CONSTITUTION: Duty of the Judiciary

Ladies and Gentlemen, What is the Duty of the Supreme Court?  This is Simple!

“the power of the people is superior to both, ” (the legislature and the judiciary) , AND 

“duty (of the Courts) it must be to declare all acts contrary to the manifest tenor of the Constitution voidWithout this, all the reservations of particular rights or privileges would amount to nothing.”  Alexander Hamilton on the duty of the Judicial Branch

OR, do this?

“The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. … As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.””  John Roberts, pp.32-33 “obamacare opinion”

The Federalist Papers were articles written and published, which explained the INTENDED MEANINGS of the PROPOSED u.s. constitution, before ratification.  I have provided the link to the entire article and have copied much of the actual article Alexander Hamilton wrote.  Alexander Hamilton describes and explains the CONSTITUTIONAL DUTIES of the Supreme Court by the DESIGN of the proposed constitution.  A constitution of limited powers, LIMITED by DESIGN.

The DUTY of the Court to UPHOLD the CONSTITUTION and the INDIVIDUAL RIGHTS of the MAN, over the “encroachments, oppressions.”

Note the use of the terms, LIMITED/LIMITATIONS, FUNDAMENTAL, VOID, CONTRARY TO THE CONSITUTION, ENCROACHMENTS, OPPRESSIONS…

I now will ask you to read the words of one of our FOUNDERS, not my words.  You may read the entire Federalist 78 here.

Alexander Hamilton, explained in Federalist 78, the powers and RESPONSIBILITY of the Judiciary.

BEGIN QUOTE:

“According to the plan of the convention, all judges who may be appointed by the United States are to hold their offices during good behavior;

In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution.

By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Some perplexity respecting the

rights of the courts to pronounce legislative acts void, because contrary to the Constitution,

has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.

No legislative act, therefore, contrary to the Constitution, can be valid.

To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master;

that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution.

It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents.

It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

The interpretation of the laws is the proper and peculiar province of the courts.

A constitution is, in fact, and must be regarded by the judges, as a fundamental law.

It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words,

the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that

the power of the people is superior to both;

and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body.

Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

But it is not with a view to infractions of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.

These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may be aware of. The benefits of the integrity and moderation of the judiciary have already been felt in more States than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested.

Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that

they should be bound down by strict rules and precedentswhich serve to define and point out their duty in every particular case that comes before them;

and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind,

that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established good behavior as the tenure of their judicial offices, in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS”

END QUOTE.

Ladies and Gentlemen,

I ask you to read the new “health care law” case  in its entirety and consider if the current Supreme Court followed the Spirit of the Constitution as espoused by Alexander Hamilton.  I submit to you the court did exactly what John Roberts said here “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality” instead of Alexander Hamilton’s direction here A constitution is, in fact, and must be regarded by the judges, as a fundamental law.” and  “guard the Constitution and the rights of individuals from the effects of those ill humors…”

Respectfully, texas

40 thoughts on “CONSTITUTION: Duty of the Judiciary

  1. I have used the words of our Founder, Alexander Hamilton, and John Roberts. Links to a copy of “Federalist 78” or the actual Supreme Court opinion on the Supreme Courts website, are in this post. I ask, respectfully, that only serious and thoughtful questions be asked or suggested.

    • So that it is CLEAR to EVERYONE, I have just made the MY words, “sea green” in color. All of the other words are QUOTES from Alexander Hamilton’s Federalist 78, or John Roberts recent Supreme Court Opinion on “Obamacare”.

    • “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and carries his banner openly. But the traitor moves amongst those within the gate freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears not a traitor; he speaks in accents familiar to his victims, and he wears their face and their arguments, he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of the city, he infects the body politic so that it can no longer resist. A murderer is less to fear. The traitor is the plague.”

      Marcus Tullius Cicero quotes (Ancient Roman Lawyer, Writer, Scholar, Orator and Statesman, 106 BC-43 BC)

    • Sir, “RIGHT WING” ? You MUST be joking.

