The Supreme Court Abandons Another Constitutional Safeguard, Only Gorsuch Dissents

The Supreme Court Abandons Another Constitutional Safeguard, Only Gorsuch Dissents

Now fallen into obscurity and disuse, the Contracts Clause was once one of the U.S. Constitution's strongest protections for economic freedom against state interference. Praised by James Madison as a "constitutional bulwark in favor of personal security and private rights," the Clause declares that "No State shall...pass any...Law impairing the Obligation of Contracts."

Justice Scalia's Timely Advice

Via-American Spectator


By Ron D. DeSantis & Adam Paul Laxalt

U.S. Supreme Court Justice Antonin Scalia offered the members of Congress who attended his "constitutional seminar" some timely advice: read The Federalist Papers. This advice, if heeded by members of the 112th Congress, would represent a welcome change in the priorities of our national legislature. From the defeated Phil Hare, who admitted he "didn't worry about the Constitution" to then-Speaker Nancy Pelosi, who reacted in disbelief when asked whether the Constitution constrained her ambitions, the 111th Congress was conspicuous for the number of members that exhibited a blissful disregard for the Constitution they swore to support and defend.

Of all of the handiwork of the 111th Congress, no single act displayed its members' indifference to Madisonian constitutionalism more than ObamaCare. Because of the nation's fiscal crisis, the budget-busting quality of ObamaCare is, understandably, the focus of many critiques of the law. But if members of Congress heed Justice Scalia's advice and consult the writings of Publius, they will find that, irrespective of its costs, ObamaCare is an affront to the ethic of constitutionalism that Founding Fathers like James Madison embraced.

The provision mandating the purchase of private insurance, which has received the most attention because it is the focus of strong challenges in the courts, threatens to wipe away any discernible limitations on the scope of the federal government's authority to regulate commerce. As Madison famously explained in The Federalist No. 45, the "powers delegated by the proposed Constitution to the federal government are few and defined."

 As a congressman, Madison warned against constructions of the Constitution that rendered the government "no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." If inactivity can be characterized as commercial activity, then virtually anything is ripe for federal supervision, converting the Constitution into an "unlimited government," which is precisely what the Founding Fathers tried to prevent.

While the individual mandate affirmatively violates the Constitution, other aspects of ObamaCare conflict with the philosophy underlying it. The sheer enormity of the law undermines self-government. In The Federalist No. 62, Madison remarked that "It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood." ObamaCare checks in at a cool 2,700 pages of dense, legislative jargon; can a citizen really be expected to understand the inner workings of this colossal law?

Though 2,700 pages long, ObamaCare intentionally left a large number of critical questions unanswered, delegating vast authority to executive branch agencies. This enables the bureaucracy to issue dense, lengthy rules that spell out the thorny details of "transformational change." According to Madison, such easily mutable rules give an "unreasonable advantage…to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people." The advent of ObamaCare "waivers" has vindicated Madison's warning, for such "waivers" have been issued to politically-connected entities like the Service Employees International Union, which spent $27 million in support of Obama's presidential campaign and is adept at influencing pliable public officials. Incredibly, the same powerful groups who flexed their political muscle in favor of "transformational change" are now able to exempt themselves from its enactment. This is precisely the type of politics that American voters rejected in the 2010 midterms.

Such rank favoritism notwithstanding, allowing executive branch agencies to impose far-reaching restrictions and mandates on the American people, such as dictating the minimum "essential benefits" that Americans are forced to maintain under penalty of law, further corrodes the political accountability that is a prerequisite for liberty. In The Federalist No. 63, Madison identified the need to structure the government in a way that "a ready and proper judgment can be formed by the constituents" respecting its actions. ObamaCare delegates legislative authority so dramatically that unaccountable executive branch officials possess boundless discretion to institute policies that affect the medical care and livelihood of millions of Americans. By subcontracting important legislative decisions to bureaucracies, elected officials insulate themselves from the political responsibility that is the hallmark of a government of, by and for the people.

Though challenges to ObamaCare in the courts show promise and should be pursued, the constitutionalist critique of the law should not be confined to the judicial sphere. Judicial decisions are final but they are not infallible. James Madison understood that supine courts would not always enforce the Constitution, and explained in that, in such instances, "a remedy must be obtained from the people," through ordinary politics. The 2010 elections demonstrated that the people are intent on exercising this remedy.

Opponents of ObamaCare should continue to press the political case for repeal in a way that goes beyond mere dollars and cents. Repeal is also about preserving an ethic of constitutionalism rooted in limitations on government, political accountability, and equal justice under the law.

Let's hope that members of Congress listen to Justice Scalia. By governing in a way that is faithful to the philosophy of limited government articulated in The Federalist Papers, the 112th Congress has a unique opportunity to earn the reputation as the "Constitutional Congress" and, in the process, save our nation from the ambitions of its rulers.

On the Court, Leftist Justice vs. the Rule of Law

Via-Pajama's Media

Breyer's "living Constitution" is a dead letter.

by Mike McDaniel


”Elections have Consequences,” said Barack Obama upon becoming President. Among those consequences is the ability of any President to appoint justices of the Supreme Court, as well as a great many other federal judges, based on criteria rational or irrational, honorable or dishonorable, or no criteria other than flipping a coin or tossing a dart at a board festooned with the names of candidates.

On Dec. 12, the consequences of the election of Mr. Obama were illuminated in stark relief on Fox News Sunday during Chris Wallace’s interview of Supreme Court Justice Stephen Breyer, currently hawking his book “Making Our Democracy Work.” Wallace wisely questioned Justice Breyer on the Second Amendment. His answers and evasions were illuminating — and frightening.

Justice Breyer suggested that the primary job of a Supreme Court Justice is to determine the values of the Founding Fathers. Breyer suggested that his second concern was to examine history, with the majority opinion of historians, perhaps, considered to rule. He did ultimately allow that judges should consider such matters as the the actual text of the Constitution and precedent, but Breyer’s answers to Wallace’s questions revealed his belief that the text and its clear meaning should be ignored in favor of the approach of judges like himself — who should “regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Justice Breyer suggested that this was a “pragmatic” approach.

In explicating the text of the Second Amendment, Breyer said that it was not written to guarantee an individual right to keep and bear arms, but as a check on Congress nationalizing state militias. According to Breyer, James Madison included the amendment as an appeasement to the states to ensure that the Constitution was ratified. Breyer asserted that historians believe that Madison’s priority was “I’ve got to get this document ratified.”

