Issue 28.15
In the last couple of weeks, two decisions from the US Supreme Court have indicated that good intentions are sufficient to pass laws infringing on and severely damaging the liberty and balance of power created by the US Constitution. In one case the court upheld the dubious right of the government to mandate that you purchase health insurance, even if you never use it. The penalty is considered a tax even though the writers of the bill expressly stated that it is not a tax. In the other, the court decided that it could take a decision expressly held by the states and the people and make a law that all states must abide by. It then becomes a federal decision thus subverting the 10th Amendment in the Bill of Rights.
The Justices themselves (as is often the case) disagreed sharply about these decisions, but these cases are notable in that they were decided along party lines and in spite of strong support for traditional constitutional values by those who dissented. There are four justices that have been appointed by Democrat Presidents and five appointed by Republicans. However, in each of these cases one of the Republican appointees crossed over and voted with the four Democrat appointees. Below is the tally. Those with a @ after their name dissented on the Obamacare decision and those with a * dissented on the gay marriage decision.
Appointed by Reagan – Scalia*@, Kennedy@
Appointed by GHW Bush – Thomas*@
Appointed by Clinton – Ginsburg, Breyer
Appointed by GW Bush – Roberts*, Alito*@
Appointed by Obama – Sotomayor, Kagan
Statements by dissenting justices are incredibly important. In the Obamacare case, those on the “losing” side made these statements. Whether federal spending legislation crosses the line from enticement to coercion is often difficult to determine, and courts should not conclude that legislation is unconstitutional on this ground unless the coercive nature of an offer is unmistakably clear. In this case, however, there can be no doubt.”- and
“The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn”
In the Gay Marriage debate, the dissent stated, “…this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” And “The fundamental right to marry does not include a right to make a State change its definition of marriage.”
It is easy to blame the judges or the presidents that appointed them. However, Supreme Court justices are confirmed to the position by the “advice and consent” of the Senate. If they had been doing their job, those who view the court as a way to make law instead of interpret it should never have been approved. I hold them responsible. I hold the voters responsible for electing Senators that will not stand up for the Constitution and Presidents that infect the court with their own agendas. We are on a slippery slope that will likely take us where we do not want to be.
Lynn West is a thinker, a teacher and a patriot. You can reach him through email at forgingthefuture2021@gmail.com or through this newspaper. Liberty is a state of being which must be continually created. These articles can help all of us discover the ways we can contribute to that outcome.