Chief Justice John Roberts is rapidly becoming my least favorite U.S. Supreme Court Justice in history. First, in 2007, the debut innovation of “the Roberts Court” was Bell Atlantic v. Twombly, then a followup kick in the face of freedom under the name of Ashcroft v. Iqbal and now this week (on Monday, June 25, 2012) Arizona v. United States (Arizona v US) and, today Thursday, June 28, 2012, yet another day that will live in infamy: NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. KAREN SEBELIUS, SECRETARY OF HEALTH & HUMAN SERVICES (NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al v SEBELIUS SECRETARY OF HEALTH).
It’s been a really bad week for the Constitution and for the American people, and a very good day for Obama’s flourishing Dictatorship of the Proletariat. Oh yes, and what a nice present for Hillary Clinton as she celebrates lasting longer as U.S. Secretary of State than any other of the 96 individuals to hold that office—and we were all sure she was just a joke back in the early 1990s when she was pushing a National Health Care System which looked an awful lot like what we’ve got now with Obamacare.
First with regard to Arizona v. US: The expansion of the American Police State seems never-ending, as the late great Strom Thurmond’s States-Rights Democratic Party Platform very accurately predicted in 1948. The great triumph of the Civil Rights Movement in the United States over the past 64 years is quite simply this: all oppressive acts of government, so long as they are applied equally to White people as well as Blacks, Hispanics, Asians, and all others without Racial, and only with Economic and Political, Prejudice, will be upheld. But try asserting any constitutional right other than your right to be on an equal footing with all other slaves, and man YOU ARE DEAD MEAT!!!! States Rights got a minor boost last year when an individual right to sue under the Tenth Amendment was recognized, but this year the 162 year trend towards the complete suppression of State Sovereignty marches forward unabated….
The main issue regarding Arizona’s immigration statutes was whether the individual states of the Union have any right to make more restrictive laws regarding residence and citizenship than the United States as a whole. Under the expressly anti-States’ Rights 14th Amendment, the Supreme Court said NO. But, if the Arizona police want to go around harassing people on the highways, they are free to do so, so long as they are willing to say they suspect that every blonde-haired & blue-eyed caucasian must have recently entered illegally from Sweden or Norway perhaps…. The Supreme Court, these days, never seems to miss an opportunity to enhance the power of the police to oppress the population at large.
With regard to the “Obamacare” case, I can only say I’m NOT even as surprised by this result as I was not by the result in the Arizona immigration opinion. Ever since Franklin D. Roosevelt gave up his plan to “pack” the Supreme Court, there is no infringement on the economic liberty and personal choices of the American people which the Supreme Court finds too trivial to be worthy of Federal Enforcement. The only comment-worthy deviation from predictions was that Chief Justice John Roberts in this case came up with the novel notion that the U.S. government can tax anything and anyone it wants to for any reason, including non-compliance with a mandatory insurance purchase requirement, and that this punitive tax or purchase choice makes it all “OK.”
Of all the commentary and punditry that came out on Thursday after the decision, two of the most “spot on” that I saw were first) the article describing John Roberts’ “Liberal Apotheosis”:
After Thursday’s Obamacare ruling, Supreme Court Justice John Roberts became a minor deity to some liberals for voting to save Obamacare. But just days before Roberts’ apotheosis, liberals lamented that the “conservative” Supreme Court was taking America down a dangerous path. (http://news.yahoo.com/obamacare-ruling-liberal-apotheosis-john-roberts-035207618.html)
The “Liberal Apotheosis” of John Roberts? ”Apotheosis” of course, means transformation into a god—and what did the pagan gods of Olympia or Pharaonic Egypt do? Exactly what any god can do: A “god” can work Miracles, first Make and then Bend the all Rules, Change the Natural Order of Things…. I suppose my own religious notions, such as they are, posit an unchanging God defined by the phrase from the old BCP: “as it was in the beginning, it is now and ever shall be, world without end amen” which seems curiously absent from most Episcopal services these days. I equate God with Nature, and while I believe rather fervently in Evolution, I believe Evolution operates according to certain utterly unchanging rules, such as the laws of thermodynamics, which even the discovery of man’s ability intentionally to split or fuse atoms could never quite change.
And yet the Godlike role of the Supreme Court in making and bending rules seems more than a bit undemocratic. So that is the second part of the analysis we need to perform today: Was Roberts’ decision to side with Obamacare entirely a matter of political strategy?