Justice Breyer repeatedly brought up “liberty,” suggesting that the concept could not be understood unless one adopted his values-based approach to Constitutional interpretation. He also raised the argument that his approach was correct because the Founders did not foresee such things as the internet, television and the telephone — implying that his flexible approach (an approach which ignores the text and its clear meaning in favor of adopting contemporary, politically correct interpretations that advance desired social policies) is the only legitimate way for a judge to make decisions.

Justice Breyer wrote the dissenting opinion in the 2008 District of Columbia v. Heller case in which the majority affirmed the Second Amendment right of individuals to keep and bear arms, as the clear meaning of the text and the historical record support. However, Breyer believes that the opposite holding, his own (he wrote the dissenting opinion), is correct, reflecting the values and intentions of the Founders. Referring to the act of judging, Breyer said “The difficult job in open cases where there is no clear answer is to take those values in this document, what all Americans hold, which do not change, and to apply them to a world that is ever changing. It’s not a matter of policy, it is a matter of what those framers intended.” Breyer ignores the fact that it is language, the written word that reflects embodies and explains values, and nowhere was language so carefully chosen as in the Constitution. In Breyer’s construction, the clear language of the Constitution is untrustworthy, confusing and cannot be understood by the layman, but only apprehended by a values interpretation discovered and imposed by judges.

For Justice Breyer a complete ban on handguns in D.C is completely acceptable and reflective of the true values embodied by the Constitution. “We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? Are you a sportsman? Do you like to shoot pistols at targets? Well get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”

Because Supreme Court Justices almost never consent to interviews, this interview is fascinating for a look at the “living, breathing document” wing of the Supreme Court. Its view of the Constitution is mere subterfuge for the view that the Constitution means whatever a liberal majority of judges want it to mean at a given moment. Because conservative justices generally view the interpretation of the plain text of the Constitution, supported by the historical record, to be the primary determining factor in understanding the intent of the Founders, the view espoused by Justice Breyer is clearly that of the left — a left that views the Constitution not as America’s primary guarantor of liberty and democracy, but as an antiquated impediment to the imposition of their policies.

The majority decided Heller based on history, including the public and private writings of the Founders, and the plain text of the Second Amendment. One can hardly suggest that the term “the people” does not speak to individual rights in the Second Amendment, yet does so speak in the First, the Fourth, the Ninth and the Tenth Amendments. The Founders were very careful in their language in the Bill of Rights, clearly differentiating between the “United States,” the “States,” and “the people.” That a Justice of the Supreme Court would employ linguistic sleight of hand to avoid acknowledging this fundamental understanding of basic American rights and of the construction of the Constitution is deeply disturbing.

The values based approach advocated by Breyer is nothing more than progressive activism cloaked in pseudo-legalistic jargon. If, ultimately, the intentions of the founders are to be determined based on a mystically derived understanding of their values rather than the clear meaning of the words they so carefully chose, the Constitution has no meaning. Wallace suggested that in following that approach, judges were acting as legislators. Justice Breyer brushed off Wallace’s obviously accurate observation.

Take for example, liberty, which Justice Breyer repeatedly suggested was a concept not easily understood. Should a majority of the Justices hold that the fundamental value connected with it was freedom from fear or respect for order, what draconian police state measure would not be allowable, indeed, even mandated? Under Justice Breyer’s view, it is entirely permissible for entire sections of the United States to deprive citizens of the means to defend their lives, requiring a subway ride to a “free zone” such as Maryland — not generally understood to be a bastion of respect for the Second Amendment — for the merest exercise of a right most Americans consider theirs by birth. No doubt, Justice Breyer would not be so quick to overturn Supreme Court precedent holding the police unaccountable for failing to protect the lives of individuals.

Justice Breyer’s comments on the scope of the Second Amendment are likewise very disturbing. Surely a Justice of the Supreme Court knows that no right is unlimited? Surely he knows that there is no clamor for the keeping of torpedoes and similar weapons and that machine guns are the most tightly regulated class of firearms in America? Is Justice Breyer so isolated that he does not know that American gun owners understand that no right is unlimited, that they are among the most law abiding Americans, and that they accept reasonable regulation of genuine weapons of war such as those he so carelessly bandied about? Such matters are not wrenching, hair-splitting decisions about how many angels can dance on the head of a pin, but commonsensical issues decided and accepted long ago by most Americans. Is Justice Breyer so uninformed, or does he merely think so little of the knowledge and intellects of those whose “unwavering values” he seeks to identify and codify?

In the America of Justice Breyer, Americans would surely be denied the right to possess and employ the most common and effective means of protecting their own lives: handguns. Certainly more effective and potentially deadly weapons, such as shotguns and rifles, would also be banned. And because values are the primary criteria of constitutional interpretation for Justice Breyer, there can be no limit to the restrictions placed on liberty by activist judges because the actual text of the Constitution is not a curb on the understanding and identification of the values of the Founders in light of current political and social reality.

Mr. Obama has already succeeded in appointing a stealth anti-Second Amendment Justice, Justice Sotomayor — who professed her absolute respect for the Second Amendment as a means of securing Senate approval, but voted against freedom in McDonald v. Chicago. In other words, she lied. Justice Breyer, by his own admission, views precedent as subservient to the divination of proper values. There can be little doubt that should progressives gain a Supreme Court majority, the Second Amendment would be quickly rendered null and void. Under such a court, could even a Constitutional Amendment clearly and explicitly, with no prefatory clause, confirming the right of each individual to keep and bear arms, and with crystal clarity specifying not only the types of allowed weapons but such matters as universal concealed carry, have any meaning? Such a court could and certainly would simply find that the values of the Constitution render it unconstitutional. This is not the rule of law, but lawlessness. If words truly have no plain meaning, how can anyone know what local, state or federal law is or is not valid until and unless the Supreme Court has ritually examined its entrails for “values”?

Elections do indeed have consequences, and Justice Breyer has done a public service in revealing America’s future should Barack Obama or anyone remotely like him be able to shift the balance of the Supreme Court away from the rule of law to the whims of “progressive” men. Is there any doubt that the individual mandate of Obamacare would be upheld, and if so, what would the Federal Government be unable to mandate? It would appear that the Election of 2012 is far more important than many understand. More and more, it appears that individual, national, even civilizational survival may depend upon it.

Mike McDaniel is a former police officer, detective, and SWAT operator.

Kagan Hearings Surpass World Cup For Most Boring TV Event

Via-Townhall

Ann Coulter

The two main points being made by Democrats in support of Elena Kagan's nomination to the Supreme Court merely serve to remind us that Democrats are inveterate liars.

First, it has been repeatedly observed how wonderful it is that Ms. Kagan is "someone who's an intellectual heavyweight who's going to give Roberts a run for the money" -- as Sen. Amy Klobuchar, D-Minn., put it.