      Everyone; IF Mr. McPherson believes that the founders of OUR Constitution were Right Wing, THEN, Mr. McPherson is truly lost.

      The Founders of OUR REPUBLIC were and are THE LIBERALS for all time. TRUE liberals are MODERATES. Moderate in the spectrum between, COMPLETE Government Control on one end to ZERO Government, which is ANARCHY, on the other end.

      You Sir, either do not understand of what you speak, and I ask you to go do your homework. OR, you are purposely attempting to mislead everyone who reads this post, comments, and blog.

      Today, the STATISTS/PROGRESSIVES/COMMUNISTS/MARXISTS/STALINISTS, etc. renamed themselves as Liberals purposely to MISLEAD America.

      I ask you to use the actual DESCRIPTIVE terms of your beliefs.

      • “IF Mr. McPherson believes that the founders of OUR Constitution were Right Wing”

        I don’t, of course, and never said so. They weren’t, but you are. And you’re tacking your opinion of what is “good behavior” onto their words. Besides, as much trouble as you apparently have understanding my words, I’m not all that confident about any interpretation you may make regarding theirs.

        • More of Alexander Hamilton’s words in Federalist 78:
          “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”

          “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

          “Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be to-morrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”

          “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.”

          Hamilton Speaking in Federalist 78 to the quantity of men qualified to be a justice: “Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; …”

          “Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established “good behavior as the tenure of their judicial offices, …”

        • I edited my sentence this morning which mentioned “good behavior” so as not to mislead anyone, including you.

          The Supreme Court in her recent “healthcare opinion” states the question for this post:

          “The question is not whether that(ed. note- tax instead of mandate) is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. … As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.””

          Or as Alexander Hamilton in Federalist 78 stated the issue: “the power of the people is superior to both (the legislature and the judiciary) ; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

          Thomas Jefferson warned of Life Tenure for Judges which I posted below in the general comments section.

    • EVERYONE,
      Mr. McPherson is saying the words Alexander Hamilton wrote to encourage Americans to adopt the Constitution are RIGHT WING.

      COMPLETELY FALSE. RABBIT TRAIL. I did edit, the quotes in my post above, but they are quotes. The links are there for ALL of you to read for yourselves.

      • “COMPLETELY FALSE. RABBIT TRAIL.”

        Like ignoring the key question as to whether judicial interpretation is what the founders meant by “good behavior.” Surely you know better than that. Or perhaps not.

    • Mr. McPherson, again, insinuates, from the words of Alexander Hamilton, and me, that I am advocating a violent overthrow? I am NOT advocating the violent use of arms. I am advocating the peaceful education, and peaceful re-Institution of OUR nation’s SPIRIT, by reclaiming our LIBERTY, as espoused by OUR Declaration of Independence, our CONSTITUTION adopted in 1789, & the words of our Founders, at the ballot box.

    • Boy Mr. McPherson – for a person with not one, but two, no three PhDs, I would have expected a little better sourcing from you. After all, a man of your caliber could do much better (i.e., MLA cited sources, peer review), but oh no sir, not you. You offer to us idiotic ranting from a grossly slanted source. For what purpose, I can only assume is that you see us as either second class citizens, or intellectual paupers … or worse, both.

      Shame on you Mr. McPherson, shame on you.

      • Thanks, Augger, but it’s actually just one Ph.D., though it combined three subjects and therefore took longer than a traditional one. I provide sources as appropriate for the audience; for example, each of my books has more than 500 endnotes. I do find it interesting (if predictable) that you criticize the source rather than trying to dispute the facts about the Tea Partier’s own “idiotic ranting.”

        “I can only assume is that you see us as either second class citizens, or intellectual paupers”

        Definitely not the former, and I don’t know or care about the latter. But how about this: When I start seeing peer-reviewed academics arguments here, I’ll respond accordingly. In the meantime, I’ll consider it as I do my own blog–largely a conversation.

