Thursday, June 28, 2012

Happy ObamaoDay! See you in November! The Once and Future Constitution

I've barely had time to begin looking at the SCOTUS decision on ObamaoCare, though there are a couple snippets of the dissent I'll offer up for consideration, but It's far too late tonight to say much more, so I'll just offer up a couple comments made in the course of the day.

First off, two exceedingly relevant quotes:
"It is amazing that people who think we cannot afford to pay for doctors, hospitals, and medication somehow think that we can afford to pay for doctors, hospitals, medication and a government bureaucracy to administer "universal health care.""

"An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation. A question of constitutional power can hardly be made to depend on a question of more or less."

Two random thoughts unjustly separated by centuries of time.

About the SCOTUS decision, I can't say that I was too much surprised by it, or by the fact that it was upheld as a Tax, rather than through further abuse of the commerce clause. Taxation was the only wooden leg it had to stand on, it was the one thing which Obamao swore up and down so often that it absolutely was not, a tax... and was the one thing he promptly turned around and sent his solicitor to sell it as - a tax.

(The one potentially encouraging news of the day may be that the SCOTUS decision to call it a tax, may initiate a devastating series of attacks)

To save the U.S., We The People need to relearn the ideas which had to be understood in order for our nation to be founded in the first place. If we don't understand what our Rights are & what they mean, how can we possibly expect our govt to respect them? If We The People don't understand the nature of our Rights, then our Rights will be unknown.

It's just basic math.

It was already late when I got to sit down and begin reading through the decision, but fortunately my usual go-to Justice, Justice Thomas, had only a small addition to the dissent and it was short and sweet and right on target, taking up an entire paragraph:

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 IndividualMandate is beyond the power granted to Congress un-der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate“economic activity [that] substantially affects interstatecommerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). 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.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545 U. S. 1, 67–69 (2005) (THOMAS, J., dissenting). 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.” Morrison, supra, at 627. The Government’s unprecedentedclaim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.
The main dissent, written by, I think, Scalia, I was only able to begin, but the beginning is promissing, with:
... The case is easy and straightforward, however, in another respect. What is absolutely clear, affirmed by thetext of the 1789 Constitution, by the Tenth Amendmentratified in 1791, and by innumerable cases of ours in the 220 years since, is that there are structural limits upon federal power—upon what it can prescribe with respect to private conduct, and upon what it can impose upon thesovereign States. Whatever may be the conceptual limitsupon the Commerce Clause and upon the power to taxand spend, they cannot be such as will enable the Federal Government to regulate all private conduct and to compel the States to function as administrators of federal programs.

That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), whichheld that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficientlythat it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activityat all) nonetheless affects commerce and therefore can befederally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

As for the constitutional power to tax and spend for the general welfare: The Court has long since expandedthat beyond (what Madison thought it meant) taxing and spending for those aspects of the general welfare that werewithin the Federal Government’s enumerated powers, see United States v. Butler, 297 U. S. 1, 65–66 (1936).Thus, we now have sizable federal Departments devoted to subjects not mentioned among Congress’ enumeratedpowers, and only marginally related to commerce: the Department of Education, the Department of Health and Human Services, the Department of Housing and UrbanDevelopment. The principal practical obstacle that prevents Congress from using the tax-and-spend power to assume all the general-welfare responsibilities traditionally exercised by the States is the sheer impossibility of managing a Federal Government large enough to administer such a system. That obstacle can be overcome bygranting funds to the States, allowing them to administer the program. That is fair and constitutional enough whenthe States freely agree to have their powers employed andtheir employees enlisted in the federal scheme. But it is a blatant violation of the constitutional structure when the States have no choice."
and, on "The Individual Mandate":
... If this provision “regulates” anything, it is the failure to maintain minimum essential coverage. One might argue that it regulates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchasing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.