Whew! Good thing the Democrats got that Hispanic nominee out of the way, so they could appoint somebody with intellectual heft! Hey! What happened to the "wise Latina"? At least now you know what liberals really think of you, Sonia.

Second, liberals are raving about Kagan's "skill at building a consensus ... reaching out and building coalitions" -- as Sen. Dick Durbin, D-Ill., said last week.

It's as if they're talking about a governing majority in the Senate. Next thing you know, liberals will be complaining about a "do nothing" Supreme Court.

On MSNBC's "Hardball" back in May, Sen. Klobuchar said: "We want to get some things done on this court."

Get some things done? Amy Klobuchar is not considered a lunatic, but this was a crazy, giveaway moment. (Durbin is not considered a lunatic, just a hack.)

The Supreme Court is not supposed to be "getting things done." Durbin's and Klobuchar's statements reveal a massive misunderstanding of the role of the court.

Congress, as the people's elected representatives, is supposed to "get things done." If they don't, that usually means the people don't want those things done. It's not the court's job to say: "Hey, Congress, you forgot to enact this! Don't worry, we'll take care of it."

But liberals see the Supreme Court as their backup legislature, giving them all the laws Democrats can't pass themselves because they'd be voted out of office if they did.

Can't get Americans to approve of abortion? Get the Supreme Court to do it! Can't get Americans to ban the death penalty? Get the Supreme Court to do it! Can't get Americans to release criminals? Get the Supreme Court to do it!

Usually Democrats denounce the idea that they want an activist judiciary as a vicious, right-wing lie. But now they're complaining that the court's not activist enough -- and they need Kagan up there to "get some things done"!

Despite the herculean efforts of liberals to redefine "judicial activism" as "overturning laws," the two acts are completely unrelated.

It would be like redefining "terrorist" to mean "airline passenger." Some airline passengers are terrorists and some aren't -- indeed, some battle the terrorists. The two have nothing to do with each other, although, sometimes, both notions come together and you get an airline passenger who's a terrorist -- and blows up the plane.

It makes as much sense to say, "Republicans say they're against 'judicial activism,' but conservative justices strike down laws more than liberals do!" as it does to say, "Republicans claim they're against terrorism, but they fly more than Democrats do!"

Different things.

As former Chief Justice William Rehnquist described the proper role of judicial review in a constitutional democracy, the courts have the last word "as to whether a law passed by the legislature conforms to the Constitution."

It would be every bit as "activist" for the Supreme Court to refuse to strike down a law that violated the Constitution -- e.g., Chicago's anti-gun laws or Congress' restriction of free speech via the campaign finance laws -- as it is for the court to strike down laws that do not violate the Constitution.

We know that laws restricting speech and the right to bear arms violate the Constitution because it says so. The very first two items in the Bill of Rights prohibit the government from infringing on -- I quote -- "the freedom of speech" and "the right of the people to keep and bear arms." You can look it up yourself.

If Congress passed a law banning books critical of the Supreme Court and the court refused to strike down that law, that would be "judicial activism."

Historically, judicial activists have preferred to strike down laws that are perfectly acceptable under the Constitution than to let unconstitutional laws stand. Constitutionally permissible laws include laws against abortion and laws providing for the death penalty.

We know that laws prohibiting abortion do not violate the Constitution because neither abortion, nor its synonyms, nor anything vaguely resembling abortion, is mentioned -- much less granted protected status -- by the Constitution.

And we know that laws providing for the death penalty are permitted by the Constitution because it goes on and on about capital crimes. The Fifth Amendment, for example, says:

-- "No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury";

-- "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb";

-- "nor be deprived of life, liberty, or property, without due process of law."

States are free to ban the death penalty on their own, but the Constitution requires only three things for the imposition of a death sentence: a grand jury indictment, no double jeopardy, and a hearing. The End. Love, the Founding Fathers.

And yet, the Supreme Court banned the death penalty -- even with those three safeguards -- as "unconstitutional" from 1972-1976.

Several justices -- including Kagan's mentor, Justice Thurgood Marshall -- continually voted to ban the death penalty, despite the fact that the Constitution clearly, repeatedly, unquestionably provides for capital punishment.

That's how liberals "get some things done." That's judicial activism.

Sonia Sotomayor Lied In Her Confirmation Hearings

Via-SayAnythingBlog.com

This is from Sonia Sotomayor, responding to a question about her stance on 2nd amendment rights during the Senate confirmation hearings for her appointment to the Supreme Court:

I understand the individual right fully that the Supreme Court recognized in Heller.

She’s referring to the DC vs. Heller case which recognized gun rights as individual rights and declared unconstitutional the federal ban on firearms in Washington DC. But in the McDonald vs. Chicago case, which extended Heller to a state-level gun ban, Sotomayor joined the dissent saying:

In sum, the Framers did not write the Second Amendment in order to protect a private right of armed self defense.

I think the framers themselves, per their writings contemporaneous to the Constitution and the Bill of Rights, would disagree with Sotomayor.

But then, Sotomayor disagrees with herself. Yet, she’ll be on the Supreme Court for at least the next couple of decades.

Which makes me wonder why we even have nomination hearings for these appointments. The nominee is almost never denied approval. The nominee’s usually misrepresent themselves, their politics, their judicial philosophy and their backgrounds.

It seems as though there’s no point, other than to provide a stage for more of the ceaseless political theater we get out of Washington DC.

Stay Out of the Mainstream

Via-Rasmussen Report

by Tony Blankley

There seems to be one thing on which everyone can agree. From archconservative pundits to archliberal White House staffers responsible for Solicitor General Elena Kagan's confirmation to the Supreme Court, all agree that the test is whether she is in the "mainstream of current legal thought."

But it would seem to me that such a standard only makes sense if you approve of where the mainstream currently is. For instance, left-wing statists -- who believe in almost unlimited powers of government, who heartily approve of the Supreme Court's ruling in Kelo v. New London (which authorized a city to take non-blighted private property from its lawful owner and give it to someone else solely so the city can make more money), who believe that the Interstate Commerce Clause authorizes Congress to regulate every action or inaction of everyone living south of Canada and north of Mexico -- would like all current and future court nominees to enjoy wading in the current mainstream.

But wouldn't it make sense for those of us who believe in original intent (and in this instance "us" would seem to include almost all Republican senators, based on their public statements) to support only nominees who hold to the standard of the mainstream of legal thought as of Sept. 17, 1787, when the writing of the Constitution was completed (or perhaps as of March 4, 1789, when the Constitution went into effect)?

