges with “empathy”—that is, to liberal-favored groups—rather than to the Constitution or laws “passed by a strong majority.” Obama also has no problem with many other laws overturned by liberal judges, even fairly bipartisan laws such as those allowing school prayer.
It was also a lie: it was hardly a “strong majority”—despite Democrats having a 75-seat majority in the 435-member House, it passed by only seven votes, and without a single Republican vote. Obamacare also lacked wider democratic support—it was so unpopular that even the über-liberal Massachusetts sent a Republican, Scott Brown, back to the Senate in Teddy Kennedy’s old seat. Then in the Senate, it was passed only by the dubious underhanded method of “reconciliation”—thanks partly to Rick Santorum’s favorite candidate Arlen Specter.
Obama continued (I’m not sure that the “uhhs” were on his teleprompter):
“And I — I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint; that, uhhh, an unelected, uhhh, group of — of people would somehow overturn, uhhh, a duly constituted and — and passed, uh, law. Uh, well, uh, uh, is a good example. Uhh, and I’m pretty confident that this, — this court will recognize that, uh, and not take that step.”
Here he manages to distort the conservative argument. As a supposedly brilliant Constitutional Law expert, it’s hard to believe it wasn’t intentional. What we really object to, as explained in my previous column, is not striking down laws that violate the Constitution, as per its original meaning. Rather, we oppose judges legislating their own personal preferences, and pretending that they are in the “living constitution”. For example, Obama’s beloved Roe v. Wade, was based on “emanations and penumbras” on the bill of Rights, which legislators had overlooked for two centuries.
Obama’s bullying attack on the Supreme Court was really what was “unprecedented.” So much so that a Federal Appeals Court ordered Obama’s Justice Department to explain. As Mark Steyn warns in his column Our Contemptuous President:
“Oh, yes: the world’s all-time coldest wind chill. That’s what you’re going to be feeling at this point in an Obama second term. If you like his contempt for judicial review, parliamentary scrutiny, and representative democracy now, wait’ll you see how “flexible” he’ll get starting in January 2013.”
This is one reason we must vote for the Republican nominee!