In Gibbons v. Ogden, 9 Wheat. 1, 196 (1824), Chief Justice Marshall wrote that the power to regulate commerce is the power “to prescribe the rule by whichcommerce is to be governed.” That understanding is con- sistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when “to regulate” meant“[t]o adjust by rule, method or established mode,” 2 N.Webster, An American Dictionary of the English Language (1828); “[t]o adjust by rule or method,” 2 S. Johnson,A Dictionary of the English Language (7th ed. 1785); “[t]oadjust, to direct according to rule,” 2 J. Ash, New and Complete Dictionary of the English Language (1775); “toput in order, set to rights, govern or keep in order,” T.Dyche & W. Pardon, A New General English Dictionary (16th ed. 1777).1 It can mean to direct the manner of something but not to direct that something come into being. There is no instance in which this Court or Congress (or anyone else, to our knowledge) has used “regulate”in that peculiar fashion. If the word bore that meaning, Congress’ authority “[t]o make Rules for the Government and Regulation of the land and naval Forces,” U. S. Const., Art. I, §8, cl. 14, would have made superfluous the later provision for authority “[t]o raise and supportArmies,” id., §8, cl. 12, and “[t]o provide and maintain a Navy,” id., §8, cl. 13.

We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” Johnson, supra, or “direct[ing] according to rule,” Ash, supra; it directs the creation of commerce.
So Now What
I'll direct you to my two previous posts this week, Two posts this week on just that: "You have No 'Constitutional Rights'. None. Nada." and "Rights from the source... so to speak", and remind all, that this election isn't just about good and bad political policy, but about fundamental philosophy, and it pits us against a deliberately destructive (to principles of American governance), consciously anti-American administration. That's a situation that requires us as voters to do more than express our disapproval at the ballot box, it requires that we use our ballots in self-defense - it must be stopped. 

Simply registering support for other candidates and ideas is inadequate, the current proregressive direction we're heading down must be stopped, and the only way of doing that, that I can see, is by putting my x by the ballot option most likely to have a chance of DEFEATing Obama.

Not registering disapproval, Defeating.

Voting is Not our primary responsibility as citizens however, it is not enough to Vote and go home until the next election; a citizen must put effort into supporting and spreading the ideas they see as important so that when the next election comes around, those ideas might be more reflected in the options on the ballot - and in the people voting on them.

I'll continue as best as I can, working to spread the ideas that enabled our nation to be founded in the first place, trying to educate people on what our govt Should be, and YOU must do the same.

It is the only way that we can rid ourselves of candidates such as Obama AND Romney.

That is the only alternative we have open to us, the only one there has ever been - to push back against the real power that has always been opposing us, philosophy and its rusty needle of public education which has been used to mainline anti-American ideals into our intellectual bloodstream.

America is a nation of ideas. That is, and always has been, the only place we have been open to any real damaging attack, it is the never-ending battle, and we've barely fired a shot on this battlefield for over 150 yrs, though we have been shot and wounded upon it, repeatedly.

Our first critical wound struck us back in the early 1800's, when Justice Taney decided in "Charles River Bridge v. Warren Bridge" to render his judgment against Property Rights for the 'greater good', at which point Daniel Webster muttered that that was
"The death of property rights".
We suffered a more dire wound with Justice Taney's next winner of a 'judgment' in deciding that Dred Scott was justified in being considered property, not man. The greatest tragedy of the Civil War that followed that, is that we never really understood the nature of the battle we were engaged in.

We thought it was simply a shooting war. We couldn't have been more wrong. As impressive and destructive as the shooting war was, the real war was going on in philosophy and education, and they absolutely won the field, with the Morrill Act for Land Grant Colleges being passed, as a war measure, with the intent of making thoughts of rebellion impossible from there out... they literally established Federal input into the Educational system of America, in order to influence and control the ideas our children would be taught.

They succeeded.

There were other cases: the Louisiana Slaughter Houses cases, Plessy v. Ferguson, and the next big hit, the 1907 case Wilson v. Shaw, where the SCOTUS officially gave Congress the power "to construct interstate highways" under its newly discovered constitutional right to regulate interstate commerce. With the constitution in such a walking-wounded state as that, the 16th & 17th amendments gutted it of its defenses, and its demise was plain to see when Justice McReynolds took grievous note of our condition in 1935 when FDR stuck the dagger in with the Gold Clause cases, taking a hold of powers he had ABSOLUTELY NO constitutional power to take. McReynolds said then that:
"Congress had no power to destroy the gold clause commitment. FDR is Nero at its worse. As for the Constitution, it doesn't seem to much to say, that it is gone"
And he was right. It was.

We've only just realized it today.

Does anyone really think that people getting riled up over this decision, is going to change all of that? At the ballot box?! Does anyone really think... that we can regain all of that lost ground back, simply by voting For (___ insert useless candidate name here)?

Sorry, but as good for the soul as laughter can be, that won't even stifle a sneeze, let alone reanimate our Constitution or the American people.