After all, James Madison, who largely wrote the Constitution, obviously would be unqualified to interpret it today because it is a mathematical certainty that he would be appalled at the "mainstream of current legal thought."

For instance, consider a leering Democratic senator grilling Madison in 2010 on his views concerning the current mainstream theory of "a living Constitution," which requires that the Constitution be viewed in the context of today's events. Being an honest man, Madison would have to repeat what he said whilst he was alive: "Do not separate text from historical background.

If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government."

Oh, dear, that puts Madison dangerously outside the current mainstream.

Or what if a sensible, moderate Republican senator were to inquire helpfully of Madison whether he sees any constitutional problem with Congress authorizing bureaucrats to promulgate hundreds of thousands of complex detailed requirements to enforce a universal health law. Again, citing his statements back in his living days, the honorable Madison would be compelled to testify: "It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."

The notional senator doubtless would turn to the cameras and say: "My, my, what a Neanderthal backwoodsman this Madison character is -- so out of the current mainstream of legal thought. How in the world could our federal government provide all the current and future 'services and benefits' to the citizens, if such thinking were permitted on the Supreme Court?"

That notional question is, of course, at the heart of what is quickening the countless millions in the Tea Party movement. If the Supreme Court would follow the dictates of the Constitution, much of the vast deficit-creating, individual-freedom-crushing current laws of the land would be unconstitutional.

Thus, Republican senators need to understand that, notwithstanding all their fine statements over the years about looking for justices who believe in "original intent" and don't believe in "creating law from the bench" will be for naught when the Tea Party voters measure those Googled words against the senator's Googled vote for Ms. Kagan because she is in the
"mainstream of current legal thought." Changing the mainstream of current legal thought is a big part of what the November election is about.

Not just Tea partiers, either. According to Gallup's most recent poll in 2009, 59 percent of Democrats like the ideology of the Supreme Court, but 58 percent of Republicans are not satisfied with its current ideology. Just 9 percent of Democrats think the court is too liberal, while 49 percent of Republicans think it is too liberal.

So when a Republican senator considers the appropriate standard for judging Ms. Kagan's fitness for the high court, he should not be fooled by the responsible-sounding phrase "in the mainstream of current legal thought."

Rather, he or she should fall back on his own often-repeated original-intent, conservative standard and filibuster the brilliant Ms. Kagan's confirmation vote precisely because she is in the current mainstream-- a location that has been deeply dredged by Franklin D. Roosevelt and his progeny for the past 75 years.

This November's voters look forward to the day when Madison once again would be found in the mainstream of current legal thought -- as he was when he formed the original stream.

Gun Shy

Via-REASON

Four Supreme Court justices make the case against constitutional rights.

Jacob Sullum

On Monday the Supreme Court ruled that the Second Amendment applies to states and cities as well as the federal government. Judging from their objections, the four dissenters were still reeling from the Court's landmark 2008 decision recognizing that the amendment protects an individual right to keep and bear arms.

In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives.

What if the people want to ban books that offend them, establish an official church, or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide.

Likewise, Stevens defends "state and local legislatures' right to experiment," while Breyer is loath to interfere with "the ability of States to reflect local preferences and conditions—both key virtues of federalism." Coming from justices who think Congress can disregard state decisions about the medical use of marijuana because a plant on the windowsill of a cancer patient qualifies as interstate commerce, this sudden concern about federalism is hard to take seriously.

Another reason to doubt the dissenters' sincerity: They would never accept federalism as a rationale for letting states "experiment" with freedom of speech, freedom of religion, or due process protections. Much of their job, as they themselves see it, involves overriding "local preferences" that give short shrift to constitutional rights.

Second Amendment rights are different, Breyer says, because "determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions." So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence, or allowing warrantless pat-downs, dog sniffs, or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is "narrowly tailored to serve a compelling state interest" and is the "least restrictive means" of doing so.

But unlike equal protection or freedom of speech, Stevens says, "firearms have a fundamentally ambivalent relationship to liberty." How so? "Just as they can help homeowners defend their families and property from intruders," he explains, "they can help thugs and insurrectionists murder innocent victims."

Every right can be abused, with results that are immoral, illegal, or both. Freedom of speech can be used to spread hateful ideas, promote pernicious political philosophies, slander the innocent, or engage in criminal conspiracies. If there were no potential for harm from exercising a right, there would be no need to protect it, because no one would try to restrict it.

The dissenters' most frivolous objection is that making states obey the Second Amendment "invites an avalanche of litigation," as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth, or Eighth amendment. Neither Stevens nor Breyer wants to stop this "avalanche." Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Stevens warns that "the practical significance of the proposition that 'the Second Amendment right is fully applicable to the States' remains to be worked out by this Court over many, many years." But that's because the Court for many, many years ignored the Second Amendment while gradually defining the contours of its neighbors in the Bill of Rights. There is a lot of catching up to do.

Video-Kagan argueing before SOTUS

What is most disturbing about this is that 4 justices sided with her as well as many Americans who see corporations as a bigger threat to our freedoms than government destruction of our First Amendment Rights. A classic example of throwing out the baby with the bath water, but unfortunately; for progressives like Obama and Kagan they just want to boil the baby (free speech) in the bath water.

Video-Or: "where's the beef?"

Via-

McDonald and how gun rights were essential to black civil rights

Via-Washington Examiner

By: David Freddoso

Within the text of the 214-page Supreme Court ruling on gun rights is a history lesson on how Americans’ right to keep and bear arms was a major issue in the struggle for black civil rights in the South after the Civil War. To wit, Southern resisters, black codes and lawless lawmen attempted to disarm freedmen (usually in order to make them more vulnerable to racist terrorism), and the federal government came to their rescue by protecting their 2nd Amendment rights.

The quotations and detailed references leave absolutely no question that Congress and the ratifiers of the 14th Amendment viewed it — and accompanying post-war civil rights legislation — as a safeguard against state infringement of the 2nd Amendment right of the people to keep and bear arms. It’s not a part of our history that the Left has much stomach for, but fewer people argue against the obvious now that the Democratic Party has all but conceded the gun issue.

I’ve removed the references and footnotes for clarity (you can get them all in the original PDF) and reproduced this section of Justice Alito’s opinion at length below:

* * *

By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights — the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense. Abolitionist authors wrote in support of the right. And when attempts were made to disarm “Free-Soilers” in “Bloody Kansas,” Senator Charles Sumner, who later played a leading role in the adoption of the Fourteenth Amendment, proclaimed that “[n]ever was [the rifle] more needed in just self-defense than now in Kansas.”