The American Concept of Constitutional Judicial Review predates Chief Justice John Marshall. The Supreme Court’s decision Chisholm v. Georgia 2 U.S. 412 (February 1, 1793)(Chisholm v Georgia, 2 U.S. 419, February 1 1793) triggered the (I would now say very unfortunate) move to enact the 11th Amendment during the First Term of the Presidency of George Washington. But Chief Justice Marshall’s notions of judicial review shaped the Court, much to his cousin Thomas Jefferson’s dismay and disgust. I recall hearing the story of Marbury v. Madison and judicial review in my Freshman year at Tulane, from Professor Jean Danielson in Political Science H103, where I met my long-time college years best friend John K. Naland, now a long-time veteran of the U.S. State Department. Professor Danielson explained the political genius of Marbury v. Madison was that it empowered the Court while respecting the political boundaries of the time. Chief Justice Marshall knew that, as President Adams’ last major appointee, any decision made in favor of the appointment of Adams’ minor “midnight judges” including William Marbury would simply be ignored by the new Democratic-Republican administration of Jefferson (with James Madison as secretary of state and the defendant in the case) as an act of political partisanship on the part of a Federalist appointee favoring Federalist appointees. On the other hand, to uphold Secretary of State Madison’s power to refuse to honor the appointments made by President Adams would seem like craven capitulation without legal or moral integrity. So, in a result which no one ever anticipated, Chief Justice John Marshall carefully reasoned and soundly declared the statute authorizing the appointment of Magistrates in the District of Columbia to be an unconstitutional act in excess of Congress’ power under the Constitution—and the role of the U.S. Supreme Court as Constitutional arbiter of the United States was established forever—or, at least, for a long time.
That particular “long time” ended in 1936, which, as a another commentator/pundit on the Obamacare decision pointed out, was the last time in history that the United States Supreme Court overturned a major piece of Congressional legislation as Unconstitutional. Franklin Delano Roosevelt’s first term as President was unlike anything the United States had ever since, including George Washington’s First Term. In Washington’s First Term, the constant debate in Congress was whether the Federal Government had power under the Constitution to do much of anything at all. The spirit was decidedly “conservative” in the sense of cautious, even as a new nation conceived in liberty and dedicated to the proposition that all men are created equal was being launched as a more formally organized “corporate” type of enterprise (the Articles of Confederation were much more analogous to a “partnership” among the States—with each partner having a nearly full veto power).
During FDR’s First Term, there were also many in Congress who asked whether the Federal Government had the power to do a great many of the things the New Deal proposed to do, from the NRA to the TVA (National Recovery Administration to the Tennessee Valley Authority). But from 1933-1937, such questions were not asked in a cautious or even skeptical voice regarding what Congress and the Federal government could legitimately do, but in the desperate and panicked voice of people who saw and feared “you are taking our lives, our fortunes, our sacred honor” from us. Those people sought recourse against the reckless usurpation of Federal Power in the Supreme Court, and in the years 1933-1937, the Supreme Court struck down 29 Congressionally passed statutes signed by the President as part of the New Deal.
Roosevelt’s first hundred days and all that followed provoked an unprecedented clash between the Supreme Court Justices and the “New Deal” alliance of the legislative and executive branches. At Roosevelt’s instigation, Congress in the 1930s enacted a series of laws ostensibly, supposed, aimed at ending the Great Depression and restoring the nation’s economic well-being, but in fact aimed at shoring up the American Elite, especially the Banking system, from the threat of a Communist and/or Fascist revolution analogous to those taking place in Europe at the same time. Of eight major “program” statutes to come before the Court, only two were upheld. Laws that were struck down included the Agricultural Adjustment Act of 1933, the National Industrial Recovery Act of 1933, and the Bituminous Coal Conservation Act of 1935. The Court came under heavy fire for its decisions, and Roosevelt proposed a controversial plan to increase the size of the Court, presumably to ensure a majority sympathetic to the New Deal.
Shortly after the plan was proposed, the Court defused the issue by upholding a series of revised New Deal laws. Dominated by economic conservatives, to which group even late 19th/early 20th Century “Progressives” such as Oliver Wendell Holmes were (by comparison, anyhow) the Court threw out numerous laws Congress enacted to protect workers and consumers. The conflicts peaked in 1936. The Court threw out twenty-nine laws during that period, but the last of these was in 1936, when when the court invalidated a federal law that limited work hours and prescribed minimum wages for coal workers.
Everything changed in 1937 when, FDR Proposed the Judicial Procedures Reform Bill of 1937 on March 9 of that year in one of his legendary “Fireside chats” whereby he jumped over the Congress and all Constitutional Separation of Powers and asked the American people directly to endorse and support his programs. The public reaction was overwhelmingly negative, almost the first time the 33rd President had seen any of his initiatives draw such opposition. But the Justices of the Supreme Court saw the writing on the wall—mene, mene, tekel upharsin—and when faced with the two major cases challenging Social Security (the ultimate authority and most direct antecedent for Obamacare), the Supreme Court ruled in favor of the most massive fraud ever perpetrated on the American people—the law creating a “Social Security Trust Fund” with the bribed cooperation of the States—into which Social Security Trust Fund not one dime of real money (certainly not one dime of the 14 Trillion dollars paid since 1937 in Social Security Taxes) has ever been paid.