But it is a start, and one we have to take. I just caution against heaping too much 'hope and change' upon it. The coming elections, and the candidates we'll have to choose from, will likely not be anyone or anything we want to battle for, but they will serve as political beach heads & fox holes, nothing more. We've got to take them, and hold their ground, but never think that they are what we are fighting for.

Tactical ground, nothing more.

We've got a long, long, haul ahead of us. No shortcuts. No marketing solutions. We either take the time and effort to learn again what it means to be an American, or we leave it to ferment for a thousand years for the next people to give it a whirl.

Sorry, no time to link cases and references up, I'll be lucky to run SpellCheck, will try to in the morning. Maybe add a cheerier conclusion too. We'll see.

But let me add just one more note. With all the talk of the 'Death of Liberty', the 'Death of the Constitution', of 'Freedom of Choice has met it's Death Panel', while in some sense, that may be true, there's something else to keep in mind: The nice thing about a Constitution is that it isn't itself a living breathing creature - it lives and breathes through us, through We The People, and if we awaken ourselves, if we fill ourselves again with the ideas which originally animated our Constitution, then it may become the Once and Future Constitution.

It is, as it always was, up to We The People to decide.


mushroom said...

I agree with what you say here and in the previous two posts.

Our view of our rights does need to change, and I think you have done an excellent job of articulating how and why.

We cannot count on a document, parties, or institutions to deliver us from the consequences of more than a century of progressive "good intentions".

Anonymous said...

Jesus, Sowell sounds like the stupidest man in the world.

The US has by far the most expensive health care in the western world, about 1/3 of the cost is pure overhead to insurance companies. Government-provided healthcare is far cheaper in terms of bureaucratic overhead, both in other countries and the socialized part of the US healthcare system like the VA administration.

Van Harvey said...

Dear smartest and bravest anonymous aninnymouse troll ever:

So you really think that adding government bureaucracy to administer 'universal health care' is going to improve service & quality and bring down prices (I know you you said costs... do you know the difference?)... and you have the nerve to call someone else stupid?

Not a lot of mirrors in your house, are there.

Have you ever bothered to look into where your phrases such as 'The US has by far the most expensive health care in the western world' came from? Ever looked beyond the claims? Wondered what they were based upon? And in relation to what?

And even if it is the most expensive health care in the world ('Western' is an unnecessary given... no one suspects Yemen or North Korea of having stellar health care), which it likely is (not to mention the most(even now) efficient, and easiest and quickest to get in to have procedures done and get out alive & well), given the choice between the pricey, well educated and skilled Western Medical School graduate, and the nothing-down unbathed bead jangling spiritualist huckster willing to draw bad ju-ju outta my aura on the cheap... personally, I'm going with the expensive dude driving the BMW - but maybe that's just me.

Just for grins, here's an article that's worth your while to read, written by a professor of radiology and chief of neuroradiology at the Stanford University Medical Center, upon a study which a good chunk of your silly speak probably came from: The Worst Study Ever?:

"Scott W. Atlas — April 2011
Share on print Print PDF
The World Health Organization’s World Health Report 2000, which ranked the health-care systems of nearly 200 nations, stands as one of the most influential social-science studies in history. For the past decade, it has been the de facto basis for much of the discussion of the health-care system in the United States, routinely cited in public discourse by members of government and policy experts. Its most notorious finding—that the United States ranked a disastrous 37th out of the world’s 191 nations in “overall performance”—provided supporters of President Barack Obama’s transformative health-care legislation with a data-driven argument for swift and drastic reform, particularly in light of the fact that the U.S. spends more on health than any other nation...

...In fact, World Health Report 2000 was an intellectual fraud of historic consequence—a profoundly deceptive document that is only marginally a measure of health-care performance at all. The report’s true achievement was to rank countries according to their alignment with a specific political and economic ideal—socialized medicine—and then claim it was an objective measure of “quality.”"

Enjoy the read.

Van Harvey said...

And by the way aninnymouse, I really don't give a damn if it's the most expensive health care in the world. I don't care one bit if insurance companies make huge, massive profits (as long as your damn leftie regulators aren't tapping the till and protecting their buds in the biz).

Well that's not quite right... sorry, it's late, I should go to bed... I do care, I think it's friggin' marvelous that they make huge profits and hope doctor, hospital and insurance companies alike have ever increasing profits.

Ya know why?