More questions for nominee Elena Kagan

Via-WAPO

Pursuant to Elena Kagan's expressed enthusiasm for confirmation hearings that feature intellectual snap, crackle and pop, here are some questions the Senate Judiciary Committee can elate her by asking:

-- Regarding campaign finance "reforms": If allowing the political class to write laws regulating the quantity, content and timing of speech about the political class is the solution, what is the problem?

-- If the problem is corruption, do we not already have abundant laws proscribing that?

-- If the problem is the "appearance" of corruption, how do you square the First Amendment with Congress restricting speech to regulate how things "appear" to unspecified people?

-- Incumbent legislators are constantly tinkering with the rules regulating campaigns that could cost them their jobs. Does this present an appearance of corruption?

-- Some persons argue that our nation has a "living" Constitution; the court has spoken of "the evolving standards of decency that mark the progress of a maturing society." But Justice Antonin Scalia, speaking against "changeability" and stressing "the whole antievolutionary purpose of a constitution," says "its whole purpose is to prevent change -- to embed certain rights in such a manner that future generations cannot readily take them away. A society that adopts a bill of rights is skeptical that 'evolving standards of decency' always 'mark progress,' and that societies always 'mature,' as opposed to rot." Is he wrong?

-- The Ninth Amendment says: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The 14th Amendment says no state may abridge "the privileges or immunities" of U.S. citizens. How should the court determine what are the "retained" rights and the "privileges or immunities"?

-- The 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people") is, as former Delaware governor Pete du Pont has said, "to the Constitution what the Chicago Cubs are to the World Series: of only occasional appearance and little consequence." Were the authors of the Bill of Rights silly to include this amendment?

-- Should decisions of foreign courts, or laws enacted by foreign legislatures, have any bearing on U.S. courts' interpretations of the Constitution or federal laws (other than directly binding treaties)?

-- The Fifth Amendment says private property shall not be taken by government for public use without just compensation. But what about "regulatory takings"? To confer a supposed benefit on the public, government often restricts how persons can use their property, sometimes substantially reducing the property's value. But government offers no compensation because the property is not "taken." But when much of a property's value is taken away by government action, should owners be compensated?

-- In Bush v. Gore, which settled the 2000 election, seven justices ruled that Florida vote recounts that were being conducted in different jurisdictions under subjective and contradictory standards were incompatible with the Constitution's guarantee of "equal protection of the laws." Were they right?

-- In Bush v. Gore, five justices held that Article II of the Constitution gives state legislatures plenary power to set the rules for presidential elections. The Florida legislature fashioned election rules to produce presidential electors immune from challenge by Congress. But the legislature said that immunity depended on electors being chosen by a certain date, which could not be met if further recounts were to ensue. The court held that allowing more recounts would have contravened the intent of Florida's legislature. So the recounts were halted. Was the court's majority correct?

-- Justice Thurgood Marshall, for whom you clerked, said: "You do what you think is right and let the law catch up." Can you defend this approach to judging?

-- You have said: "There is no federal constitutional right to same-sex marriage." But that depends on what the meaning of "is" is. There was no constitutional right to abortion until the court discovered one 185 years after the Constitution was ratified, when the right was spotted lurking in emanations of penumbras of other rights. What is to prevent the court from similarly discovering a right to same-sex marriage?

-- Bonus question: In Roe v. Wade, the court held that the abortion right is different in each of the three trimesters of pregnancy. Is it odd that the meaning of the Constitution's text would be different if the number of months in the gestation of a human infant were a prime number?

Under the Radar

With all the news this week and the passing of Robert Byrd, a significant event occurred yesterday which will probably be overlooked. Martin D. Ginsburg, husband of Ruth Bader Ginsburg passed away on Sunday, may he rest in peace. 

The significance of this is that it is even more likely than it already was that Ruth Bader Ginsberg will soon step down from the Supreme Court. She too has been ill for some time and with her husband's passing it would not be a surprise if she left the court to spend more time with her family, she has two children and four grand children.

It would not surprise me if by the time he leaves office, Obama will have selected nearly half the Supreme Court, more if he is somehow elected to another term. 

EDITORIAL: The case against Kagan

By THE WASHINGTON TIMES

Solicitor General Elena Kagan is too political, too leftist, too inexperienced and too disrespectful towards existing law to be confirmed for the U.S. Supreme Court. As Ms. Kagan's nomination hearings begin on Monday, what we now know about her should disturb fair-minded Americans, and should embolden moderate senators of both parties to avoid rubber-stamping her for a lifetime appointment. The pressure should be most intense not on Republicans, but on Democrats who claim moderation and yet try to explain away Ms. Kagan's history of leftist proselytizing.

No amount of personal charm on Ms. Kagan's part should obscure her actual record. Here's what we know about this former dean of Harvard Law School:

We know she is remarkably lacking in courtroom experience. Until Ms. Kagan became solicitor general, she not only had never been a judge, but she also had not even argued a single appeals case in her entire career. Her few arguments as solicitor general have been undistinguished. In one, the justices had to remind her that she was to answer their questions, not ask them questions of her own.

We know she deliberately ignored the law while at Harvard, and unfairly besmirched our military in time of war. The facts are simple. A law known as the Solomon Amendment made it illegal to keep military recruiters off of college campuses. An appeals court ruled that the law should be overturned but immediately made its own ruling inapplicable until it could be reviewed by the Supreme Court. Then-Dean Kagan barred the recruiters from campus anyway, thus flouting the law. She called the military's "Don't Ask, Don't Tell" rule on homosexual practices "a moral injustice of the first order," even though she herself had served in the Clinton White House that developed the "Don't Ask, Don't Tell" rule in the first place. Then, when she supported a challenge to the Solomon Amendment, the Supreme Court ruled against her position 8-0 - an overwhelming rejection of her anti-military stance.

Somebody who openly flouts the law should not be one of the law's ultimate arbiters.

We know she cut corners in order to preserve partial-birth abortions. Vast majorities of the American public oppose partial-birth abortion, which involves crushing the skull of a partially born baby and which the late Sen. Daniel Patrick Moynihan characterized as, for all intents and purposes, open "infanticide." Yet when serving as a legal adviser to former President Bill Clinton, Ms. Kagan deliberately withheld from the president a finding by the American College of Obstetricians and Gynecologists that partial-birth abortion is virtually never "the least risky, let alone the 'necessary,' approach." As accurately summarized by the National Right to Life Committee, the result was this: "Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade."

We know she is willing to undercut First Amendment free speech for political purposes. Ms. Kagan argued before the Supreme Court that the law should be read to allow the government to prohibit the publication of political pamphlets. In a nation stirred to its own founding by political pamphlets such as "Common Sense" and "The Federalist Papers," this is an extremely disturbing position. Ms. Kagan also has written of the benefits of "redistribution of expression," and has written that speech rights are to be "dol[ed] out" as a "favor" from government rather than being pre-existing rights that government cannot take away. She has argued that government would be justified in "disfavoring [an] idea [to] 'unskew,' rather than skew, public discourse."