        • Albeit a disingenuous one, right? You see Mr. McPherson, people congregate here for a higher learning than one would generally get off hack-slant sites such as the one you provided. Again, you aim a little below the waterline in your assertions of this audience, thus my comment on posting peer reviewed articles as it relates to your education/profession. I know you truly believe we are close-minded followers, but I assure you (as Greg can attest) that we will actually listen to any reasonable argument, and intelligently muse with you any plausible source even if it is not cited. However when you proffer an article that starts with “Treason. It’s a word that conservatives don’t seem to understand. In their minds,” then it’s pretty clear that this article is not written for other purpose than to be argumentative, and you should not assume plurality from that point forward.

          Different ideas are the breeding grounds for broadening discussions, and understanding. Insertion of garbage does nothing to further that understanding.

          However, if you want to play tit-for-tat, well we can do that as well. Sometimes its a nice change of pace. 🙂

          • I “proferred” the link in question because of the video within it (the video containing the Tea Partier’s “idiotic ranting”) not because of the blogger’s opinion. Sorry if that was unclear.

  2. “The bottom line is this: I will be voting against John Roberts’ nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court’s historic role as a check on the majoritarian impulses of the executive branch and the legislative branch.”

    Senator Barack Obama

    • Green with envy? Highlight with your mouse the words you wish to change the color of, then click on the “button” in the tool bar that has a capital A that is underlined. Then pick the color you would like and click on it. Some colors are hard to see on the screen.

  3. I tried Purple, didn’t “pop” on my computer screen. Purple is historically the color of the Rulers.

    • Hah! No wonder it is my favorite color! Do you know in high school I actually had my car painted purple? (Well, actually, my dad obliged because he knows I’m half nuts.) I should hunt down a shot of that Chevette. (Yes, that’s what I drove….) Now I’m gettin the giigles…..

  4. Texas,

    The Left has claimed to know what the founders meant and intended better than they knew themselves. This is why you cannot argue with them: they deny objective fact, truth AND reality and insist it is the sane who are crazy.

    Good post, btw. Now tell the people that Jefferson predicted the Judicial branch would end this nation – as it has – and you will have completed all there is to know about what our founders thought of the Judiciary. 😉

  5. Jefferson was plainly alarmed by the possibility of judicial tyranny:

    You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves … . When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves. …. — Letter to Mr. Jarvis, Sept, 1820

    • I don’t consider the judges the ultimate anything. That wasn’t my point: my point was Jefferson saw them as the weakest link in the three branches. As for the ultimate judge of who can determine constitutionality: I would side with Jefferson on this, too. He said that – by his reading of the constitution – all three branches were equal in this regard.

      Ultimately, it is up to the people to guard their liberties, but a corrupt people will not do so – they will seek to us the government to exploit others on their own behalf.

  6. Jefferson wrote so much, he was the original “blogger”.
    I more I read Jefferson’s writings, the more I wonder how in the world Jefferson afforded the ink, paper, and postage.
    Not to mention the ability to form his thoughts cohesively before he actually wrote them…. he was a genius.

  7. This post supposes that statements by Roberts and Hamilton somehow conflict. They do not. Hamilton makes the point that the Constitution is the supreme law of the land and that it is the judiciary’s duty to interpret and apply it–and strike down statutes that conflict with it. He makes a strong case for judicial review.

    Roberts says nothing conflicting with that. Rather he accepts as given that courts review the constitutionality of statutes and simply repeats a well-established principle of statutory construction, i.e., that courts will endeavor to interpret statutes whenever possible so their meanings are consistent with, rather than contrary to, the Constitution. That is a perfectly sound–and conservative–principle. Underlying it is the broader principle of judicial restraint: If a statute can reasonably be interpreted in more than one way, the courts should presume the legislature intended the meaning that is consistent with the Constitution, and they should not unnecessarily choose the “gotcha” interpretation and strike down the legislature’s act.

    • So Doug,
      You believe: IF the legislation is written as a mandate, argued as a mandate, promoted and sold to our Nation as a mandate; THEN, all of that had no import to the intent and purposes of the legislation?