Because to the extent they are doing so because they are good at their jobs, as opposed to receiving favoritism from proregressive regulatory fiends, their profits mean success, wealth, and better service and care than the pathetic death ports of your socialistic utopias in cuba, England, etc.

"Top doctor's chilling claim: The NHS kills off 130,000 elderly patients every year"

But even more than satisfaction and pride that our system still enables people to become well off or wealthy through providing care to their fellows, I'm thrilled by their profits because it means that people are still, at least to some extent, free to make their own choices about their own lives.

That gives me a warm feeling, deep down. In fact, I'm going to go sleep on it. Thanks.

Anonymous said...

Take a look at this graph:

If all the money the US spent on healtcare produced better outcomes, you might have a point, but it doesn't and you don't.

So your position, I guess, is that people can be dying in the streets but since insurance companies are making fucktons of money, that means USA #1!!!!

I don't really get wingnuts. I mean, anybody except the very rich or the very young in this country must have had first-hand exposure to the crap our healthcare system dishes out. Not the medical care itself, but the enormous maze of insurance company bureaucracy you need to go through, the denial of pre-existing conditions, the people locked into inappropriate jobs for fear of losing their health coverage. There's really no possible defense of the current system.

Van Harvey said...

aninnymouse said "If all the money the US spent on healthcare produced better outcomes, you might have a point, but it doesn't and you don't."

Obviously you didn't bother reading the article I linked to, or you wouldn't have been stupid enough to say that, or link to that graph.

Not surprising, that's what trolls do. Perhaps if you took your head out of your borgraphs, and looked around you, you might notice that in fact corpses are not piling up in the streets in America like cordwood, and there is, still, a reason for that.

But that would require something that leftists will never dare to encounter: Reality and a respect for it.

"Not the medical care itself, but the enormous maze of insurance company bureaucracy you need to go through..."

Have you ever bothered to investigate where that maze came from? If you did, you might notice that it came from govt regulations that mandate actions from afar and distant in time, which must be taken, without any connections to the needs and sensible decisions that need to be made, in real time, then and there. That causes behavior which is stupid, and wasteful and inefficient... which of course causes more problems which attract publicity and more regulations, etc., etc., etc.

"There's really no possible defense of the current system."

Agreed. Get govt out of healthcare. Now.

"I don't really get wingnuts."

I, on the other hand, entirely do get leftists. You want to remake reality into your image of what it should be, without any of the consequences which follow. You enjoy the fuzzy delusion that if you can't see the results, or if they can temporarily been shoved onto someone else to deal with, that you've actually done something you can get away with. For a while.

You should be embarrassed. But again, that would involve a concern with the reality you're trying so hard to hide from.

Here's a tip: If you actually want to improve access to healthcare for the poor, do something about it. Form an organization with your fellow do-gooders, and actually go out and do some good, rather than seeking to force others to do what you think would be good. Provide them with information and counseling that will help them to navigate the maze of govt regulations imposed on doctors & hospitals & insurance companies. Contribute some ca$h to help defray their costs, rather than adding to them with even more regulations and bureaucracies.

Here's another tip: Look at where charitable organizations originated at, and most often flourish, even today - that's in the West, not the East. They idea of forming organizations to help your fellow man, originated in those countries which had the most Free Markets, not those that had the largest and most intrusive governments.

People who are Free to live their own lives, tend to do so. People who are free to live their own lives, are the ones who are most likely to try and help others to improve their lives.

But that has to be done by individuals, voluntarily. Try and impose that idea on others, and you prevent people from living their own lives, force them to lessen their generosity, and kill the liberty to help their fellows.

Get on Google. Look up some Cold War era images and articles of East & West Berlin. Which one looks alive, and which one looks like death? Which one did people risk their lives to escape, and which one were they seeking to escape to?

There's a reason for that.

But again, to understand that reason would require admitting and caring about Reality, rather than your own wishes for what you'd like it to be.

Van Harvey said...

Oh, and thanks once again aninnymouse, you reminded me that I've neglected to put a NobamoCare! set of links on my "Greatest Hits" page, which I've just remedied.

If I were you, I'd start by ignoring the first one.

Govt Healthcontrol? Anyone Remember HMO's?
Obamacare Violates My Right To Pursue The Healthcare I Choose!
Govt Healthcare Bill - Those who do not remember the past, are doomed to repeat it.
Healthcare Mandates Evil 'For The Greater Good'
nObama Healthcare plan - what's so confusing about it?
Arbitrary Disasters - The Health of Justice in the Age of Obamao