We know Ms. Kagan is hostile to gun rights. Curt Levey of the conservative Committee for Justice has closely and fully analyzed the record. His conclusion is worth quoting in full: "When it comes to firearms, Elena Kagan's liberal bias stands out again and again throughout the documents. The Second Amendment consistently plays second fiddle to gun control in Kagan's analysis across issues such as gun-show regulations, trigger-lock mandates, the Brady Bill, municipal lawsuits against gun manufacturers, the congressional ban on assault weapons, an executive order banning semiautomatic weapons, use of executive agencies to push gun safety, use of state and local police to conduct background checks, and even the fundamental question of whether individuals have any Second Amendment rights."

We know she believes foreign law is highly relevant to U.S. law. In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to "a transnational perspective" as being "foundational" as "part of the core of legal thought and activity in this new century." To be clear, she said, "I think the solicitor general's office should offer reasonable foreign law arguments." While she was dean, Harvard Law added "International- Comparative Law" as a course requirement for graduation, but the school dropped the requirement for constitutional law.

We know she believes judges should automatically favor certain classes of people and impose their own values to reach desired outcomes. In short, judges should be super-legislators. We know she believes this because she has written as much. She wrote in 1993 that it is a "thing of glory" for the Supreme Court to see its primary mission as "show[ing] a special solicitude for the despised and disadvantaged." She has acclaimed as her greatest "judicial hero" the radical Israeli judge Aharon Barak, who openly bragged that his "judicial philosophy is enshrined in the recognition that his role is to create rights." Not enforce rights recognized by the people, but create those rights himself. That's dangerous, yet it echoes what Ms. Kagan herself wrote in her Oxford University thesis in 1983, namely that "as participants in public life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals. ... And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid."

And we know lots of other things about Ms. Kagan. She believes states should be forced to recognize purported marriages performed in other states (presumably such as homosexual "marriage") even if their own policies forbid it. She used her job as legal analyst to make political judgments about how various legal stances would benefit Democrats over Republicans. She supported a policy to allow human embryos to be cloned and killed. She said she "loved" the vicious character assault on Judge Robert Bork when he was nominated for the Supreme Court in 1987. And she once wrote that she hoped for "a new, revitalized, perhaps more leftist left."

If those are Elena Kagan's goals, let her run for elective office. But keep her far away from the nation's highest court, where justices are supposed to serve the law, not create it.

The Best Speech Those High School Grads May Ever Hear

Via-Commentary

Jennifer Rubin

Justice Antonin Scalia gave a high school commencement address last week. As he routinely does on the Supreme Court and in his public speeches on judicial philosophy, he took modern platitudes that have become conventional wisdom and dismantled them. The gist of it was this:

[A] platitude I want to discuss comes in many flavors. It can be variously delivered as, “Follow your star,” or “Never compromise your principles.” Or, quoting Polonius in “Hamlet” — who people forget was supposed to be an idiot — “To thine own self be true.” Now this can be very good or very bad advice. Indeed, follow your star if you want to head north and it’s the North Star. But if you want to head north and it’s Mars, you had better follow somebody else’s star. …

Movement is not necessarily progress. More important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly. Nobody — remember this — neither Hitler, nor Lenin, nor any despot you could name, ever came forward with a proposal that read, “Now, let’s create a really oppressive and evil society.” Hitler said, “Let’s take the means necessary to restore our national pride and civic order.” And Lenin said, “Let’s take the means necessary to assure a fair distribution of the goods of the world.”

In short, it is your responsibility, men and women of the class of 2010, not just to be zealous in the pursuit of your ideals, but to be sure that your ideals are the right ones. That is perhaps the hardest part of being a good human being: Good intentions are not enough. Being a good person begins with being a wise person. Then, when you follow your conscience, will you be headed in the right direction.

This is anathema to the left, of course. For the left, “self-realization” is the highest ideal. And results matter so much less than their heartfelt intention and their hard work (for which they never tire of seeking approval). Moreover, Scalia’s notion that there are “right ideals” is no doubt horrifying to the moral relativists and cultural levelers.

Scalia also offers up a refreshing dose of humility in a world in which those with minimal life experience and capabilities not only assert that their own insights, hunches, preferences, and cravings are worth pursuing but also dare not be second-guessed. Scalia contends that it is essential to look to external, fixed principles and reminds us how easy it is to confuse your own desires with morally superior goals.

Yes, there’s a bit of judicial philosophy in there. (It doesn’t matter what you’d like the Constitution to say; it only matters what it does say and what those who wrote it intended.) And, yes, there is a jab at Obama implicit in Scalia’s indictment of the mindset of the left. As the epitome of the sort of condescending, self-important, and egocentric liberal who dominates universities and the media, Obama exhibits much of what Scalia deplores. The president and his spinners never tell us how hard he works. To combat criticism that his policies are destructive and wrongheaded (e.g., his stance toward Israel, a time table for troop withdrawal in Afghanistan), he reiterates the purity of his intentions (devoted to Israel, he says) and boasts about how thoughtful his decision-making is (what president could conducts months of seminars on Afghanistan?). All this is meant to substitute for or distract us from evaluating the rightness of the decisions, the effectiveness of his conduct, and the gap between his ideology and reality.

Scalia’s is a simple and poignant plea for personal restraint and objective truth. It’s not only what underlies his judicial philosophy, but it is a fine recipe for maintaining a just and decent society. It’s also a helpful reminder to avoid presidential aspirants whose emotional and intellectual habits resemble those of incoming college freshmen.

Harvard Law Dean Kagan Replaced Constitution Studies With International Law

Via- The New American

Joe Wolverton, II

On May 10, 2010, President Obama nominated Elena Kagan to the Supreme Court to fill the vacancy from the impending retirement of Justice John Paul Stevens at the end of the Supreme Court's 2009–2010 term. A significant entry in the catalog of Ms. Kagan’s remarkable achievements is her deanship of the über-prestigious Harvard Law School. In 2003, she was named, as the school’s first female dean, to succeed Robert C. Clark, who had held that post for over a decade. While manning the helm at Harvard Law, she attracted attention of alumni and observers for steering the ship away from the tried and true “case-law method” of studying the law.

A central plank in Kagan’s revolutionary platform is the abandonment of the requirement that first year law students study U.S. constitutional law. The course’s place in the curriculum was replaced by classes examining the laws of other nations and international law.