  8. texas95,

    Now you’re arguing about the specific case whether this law could reasonably be interpreted as an exercise of the federal government’s taxing power. That’s a different question than you posed in your post, asking whether the statements of Roberts and Hamilton are contradictory. They plainly are not; they were talking about different things.

    Sorting out what is a tax within the meaning of the Constitution is another topic. Perhaps you’ll post about it sometime. While I have not researched the subject, and I suspect neither have you, I’ve read enough to know it’s not a simple one.

    • No Doug. At this point, I am not arguing about the federal govt. taxing power. “We” haven’t gotten to the taxing authority, yet.

      I will ask you again if you believe:

      IF (any piece of) legislation is written as “a mandate”, described as “a mandate” during consideration on the floors of Congress, promoted as a mandate directly to the voters and the media, and argued as “a mandate”, NOT a tax, in writing and ORAL argument before the Justices of the Supreme Court;
      THEN, all of that had no import, or meaning, to the intent and purposes of the word “mandate” in the law/legislation?

      • Oh Doug,

        Allow me to add, that at every one of those steps in my IF hypo, it was always claimed by the SUPPORTERS & SPONSORS, of the BILL, “THIS IS NOT A TAX!.

  9. Seems to me that, IF Roberts were doing as Doug suggests, he would have HAD to have found this bill unconstitutional – tax or not. He said it fails as a mandate, so then it must be a tax. Well, under the constitution, a bill STARTING in the Senate cannot contain a tax, so the bill fails again.

    No rational, HONEST person can look at this ruling next tot he constitution and find that Roberts did anything but undermine the constitution. The only thing left to argue over is his motivation.

  10. texas95,

    You’re plainly itching to discuss whether the ACA can reasonably be interpreted to enact a tax authorized under the Constitution’s taxing power. I’m content, for now, simply to observe that the perceived conflict you posited in the original post is no conflict at all. Roberts and Hamilton spoke of different things. With respect to whether the ACA is a proper exercise of the taxing power, I’d rather study that a bit, rather than shoot from the lip (recognizing, of course, that I’ll mostly be satisfying my intellectual curiosity, since the issue has already been decided by the Supreme Court).

    black3actual,

    In supposing that Roberts and the other justices would overlook something as obvious as whether the bill originated in the Senate, you underestimate them, the Congress, and all the lawyers arguing the case. Well aware of this constitutional requirement and evidently anticipating the need to rely on the taxing power, the Senate took up a House revenue bill and adopted it as the vehicle for the ACA.

    • Sorry, I’m still not “ready” to discuss the “tax” aspect of this case either.
      However: If the “mandate” were a TAX, then the Supreme Court would not have been able to hear the case yet without violating the “anti-injunction act” as the so-called tax has not gone into effect yet. (However Mr. Roberts wrote for purposes of the Anti-Injunction Act, the “tax” was a mandate.) So if the “mandate” were a “tax”, the Supreme Court violated the law, and well settled Constitutional law by hearing the case now, instead of when the so-called tax actually began to be assessed. So Mr. Roberts said, yes the penalty, which is not really a penalty, is mandate for purposes of the anti-injunction act, and a tax under “new recognition” of a “new” taxing power, never before recognized since 1789……

      Yes folks, Mr. Roberts does say all those things in his “short” opinion…. As Mark Levin, Esquire, stated, this is LAWLESSNESS.

      No where in the history of the UNITED STATES, do I know of, has the Federal Government EVER proposed the “tax” or “penalty” or “mandate” for the “INACTION” by a person. You SHALL do what the Government says you will do, or you will lose PROPERTY, or worse. (Folks, the IRS, can take your home after they kick you to the curb, among other things, if you do not pay their taxes.)

      In ALL other cases, your INACTION, saves you from paying the tax, penalty, fees, etc. “You” can choose to forego income, or inheritance, or business, or gifts, or cigarettes, or alcohol, or that new car, etc. and not pay the tax, or fees, or penalties.