Helvering v. Davis (05-27-1937 Helvering v Davis 301 US 619 57 SCt 904 Jusice Cardozo endorses the SS Trust Fund Fraud) and Steward Machine Company v. Davis (Charles C Steward Mach Co v Davis) thus effectively marked the end of the Supreme Court as an independent branch of government. The new mantra was not “that government is best which governs least” but instead, “The concept of the general welfare is not a static one”…. “Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.” (Helvering v. Davis, 301 U.S. 619, 641, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 1315 )
Now, strangely enough, Chief Justice John Marshall wrote a very different kind of opinion in 1820:
The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. Cohens v State of Virginia, 19 U.S. 264, 5 L.Ed. 257, 6 Wheaton 264 (March 3, 1820)
There is a great deal of confusion among the commentators and pundits, I think, about what “Judicial activism” really means. I would NOT call Chief Justice John Marshall a Judicial Activist—although, indeed, he advocated throughout his 35 years on the bench a considerably more positive role for the Court in preserving the Constitution than Chief Justice John Roberts has shown to date. ”Judicial Activism” does not mean “striking down unconstitutional laws”—”Judicial Activism” as a term should be reserved for reshaping or restructuring the laws in the absence of Congressional Authority to do so. The “Warren Court” from 1953-1971 was the epitome of “judicial activism”—the Supreme Court during those two decades effectively rewrote the laws of the United States and told CONGRESS and the STATES what to do, rather than vice-versa.
In the case of Obamacare, Chief Justice John Roberts acts his role as an umpire very poorly. He has seen the foul, called it (under the commerce clause) and “covered it up” under the guise of the taxing power, which (in reality) is even less constitutionally justified than the commerce clause rationale (which at least has the past 75 years of tradition—however illegitimate, behind it).
And so was the U.S. Constitution rewritten in 1937 to allow for first the “relatively” modest program of Social Security and now, 75 years later—on the occasion of the 75th Annual Hunger Games (cf. Suzanne Collins, Catching Fire  and Mockingjay , both New York: Scholastic Press)—Obamacare comes forward to cap the fraud by, in Chief Justice John Roberts’ view—a non-coercive, mere “Tax” on those who do not buy governmentally mandated insurance… and of course, jail for those who do not pay their taxes.
SO WHAT IS THE SHORT-TERM SOLUTION? NULLIFY OBAMACARE! I should say that, without any hesitation whatsoever, I absolutely endorse and support the Tenth Amendment Center’s position on Obamacare (this Los Angeles based think tank is just one of the brightest stars on the Political Horizon—of our New Red Dawn):
Now that the Supremes have crushed Constitutional limits once again, the next step is to focus all our energy on a state and local level to NULLIFY this – and every other – unconstitutional act.
We have model legislation for yor state. Ready to go right now. Press your state reps to introduce this bill today, or for the next legislative session.
Please SHARE this information widely!
We need your help to continue this work, and help people take the next step at the state level. Please join us, and help nullification happen! Whether it’s $500 or $5, every bit of help right now is crucial!
Please visit this link to help now:
Thomas Jefferson told us that when the government “assumes undelegated powers” a nullification is THE “rightful remedy”
James Madison said that states were “duty bound to interpose….to arrest the progress of evil”
Today’s ruling is an assumption of undelegated powers, and evil is advancing. The time to act in support of nullification in your area is NOW! Please share the model legislation for Obamacare with as many people as possible, and please chip in as generously as possible to help us push this campaign aggressively.
While the task is difficult, our cause is just.
Concordia res parvae crescunt,
(small thing grow great by concord)
Tenth Amendment Center
Our mailing address is:
Tenth Amendment Center
123 S. Figueroa St
Los Angeles, CA 90012
AND WHAT DO I DO AS I WATCH ALL THIS TRANSPIRE?
I sigh. I cry. And sometimes I just want to lie down and die. This is not the land of my birth, even though on the map it generally looks like it should be the same country as it was in 1960.
The transformation over the past fifty two years is simply horrific. 52 years was a key cycle of time among the Aztec, Maya, Mixtec, Tarascans & Zapotec in ancient Mesoamerica, and I can only say that I feel a certain sympathy for how an Aztec born in 1518 might have felt looking at the wreckage of his once proud nation in 1570 after 52 years of Spanish conquest, rape and pillage. Like an Aztec born in the last year before the arrival of the Spanish, I have grown up and come to age watching my own people (the American Middle Class, especially Protestants of European descent) reduced to second class status, my people’s most attractive and beautiful women taken as prizes by the conquerors, my nation’s heritage and values denigrated, suppressed and taught in the schools as nothing but “heresy” from the New World Order.
I do speak Spanish fairly well and have spent many of the happier moments in my life in Mexico and elsewhere in the Hispanic World, from Bogotá to Barcelona, and I keep in touch with many friends and acquaintances of a Constitutional mindset from those parts of the world. When they ask me what I consider to be the greatest single constitutional development under the Presidency of Barack Hussein Obama, I tell them without hesitation: N.A.D.A. (aka Senate Bill 1867, you know, the statute that effectively repealed the Fourth, Fifth, and Sixth Amendments that passed the Senate 93-7 last December).