In fact, according to the requirements for receiving a J.D. as listed on the Harvard Law School website, the study of our republic’s founding document is nowhere to be found.

In 2006, after the changes were proposed by Kagan and approved by the faculty committee evaluating the suggestions, the school published a news release to explain the changes and Kagan offered the following justification for the abandonment of constitutional law studies:

“From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems. Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law.”

The press release identifies the three new required courses Kagan introduced to replace constitutional law. The first covers comparative international law and was designed to “introduce students to the sources, institutions and procedures emerging over time through the bilateral and multilateral arrangements among states as well as the participation of nongovernmental actors.”

The second class, called “Legislation and Regulation” is designed to familiarize students with he world of legislation, regulation, and administration that creates and defines so much of our legal order.” In other words, the regulations and codes promulgated by the bureaucracy are more critical to the definition of our legal order than is the Constitution.

The final course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said. Again, Elena Kagan, President Barack Obama’s nominee to sit on the Supreme Court, believes a survey of “legal systems outside our own” is more valuable than a study of the Constitution.

Apart from the statements included in the press release, Elena Kagan explained her justification for the curriculum changes she instituted at Harvard in a 2008 article published in The Green Bag, a legal journal dedicated to publishing brief, readable articles about the law. In the piece, Kagan explained why she felt it necessary to replace constitutional law studies with classes geared to equipping lawyers with “tools for all the roles they will be called on to play."

One of the very important roles that these future leaders will play, according to the article, is the quest to find workable solutions to problems “ranging from climate change to terrorism to economic insecurity."

Neither the press release nor The Green Bag article indicates why Kagan believed that these classes could not be added to the curriculum without jettisoning the study of the Constitution.

While the benefits of the courses of study created by Elena Kagan are debatable, it is difficult to find a single sound argument for the abolition of the study of constitutional law. That is not to say that a class improving students’ international perspective is unnecessary. As a matter of fact, many of our own Founding Fathers made the study of international law one of the key aspects of their own education in anticipation of the Constitutional Convention of 1787.

The unanswered question is: Why could Elena Kagan not find room for these new classes without eliminating constitutional law study? Why was it an either/or situation, and why did she come down on the side of international and regulatory law and against the Constitution?

It would be similar to the English Department at Harvard determining that Shakespeare would no longer be required reading for students interested in a PhD in Elizabethan English literature.

Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation, reckons that the changes made by Kagan at Harvard offer a glimmer of insight into Kagan’s perception of the Constitution and its place in American jurisprudence. Even a scintilla of evidence is valuable given the dearth of reliable indications of Kagan’s constitutional mien.

“One of the things [that] we don’t know about Kagan, which she has not been terribly forthcoming on in previous questioning (during her nomination) for solicitor general, is how she views international law,” Alt said. “Should domestic law be influenced or modified by international law? We don’t know what she thinks.”

Article 2, Section 2 of the United States Constitution grants the president power to nominate and appoint, with the advice and consent of the Senate, judges of the Supreme Court. It is the responsibility of the Senate to enquire into Elena Kagan’s constitutional bent and her propensity for interpreting our foundational document in a manner consistent with established principles of federalism, separation of powers, and limited government.

As Mr. Alt, understandably concerned with the message sent by Kagan’s removal of constitutional law from the basic curriculum of Harvard Law School, observed, “This is an important question because there are others in the Obama administration, like Harold Koh, for instance, who have suggested with regard to the First Amendment, for instance, that perhaps the First Amendment should be modified in some way in accordance with international norms, in order to facilitate compliance with international agreements.” Harold Koh is the Legal Adviser to the Department of State and is controversial for his advocacy of using tenets of international law and foreign legal precedent to inform the deliberative process of judicial decision making in the United States.

The First Amendment that Koh would "modify" reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Toon

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Senate v. The Constitution

Via-RCP


By David Harsanyi

With all the praise being heaped on departing Supreme Court Justice John Paul Stevens, a person might have forgotten momentarily that the man spent a good chunk of the past two decades working to soften up the Constitution.

Rest assured, his replacement will take to the task capably -- empathy above justice, and all that -- but what I really look forward to is the confirmation battle because Democrats, according to Politico, plan to turn Senate hearings into a referendum on "corporations vs. the common man."


According to the story, Senate Judiciary Committee Chairman Pat Leahy's political strategy will be offered up in a simple question: "Do you share our concern about the fact that the court always seems to side with the big corporate interests against the average American?"

One would think that the victor (and to contend that the court "always" sides with big corporate interests is preposterous) would be less significant than the constitutional merits of the decisions.

Then again, ginning up anger about corporations is always a useful distraction, because what Leahy is really asking is this: Do you share our concern that the Constitution, too often interpreted as written, is holding back an empathetic and enlightened progressive agenda?

You remember the outrage over Citizens United v. Federal Election Commission? In that case, some "average Americans" decided to produce a political film about Hillary Clinton. It was censored by the FEC because, as everyone knows, the First Amendment should not apply to unsavory characters who've gotten themselves mixed up with corporate interests.

Lest anyone forget, Stevens -- in a spirited dissent -- sided with government, who argued that even books (no more legitimate a vessel for political speech than any other, actually) could be banned by government through campaign finance laws if necessary.

So Leahy, who believes Stevens is a model jurist, likely will ask many piercing questions (How evil is corporate America, Nixon evil or merely Nazi evil?) in defense of average Americans.

But I wonder whether the average American believes, like Justice Stevens, that an unelected federal agency, such as the Environmental Protection Agency, should bypass Congress and, by fiat, regulate carbon dioxide, a chemical compound that permeates everything, without any consideration for cost or imposition or the electorate?

Do most average Americans, like Justice Stevens -- who dissented on the landmark Second Amendment case of District of Columbia v. Heller -- believe that once a judge deems something dangerous enough, that judge should empower government to ban it, even though that something happens to be explicitly protected by a constitutional amendment?

Do they believe, like Justice Stevens, that government should continue to use racial quotas and preferences rather than allow citizens the freedom to succeed or fail on their own merits -- or even their own luck -- rather than on the color of their skin?

Do they believe, like Justice Stevens, that local government should be permitted to throw American citizens off their own property and out of their homes? Do they concur that government should then be able to hand that property over to other private citizens simply because they can pay more taxes? Because, in Kelo v. City of New London, Stevens, writing for the majority, radically expanded the idea of property as "public use."

It's no mystery why Leahy would want to turn the tables on conservatives and make the confirmation hearing about corporations rather than the Constitution or the reckless manner in which justices like Stevens treat it. I would do the same if my agenda's success were tied intricately to the pliability of the document.

