John wrote yesterday in the New York Post about the “unerring liberal inability to accept the substance and merit of opposing arguments,” a phenomenon that has produced preemptive attacks on the integrity of the Supreme Court after the ObamaCare oral argument.
The distinguished law professor, Ronald Dworkin, is the latest liberal to libel the Court. At the New York Review of Books blog, he asserts the legal issues in ObamaCare “are not really controversial;” that “basic constitutional principle” and Court precedents “obviously” support it; that conservative justices are ignoring “text, precedent and principle;” and that the distinction between regulating commerce and making everyone buy a product is “pointless.” Perhaps he missed the point in the colloquy between Justice Breyer and Michael Carvin; or skipped the Eleventh Circuit’s 207-page opinion (jointly written by Democratic and Republican appointees); or perhaps he lacks the ability to accept the substance and merit of opposing arguments.
His post is not even internally consistent. He asserts conservative justices are relying on “the strict and arbitrary language of an antique Constitution,” which seems to cut against his argument that they are preparing to rule “in spite of text.” His real problem is the text itself, not justices who think they must stay within it. Stripped of his tendentious adjectives (“strict,” “arbitrary,” “antique”), Prof. Dworkin is criticizing judicial reliance on the “language of [the] Constitution.”
That reliance was inherent in Justice Kennedy’s first question to the Solicitor General: “Can you create commerce in order to regulate it?” The answer is not obvious, nor non-controversial, nor addressed by any prior Court precedent.
Which suggests that the place to start the analysis is the text of the constitutional provision. In A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Princeton University Press: 1998), Justice Scalia writes:
If you … read a brief filed in a constitutional law case, you will rarely find the discussion addressed to the text of the constitutional provision that is at issue, or to the question of what was the originally understood or even the originally intended meaning of that text. The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding.
In the case of Obamacare, the prior precedents do not “obviously” support the law, which accounts for the fact that the plaintiffs are not asking the Court to overrule any prior case. The argument instead is that the Commerce Clause, by its terms, gives Congress the power to regulate commerce, but not to force every individual into it — to regulate those engaged in commerce, not to require every person to buy whatever Congress wants them to buy. Prior case law allows Congress to regulate farmers engaged in producing wheat, not to require every person in the country to buy Wheaties.
The Court can decide this case either way precisely because the issue has not previously been addressed. But the text and original understanding of the Commerce Clause suggest the answer to Justice Kennedy’s question is “no,” and Dworkin’s citation of “basic constitutional principle” (he neither cites nor discusses any actual Court precedents) suggest he is appealing to some uber-concept outside the text of the law.
Perhaps he shares the view that Senator Barack Obama expressed at the time of Justice Roberts’ confirmation hearing: that in important cases justices should rely not on the language of the law, but on what is in their wise hearts. We can see the problem with this approach in Prof. Dworkin’s post, which impugns the integrity of the justices who might disagree with his heartfelt position. Rather than demonstrate that the problem is the Court (it is not), he has provided an extraordinary example of the trait John noted.
Am I missing something here? If conservatives cherish the wisdom and precise meaning of the Constitution in its every word, if for a judge to interpret these words within some relativistic or temporal manner is "judicial activism," and if Justice Scalia is one of the champions and heros of strict construction, than how the hell can he write: n n"The starting point of the analysis will be Supreme Court cases, and the new issue will presumptively be decided according to the logic that those cases expressed, with no regard for how far that logic, thus extended, has distanced us from the original text and understanding." n nOr was that quote taken out of context.
He was writing in criticism of that approach, not support of it.
Logically, given what I've read about Scalia, I would think you're right. But this article certainly didn't make that clear.
The paragraph begins "If you … read a brief filed in a constitutional law case…", which, he next says, rarely addresses the text of the Constitutional provision involved but, rather, discusses Supreme Court precedents. "The starting point of the analysis" which follow is, thus, based on its predicate context, stated with reference to briefs filed in constitution law cases. That analytical starting point is, too, the starting point of many, both on the bench and off, who do not subscribe to originalism or textualism as the principal interpretive principal of Constitutional law.
Okay, I'm still trying to wrap my head around this. Wasn't the Government's argument that everyone does in fact engage in commerce since at some point each will need healthcare services, that the operative concept of insurance is participation before the fact, and that not participating at all effectively passes the cost on to others? I know this is not Law 101, but I'd appreciate others' thoughts on the subject. TIA
The human body is not a bushel of corn or a box of screw drivers being traded and sold. It is not part of any reasonable kind of 'commerce'. Unless you include prostitution.
I live in Vegas, so prostitution works for me.
n nSeriously, I see your point, but I think the operative concept of commerce is the act of using the services not the thing acted upon. n
There is an irrefutable fact here that most commentators have overlooked: Although-as many have argued- at some point in one's life, one would need medical care (this can be argued but let's accept it), it is NOT at all clear that one will need insurance for this. One can very simply pay for it. Hence, this argument that 'everyone will engage in healthcare insurance at some date" is false. nThe mandate in Obamacare assumes that everyone will, at some date, need insurance to deal with medical emergencies- hence , one can regulate it. This is patently false, as I just proved. nBecause of this distinction between health care- that most people need- snd healthcare insurance, I think that the court will invalidate the madate but find some other provisions of the act constitutional because health care is needed by everyone and can regulated. It is the insurance aspect that is clearly unconstitutional.
Excellent point!
Thanks for your comment ! It just shows how blinded people are because of their bias. Incidentally, I do believe that the court will act in the manner I describe, rejecting the mandate but finding some provisions ( adult children, pre-exisiting conditiosn) constitutional. The problem will be how to extricated oneself from this act without succumbing to the Eight Amendment (cruel and unusual punishment) as Judge Scalia eloquently demonstrated.
Goodness, the commerce clause was included in the constitution because, under the Articles of Cofnederation, the 13 colonies has erected their own mini – trade barriers. "Regulate," as used in our constitution, was used in the sense of keeping regular. There was never any discussion nor does anything support the notion that the the commerce clause granted Congress the power to regulate anything and everything involved in commerce. Otherwise, as the court finally addressed, there is no limit to what Congress can regulate. That obviously can not be the case, as our constitution was designed to limit the power of the federal government. nYet, in the FDR era, which was when the text and meaning of the U.S. constitution was abandoned, absurdity was invited. A farmer, Roscoe Filburn, was growing wheat for his own family's on-farm consumption. There was nothing "interstate" about what he was doing. However, the U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it. The court decided that regulating Filburn's own wheat production was within the power of the Congress. Goodness, he might otherwise have purchased wheat, and if he did, it MIGHT have had an effect on interstate commerce. nWe were once a free people who granted power to our government. We're no longer free, except to the extent our government says we are.
But even assuming everyone is already in the market from birth, government mandating in that market would set a dangerous precedent. Is everyone also not in the market for food, clothing, housing, education, transportation, etc.? n nThat Dworkin fails to see the validity of an opposing view suggests how deeply politicized the intellectual Left has become. Like a psychotic who loses touch with reality because he's only informed from internal impulse as the external world becomes nothing more than a blank canvas for projection.
"perhaps he lacks the ability to accept the substance and merit of opposing arguments" n nHe is a liberal, even worse, a liberal academic. So the quote above is obviously the reason for his seeming obtuseness.