      The only analogy I can come up with is in criminal law, I posit, this opinion would be like: after the accused has been charged with a crime: instead of being innocent until proven guilty beyond a reasonable doubt; the accused is guilty until the accused proves their innocence.

      It is almost impossible to prove a negative. ie. To prove something DID NOT happen.

  11. Sweet fancy Moses… listen to this nauseating, smirking spinmeister… be tries to bluff and bullsh*t his way past the point with a smile on his face. Then watch what happens after Wallace plays a audio of the Obama lawyer arguing that Obamacare was a tax in front of the Supreme Court. (at 3:08)

    Lew’s face was priceless. 🙂

    Hey pal… do you know why regular people hate lawyers? I guarantee half the people watching this video were so disgusted by your BS that they wanted to reach through the TV and choke you.

  12. kells,

    I’m generally familiar with commerce power jurisprudence and less so with tax power jurisprudence. Based on that and an understanding of the ACA drawn from descriptions in the media, I figured the law would pass muster in both respects. Having plenty of real work to do, I did not, though, read any of the briefs or otherwise research and analyze the issues decided by the Supreme Court. I suppose if I’m to hold up my end of conversations at cocktail parties these days, I better get to it.

    Thanks for the link. It brought a smile to my face. Everything old is new in at least one respect here, i.e., the Court (Roberts and the four dissenters) interpreted the commerce clause to encompass less than anyone has seen since the 1930s.

    • I have the link, but I haven’t gotten through it (surprising, since most of B.’s posts are longer……) The legalise is confusing and annoying. (I was a court reporter in a past life, so I can somewhat relate…..) Also, I find that with the wording, you are able to create loopholes (could be they’re already there. I think you know of what I speak.) What was I on about? Oh! I was going to give you the link. I should like your opinion, Doug (after a margarita, of course. 😉 ) http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf?tw_p=twt

  13. Reblogged this on The Rio Norte Line and commented:

    The Supreme Court, in the “Obamacare” decision stated, “elections have consequences”. Honesty. Surprising, really.

    In other words, the courts are going to allow Congress to do whatever it chooses. And if that means murdering US Citizens at the President’s discretion, or creating surveillance files on every US citizen, then so be it. After all, the Constitution is a “living breathing document” and the founders could never have dreamed of the mobile phone and email.

    There is one little problem here, Communication and privacy are the same. Doesn’t matter if the communication occurs in person at “the speed of sound” or electronically at “the speed of light” via video chat. The simple sentence of the 4th amendment is, in fact, a simple procedure to follow.

    Some “here” have been explaining the Federal Governments exercise of power is Constitutional UNTIL a court of law states the law is Unconstitutional = illegal.
    No, illegal action is illegal action, regardless of whether those who are acting in league admit their actions are illegal or not.
    The Courts have been the “vehicle” for the federal Government’s expansion beyond the grant of limited powers contained in our Constitution.
    We yell, and scream, from the hilltops, at our elected officials,
    “THIS IS ILLEGAL, CHANGE IT, OR WE WILL VOTE YOU OUT !” all the time. all the time. all the time.

    We inform our friends and neighbors to do the same.

    The courts are not going to enforce the Constitution and protect “the People”… The Courts simply are not going to do their duty and uphold their oath of office. The lawyers have been indoctrinated in the progressive invention of “living, breathing, document”. The Courts are not going to give up their “stolen power” over “the people”.
    The last thing “we” need to be saying is, “well, its legal until a Court finds it illegal. That is what the Germans did during the fascist’ takeover.
    Illegal is illegal. To argue “the people” should sit and wait for the courts to “fix things” is akin to siting down in the desert without water and saying , “I’m thirsty, so we will wait for it to rain…”

    To advise everyone to “calm down” this is legal until the Courts say it is illegal, is aiding and abetting the Government’s war on “the people”.

    Here is the Duty of the Courts as explained by our founders.

Talk Amongst Yourselves:

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.