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Probable Constitutional Challenges to ObamaCare

Beware Democrats: If you pass ObamaCare, a constitutional hurricane is headed right for you.

Via-Pajamas Media

If the president signs H.R. 3590 (whether or not the bill is reconciled, “slaughter ruled,” and/or deemed in its passage), the legislation will be challenged on constitutional grounds. Let’s look at a few of the ways that federal control of health care, and H.R. 3590 in particular, is unconstitutional.

House Majority Leader Steny Hoyer was asked where in the Constitution Congress was granted the power to mandate that a person must buy a health insurance policy. His answer:

Well, in promoting the general welfare the Constitution obviously gives broad authority to Congress to effect that end. The end that we’re trying to effect is to make health care affordable, so I think clearly this is within our constitutional responsibility.

The “general welfare” clause Hoyer was referring to is in the first line of Article I, Section 8 of the Constitution. This section specifically enumerates the powers of Congress. (The list is very short. Congress has 17 listed, or “enumerated,” powers. Health care isn’t one of them.)

The first line of Article I, Section 8 states, in part:

The Congress shall have Power To … provide for the … general Welfare of the United States … [Emphasis added.]

Notice that this first sentence does not say, “The Congress shall have the Power to provide for the general welfare of the citizens of the United States.”

Every time the phrase “United States” is used in the Constitution, it denotes the federal (or central) government. This is clearly seen in Tenth Amendment where the “United States,” the “states,” and “the people” are three distinct concepts:

Amendment 10 The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [Emphasis added.]

It follows that the power to provide for the “general Welfare of the United States” only applies to the day-to-day operations of the federal government (e.g., Hoyer’s paycheck, hiring congressional staff, providing office furniture, etc.). The “general welfare” clause has nothing to do with the citizens of the United States. If it did, the list of enumerated powers that follow the clause, in Article I, Section 8, would have been redundant — since Congress would already have, from the “general welfare” clause, the power to do whatever it wanted to do to promote the welfare of the citizens of the United States. This is Hoyer’s claim.

Health care is reserved, according to the Constitution (especially given the text of the Ninth and Tenth Amendments), to the individual states and/or to the people.

But the words of the Constitution don’t seem to matter much to this Congress.
When Nancy Pelosi was asked, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?” Pelosi replied, “Are you serious? Are you serious?”

Pelosi may not think the Constitution is a serious matter, but some people do. The governor of the state of Idaho this week signed into law House Bill 391 — the “Idaho Health Freedom Act.” According to the AP, more than 35 other states are considering similar legislation.

The power to require or regulate a person’s choice in the mode of securing health care services, or to impose a penalty related thereto, is not found in the Constitution of the United States of America, and is therefore a power reserved to the peoplepursuant to the Ninth Amendment, and to the several states pursuant to the Tenth Amendment.

The state of Idaho hereby exercises its sovereign power to declare the public policy of the state of Idaho regarding the right of all persons residing in the state of Idaho in choosing the mode of securing health care services.

It is hereby declared that the public policy of the state of Idaho, consistent with our constitutionally recognized and inalienable rights of liberty, is that every personwithin the state of Idaho is and shall be free to choose or decline to choose any mode of securing health care services without penalty or threat of penalty.

There’s a constitutional problem for you.

The Washington Post has reported that under the final version of the national health care bill, “all Americans would be required for the first time to obtain insurance or face an annual penalty of $695; employers could face penalties of $2,000 per worker for not offering affordable coverage.”

Not in Idaho they won’t. The attorney general of the state of Idaho (and attorneys general in the other states rushing to pass similar legislation) is, no doubt, working right now on a lawsuit to defend his state’s law and to challenge the constitutionality of ObamCare.

There are a number of other possible constitutional challenges if the national health care legislation becomes the law of the land. Look for private citizens and employers who are fined under the new law to sue under the First, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments.

Challenges may come under the First Amendment for religious reasons. Exemptions in the bill aside, there will be members of some religion that hasn’t been exempted and those members will sue.

Suits under the Fourth Amendment will be filed when the IRS seizes some working gal’s wages as a “fine” for not having health care. The Fourth Amendment prohibits unreasonable searches and seizures.

These same citizens will sue under the Fifth and Sixth Amendments for similar reasons. It is difficult to sue the federal government (especially the IRS). But it is precisely the IRS, under ObamaCare, that will enforce and collect fines without the access of the citizens to either due process (Fifth Amendment) or a jury trial (Sixth Amendment).

Constitutional lawsuits may also be brought by private citizens under the Ninth and Tenth Amendments for reasons given above.

Depending on the last-minute shenanigans, members of the Congress who oppose the measure may also have standing to sue under Article I, Section 5 (if the rules of either the House or Senate are violated or disregarded) and/or under Article I, Section 7. (Article 7 states: “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”)

And that is the short list of possible constitutional challenges. Beware Democrats: if you pass ObamaCare, a constitutional hurricane is headed right for you.

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Down Memory Lane

Via-Power Line

If you don't read anything else today, read Byron York's searing account of what happened last time a brilliant Hispanic jurist was nominated to a high-profile appellate post:

Born in Honduras, [Miguel] Estrada came to the United States at 17, not knowing a word of English. He learned the language almost instantly, and within a few years was graduating with honors from Columbia University and heading off to Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy, was a prosecutor in New York, and worked at the Justice Department in Washington before entering private practice.

Estrada's nomination for a federal judgeship set off alarm bells among Democrats. There is a group of left-leaning organizations -- People for the American Way, NARAL, the Alliance for Justice, the Leadership Conference on Civil Rights, the NAACP, and others -- that work closely with Senate Democrats to promote Democratic judicial nominations and kill Republican ones. They were particularly concerned about Estrada.
In November, 2001, representatives of those groups met with Democratic Senate staff. One of those staffers then wrote a memo to Democratic Sen. Richard Durbin, informing Durbin that the groups wanted to stall Bush nominees, particularly three they had identified as good targets. "They also identified Miguel Estrada as especially dangerous," the staffer added, "because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment. They want to hold Estrada off as long as possible."

It was precisely the fact that Estrada was Hispanic that made Democrats and their activist allies want to kill his nomination. They were determined to deny a Republican White House credit, political and otherwise, for putting a first-rate Hispanic nominee on the bench.

They succeeded, too. They filibustered Estrada for years and he never made it onto the bench. So, when you see Barack Obama--who voted to filibuster Sam Alito!--piously denouncing "the political posturing and ideological brinksmanship that has bogged down this process" in the past, remember Miguel Estrada. Somewhere on this earth, there is a worse hypocrite than Barack Obama. I just can't think who he is offhand....


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