The principles that rule this blog

Principles that will govern my thoughts as I express them here (from my opening statement):


  • Freedom of the individual should be as total as possible, limited only by the fact that nobody should be free to cause physical injury to another, or to deprive another person of his freedoms.
  • Government is necessary primarily to provide those services that private enterprise won't, or won't at a price that people can afford.
  • No person has a right to have his own beliefs on religious, moral, political, or other controversial issues imposed on others who do not share those beliefs.

I believe that Abraham Lincoln expressed it very well:

“The legitimate object of government is to do for a community of people whatever they need to have done, but cannot do, at all, or cannot
so well do, for themselves — in their separate, individual capacities.”


Comments will be invited, and I will attempt to reply to any comments that are offered in a serious and non-abusive manner. However, I will not tolerate abusive or profane language (my reasoning is that this is my blog, and so I can control it; I wouldn't interfere with your using such language on your own!)

If anyone finds an opinion that I express to be contrary to my principles, they are welcome to point this out. I hope that I can make a rational case for my comments. Because, in fact, one label I'll happily accept is rationalist.

Friday, June 29, 2012

I suppose it's the conservative thing to do

Conservatives believe that the judiciary should defer to elected legislatures and not be “activist judges.” A corollary of this is Chief Justice John Roberts' statement that “It is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”

This was stated in a post by Paula Dwyer in the Bloomberg View blog:

Roberts didn't “join the left,” as some bloggers are writing. Nor did he turn his back on the strict-construction crowd, or even wander far from bedrock conservative principles.

Roberts, instead, has lined up with conservatives who are faithful to traditional interpretations of the Constitution. And that means deferring to Congress and the executive branch, even if the laws they've enacted circumscribe some individual freedoms. The right of elected leaders to pass the Affordable Care Act (aka Obamacare) falls well within the existing boundaries of constitutional power, Roberts essentially concluded. And for those who don't like the result, relief should be sought at the polls, not in the courts.

The evidence for how Roberts would rule was hiding in plain sight. He has never been in the libertarian wing of conservatism that is personified in today's Tea Party movement — favoring limited government and states' rights and holding the belief that personal liberty trumps everything else. Instead, he likely drew inspiration from the opinions of a handful of prominent conservative legal scholars and lower court judges. Two are worth mentioning:

In November, the U.S. Court of Appeals for the D.C. Circuit upheld the ACA in a 2-1 decision written by Judge Laurence Silberman, a card-carrying member of the GOP's conservative wing. He wrote that the health reform law “is an encroachment of individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

Silberman also notably argued that freedom from regulation must give way to “the imperative that Congress be free to forge national solutions to national problems.” Interestingly, Silberman didn't rest his legal argument on the powers granted Congress under the Commerce Clause — just as Roberts didn't lean on the Commerce Clause in his majority opinion today. Silberman essentially provided Roberts a path to upholding Obama's signature legislative achievement without further expanding, or even endorsing past expansions, of the Commerce Clause, which liberals have leaned on for decades to adopt the 1964 Civil Rights Act and numerous other laws.

Another likely Roberts muse is Henry Paul Monaghan, the Harlan Fiske Stone professor of constitutional law at Columbia Law School. Among his conservative bona fides: He testified in favor of Robert Bork during his aborted Supreme Court confirmation hearings in 1986. But Monaghan is somewhat of a stickler when it comes to upholding precedent, and it was his opinion that an analysis of settled case law meant that the individual mandate is constitutional.…

In the end, Roberts concluded that any ruling against the health-care law would have been the very kind of judicial activism that conservatives decry. To Roberts, the solution lies with politicians and voters, not his court.


Paula Dwyer is right. As unpleasant as the decision was, it can be rationalized in terms of true conservative principles. If one truly believes that judges should not be activists, Roberts' position makes sense. By grounding his refusal to void “Obamacare” in Congress's taxing power, he did not validate Pres. Obama's over-liberal interpretation of the Commerce Clause, and that part is all to the good.

Another point that needs to be made is that the only reason that the law was ruled constitutional was that it was a tax,, and Michael Medved noted on his blog on The Daily Beast:

Conservatives shouldn’t pretend that the Supreme Court decision on the Affordable Care Act isn’t a victory for President Obama. It is, and the president will naturally claim vindication for his policies.

But for Obama, today’s judgment amounts to a victory in a battle, not the war. To win that war—to block the implementation of sweeping legislation that would cripple the economy and damage the republic—Republicans need to shift strategy, not abandon our goals.

Yesterday, we argued that Obamacare was ill-advised and unconstitutional. Today we know that it is constitutional (the justices get to decide that under our system, not legal analysts on Fox News, or at the National Review, or even at The Daily Beast). But it’s still ill-advised.

And, more to the point, Obamacare is still unpopular. It won’t suddenly become more popular now that the Supreme Court has formally endorsed the Republican contention that Affordable Care Act actually mandates a massive new tax on the middle class. If nothing else, today’s decision makes it officially, undeniably clear that the administration can’t pay for its wildly increased spending programs by imposing new burdens on the wealthy alone. The American people may have been confused on the subject of the “individual mandate” but every citizen understands what it means to face a new tax.

As the campaign unfolds, how can the president continue to deny that he has imposed such a tax when the Supreme Court ruled that he has—and it’s on that basis alone that his signature achievement counts as constitutional?

While conservatives passionately hoped that the high court would euthanize Obamacare on Thursday morning—or at least cut out its heart while encouraging Congress to attempt an emergency transplant—they can at least take comfort in some aspects of the emerging situation.

First, all right-wingers with integrity should feel encouraged by the fact that judicial restraint is alive and well. Justice Roberts’s decision made it clear that he wanted desperately to avoid “legislating from the bench”—and conservatives should of course applaud that instinct. Roberts and other opponents of what Republicans what rightly deride as “judicial tyranny” resisted the idea that nine unelected jurists (or five of them, to comprise a majority) should instantaneously undo 2,700 pages of ridiculously detailed legislation painstakingly passed by 535 elected representatives over the course of nearly two years of debate.

Justice Roberts’s decision made it clear that he wanted desperately to avoid “legislating from the bench”—and conservatives should of course applaud that instinct.

The problem was that helping this new law survive its legal challenges might also lead to a dangerous expansion of the Commerce Clause—suggesting that the congressional power to regulate interstate commerce now meant that the national legislature could compel every American to eat broccoli, as Justice Scalia speculated in oral arguments.

By justifying the law under the taxing power, the court still forbids direct compulsion by Congress concerning individual decisions on broccoli consumption. But the Supremes do say that the feds can impose taxes on every sort of food other than broccoli—so if you don’t decide to eat the green stuff, you’ll have to pay. By the same token, the Supremes say here that the national government can’t force you to buy insurance, but they do have the right to say that if you don’t buy it, you’ll face an extra tax.

But this conclusion also aligns the highest court in the land with the charge that the administration was profoundly dishonest when it argued, again and again, that Obamacare imposed no new taxes on the American people. The decision today put a definitive end to such dissembling. The argument about health-care reform can now focus more clearly on whether the administration plan is worth the crushing costs, without the mendacious pretense that the public would get something for nothing.


This does not mean that I like this decision — I certainly wish he had voided the law. But I understand how a conservative judge could reach Roberts' conclusions. And the result is simply that, just as conservatives who feel that courts should defer to legislatures have often said, the remedy is the ballot box — retire Pres. Obama, and change enough Senators so that a better bill can be passed.

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