Tag Archives: ethics

Independence Day

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On this day 236 years ago, a group of Americans got together and, pledging their Lives, their Fortunes and their sacred Honor to each other while relying on the protection of divine Providence, took our country free from tyranny and set us on a new, wholly experimental course.

These men openly acknowledged both our right and our duty to throw off any government that too badly violates its moral obligations to us sovereign citizens, that for too long abuses our liberties and our individual responsibilities.  At the same time, though, they acknowledged that routinely rebelling at every small offense was equally wrong: Governments long established should not be changed for light and transient causes.  Yet those light and transient offenses want correction along with those abuses and moral failures.

And so, while fighting (and some dying) for our newly born nation and during the immediately ensuing years of a troubled peace, these men, with others from the newly independent and united States joining them, in a second phase of our experiment invented a wholly new form of government.  They created a government that would recognize the essential sovereignty of the members of a voluntarily formed social compact over our compact’s government, and they gave that government a structure and a strictly limited set of authorities designed to maximize our control of government and our ability to maintain that control.

They also invented a wholly new mechanism for throwing off an abusive government and replacing it with one more suited to our needs and to our control: a set of elections that would let us turn all the rascals out of one house of our legislative body every two years, that would let us depose the whole of the other house of our legislative body in sequential one-third increments every two years, and that would let us fire the chief executive of this government every four years— any and all whom we found wanting during their time in office.  This invention was accompanied by another invention of these men: a judiciary that sat, neither above nor below our executive and legislative, but equal to and separate from them—a third powerful check that granted stability to the whole.

We are here today arguing amongst ourselves, usually with great passion, over the Patient Protection and Affordable Care Act, the Environmental Protection Agency, climate change, and a host of other things, too, both momentous and trivial.  And we could not be without the genius and the sacrifice of those men those 236 years ago.

As you sit around by your barbecue, or at the beach, or wherever you may be, hamburgers and hotdogs in hand, beer nearby, children screaming and yelling in their own happinesses, take a moment to think about that.

Justice Thomas’ Dissent

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Justice Clarence Thomas’ dissent from the Supreme Court’s just published ruling on the Patient Protection and Affordable Care Act, quoted below, is short, to the point, and worth studying.  His dissent also can be found at the end of the full ruling (together with the four Justices’ joint dissent), which itself can be read here.  Justice Thomas’ cites are omitted below.

JUSTICE THOMAS, dissenting.
I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause.  The joint dissent and THE CHIEF JUSTICE cor­rectly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress under the Commerce Clause and the Necessary and Proper Clause.  Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.”  I adhere to my view that “the very notion of a  ‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.”  As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”  The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects inter­state commerce is a case in point.

It was this “substantial effects” test that permitted the ruling in Jones & Laughlin and which was dramatically expanded in Wickard.  Until these odious rulings are reversed, the dangerous lack of limits still extant in the Commerce Clause, the majority opinion in this case notwithstanding, remain a clear and present danger to our individual liberties.

Tax vs Prohibition

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Paul Mirengoff had some remarks on some of the implications of the Supreme Court’s ruling on the Patient Protection and Affordable Care Act.  Chief Justice Roberts’ argument:

…the highly consequential debate between Chief Justice Roberts and Justice Kennedy over whether it is “fairly possible” to view the payment that must be made under Obamacare for not purchasing health insurance as a tax.  Roberts’ view that it reasonably can be considered a tax rests, at least on part, on the claim that there is no prohibition against not buying health insurance.  An individual can refuse to buy insurance, just as a basketball player can commit that last foul, though he or she will pay a price for the refusal.

Justice Kennedy’s argument:

Kennedy’s view is that the price one must pay for not purchasing insurance entails a prohibition.  He quotes the great jurist Chancellor Kent as follows: “If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful, though there be no prohibitory words in the statute.”

Mirengoff concludes

Kennedy’s view of this matter is more persuasive than the Chief Justice’s.  But remember, under rules of constitutional adjudication, Roberts’ view need not be the most persuasive one.  As Kennedy concedes, it must only be “fairly possible.”

And here is the danger of, as Mirengoff puts it, the squishiness of “fairly possible.”  Note that in this context, “fairly” has nothing to do with “fair,” as in a “fair coin.”  “Fairly” here means sort of reasonable, a measure of plausibility.  And that “sort of plausible” argument was allowed by Roberts to trump actual logic—and the facts of the matter that Congress had, in developing this law, explicitly removed tax language and replaced it in toto with penalty language.  Roberts abused even the squishiness of the fairly possible “doctrine” to find a tax in the law where none existed so that he could preserve a claim of constitutionality of the PPACA.

Indeed, Roberts moved himself over the line into judicial activism.  The judicially conservative thing is to strike a law that is unconstitutional, not to actively manufacture reasons for finding it constitutional.  That is judge-made law.

The Supreme Court and the Constitution

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Here’s another implication of Chief Justice John Roberts’ ruling on the Patient Protection and Affordable Care Act, courtesy of The Wall Street Journal.

According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from “buying gasoline or earning income,” and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.

Except that not buying a thing or a service is radically different from buying that thing or service.  This isn’t merely a matter of opposites: opposites are related to each other.  There is no relation between buying or not buying—the thing/service being bought is known; the thing/service not being bought cannot be known, and so the bought/not bought functions can have no relation to each other whatsoever.

Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued “would open a new and potentially vast domain to congressional authority…. The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.” [emphasis in the original]

But then

Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.

With this stroke, Roberts has cancelled the effect of his understanding on the limit of the Commerce Clause’s ability to compel commerce; he has simply transferred the ability to compel commerce to the Taxing Clause.  Which also had no prior compulsion power.

Whether the Federal government may compel our behavior via Commerce or via Taxing, our government now can compel our behavior.

This is judicial activism at its worst.

The Racism of the Left

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MSNBC host and racial activist Reverend Al Sharpton in an interview with The Hill, as cited by Fox News:

I’m not saying that this is because Holder is black, and I’m not calling [Republicans] racists. I’m saying what they’re doing has a racial effect, and that’s what we’re going to talk about.

What the Reverend chooses to ignore is that only a racist would find “racial effects” in an affair that has nothing at all to do with race.

But there’s more: House Minority Leader Nancy Pelosi said last week that Republicans’ demand for a full accounting of the crimes of “Fast and Furious,” and Republicans’ objections to Attorney General Eric Holder’s stonewalling and potentially outright lying during the investigation, is mere obfuscation of their real goal—to  keep minorities from voting and to keep Holder from interfering.

They’re going after Eric Holder because he is supporting measures to overturn these voter-suppression initiatives in the states.

A vast, right wing, racist conspiracy.

Holder himself has been actively interfering with states’ efforts to ensure that their voter rolls are populated only with eligible voters, and not also with the dearly departed, or with Mickey Mouse, or with a white Holder.  Or with illegal aliens.  Because keeping ineligible voters from voting is somehow racist.

At least one Federal judge isn’t buying it, though, and that’s to the good.  US District Judge Robert Hinkle, of the Northern District of Florida, has rejected Holder’s suit against Florida, which suit was an attempt to block that state from protecting the sanctity of an American’s—a Floridian’s—vote by removing ineligible voters, of whatever race or stripe, from the voting rolls.

Ruling that while federal laws (vis., the National Voter Registration Act of 1993) are designed to block states from removing eligible voters close to an election, they are not designed to block states from removing voters who were never eligible in the first place, Judge Hinkle denied Holder’s motion to enjoin Florida from purging ineligible voters from their voter rolls.