The Pete Morin Editorial Review 2012-8
Chief Justice John Roberts--Liberal lion of the judiciary
What can be said about Thursday's ruling concerning Obamacare that hasn't been said by thousands, or even millions of postings in the past few days. Not much.
First, let's dispense with the obvious: the individual mandate is not constitutional under the commerce clause in Article 1, Section 8 of the Constitution. How wonderful! Are we now protected from future liberal attempts to alter the meaning of the clause to fit a liberal agenda? Hardly. There'll be many more attempts to change this section in the years to come.
Just what did the American people get from this ruling. Those of a liberal persuasion are now enamored of the fine, lawful jurisprudence of Chief Justice John Roberts in crafting such a great decision upholding the constitutionality of Obamacare. Those of the conservative persuasion are left with stomachs churning as from too much beer, nachos and extremely hot peppers.
Evidently, Chief Justice Roberts( who will now be referred to as 'Old Slip & Fall'), felt a need to placate those, would be, detractors on the left who would excoriate him for being a tool of the far right. OSF wilted under the pressure of a socialist President hell bent on 'transforming America.' Those are Obama's words, not mine. Apparently, OSF felt that America does, indeed, need transforming and what better way than to pull from very thin air a new meaning of the word 'penalty.' You see, when Congress passed Obamacare there was not even a mention of the word 'TAX' in said document. In fact, the liberals demorats(misspelling intentional) conspicuously left that word absent from the law. If they had used this word their constituents would disapprove and could send them packing in the next election. So they used the word penalty--and were sent packing anyway!
But OSF just couldn't seem to concur with the other four justices in scuttling the entire law. He remembered President Socialist demeaning him at the SOTU 2010 speech for his finding in the Citizens United case. Belittled he was, and didn't much care for feeling the heat from our esteemed, transformative, Commander-in-Chief. No, OSF wasn't going to put himself in such a prostrate position again. Placate the socialist he meant to do, and placate he did.
A quick reading of the Constitution produces not one single reference to calling a penalty a tax. It calls a tax, a tax. Article 1, Section 8 reads; " The Congress shall have the Power to lay and collect taxes....". Since this section has been superseded by the 16th amendment, we go there for a further reading; " The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived....". No where is the word 'penalty' mentioned within the document. But OSF knows better. He knows what the people who wrote Obamacare really meant. They meant TAX, even though they vehemently denied any such word, or connotation in their crafting of the bill.
Doesn't matter. We now have new Supreme Court precedent as to what penalty actually means, and all thanks to our Chief Justice, OSF.
Great going Johnny! You sure did straddle that political fence. We can't wait for your next judgment when you change the word 'Constitution' to mean toilet paper.
Sunday, July 1, 2012
Sunday, June 24, 2012
Pete Morin Editorial Review 2012-7
The following was published in The American Thinker on June 15, 2012
The following was published in The American Thinker on June 15, 2012
Why the
Supreme Court may find ObamaCare constitutional
I a
very short time, perhaps a matter of days or weeks, the Supreme Court of the
United States will issue a finding on the constitutionality of the Patient
Protection Care and Affordability Act known as ObamaCare.
Both
sides in the argument feel they have an excellent case for having the law
either struck down, or approved by the Court. There are some considerations
that I have not heard discussed, however, that could have a significant impact
on the outcome.
At
issue is the central question of mandating individuals to purchase health
insurance, or pay a fine for not complying. The central belief in opposition to
the law rested in the notion that there is no precedent for requiring
individuals to purchase a product in the marketplace. Indeed, if one looks at
it from that perspective, the soundness of such an argument appears genuine.
The Supreme Court, however, may not look at precedent from a view of compulsion
to act, but from a position that unlimited power with regards to the Commerce
Clause has already been given to the legislative branch of the Federal
Government. Some history and a meaning of Constitutional text is in order.
At
least two schools of thought have been at odds with each other over the issue
of "Originalism." Progressive thought believes, that having been
written over two hundred years ago, the Constitution, as written, could not
possibly answer difficult questions with regard to legislative authority in a
modern era. The Conservative belief holds the view that any change in the
meaning of the Constitution by what they consider to be 'activist' judges destroys the very essence
of the document. In an excellent work on the value of Originalism,
constitutional scholar Randy Barnett succinctly defines the Constitution's
original meaning as "(o)riginalism .... entailed by a commitment to a
written constitution, which is a vital means of subjecting lawmakers to limits
on their lawmaking powers."(1) In other words the meaning of the words the
framers used in defining the Constitution should not be confused with the
intentions of the framers with regard to lawmaking. Any change in the meaning
of the words in the document would destroy the original document. If we look a
little closer at the Court case of Wickard v Filburn(2) decided by the Court in
1942, we see how the idea could be presented that the court effectively changed
the meaning of the Commerce Clause to give the Legislative branch the power to
redefine Interstate Commercial activity.
The
original wording of the delegated powers given to the legislative branch reads
as follows: Article 1, Section 8, "To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes." An
understood meaning of the word 'regulate' in the eighteenth century was to
"make regular." This did not apply to restrictions on Commerce, but
to promote the smooth flow of goods between the States. To apply an
understanding of restricting the economic flow of goods would be to discern an
intent by the framers which is not applicable to the original meaning. The
decision in Wickard applied such an intent.
Essentially,
the Wickard decision restricted an individual's ability to engage in Commercial
activity even though Filburn had no intention to engage in such activity. In my
view, this decision could be an implication that the Court recognized
Congress's authority over all Interstate commercial activity. Restrictions to
Commercial activity could go hand in hand with compulsion to give effectiveness
to Congressional authority. Therefore, the individual mandate could be viewed
as constitutional.
How
will the judges rule? Ideological lines may hold for eight of the judges, but
the usual swing vote will come from Associate Justice Anthony Kennedy. His vote
could decide whether, or not, individuals will be compelled by the government
to purchase products in a marketplace. Justice Kennedy did bring up the issue
of a 'limiting principle', that is, if the government can force an individual
to purchase health insurance then what are the limits to government compulsion
to purchase any product. This is a fair question, and could swing the vote to
the plaintiffs in the case. The judges could, however, look to Wickard as to
sustain the power of the legislature to require Commerce by the individual.
In any
event, the meaning of the words in the Commerce Clause have been changed thus
leaving the original document, in my view, as a relic of history. Shame on the
Court, and us, for letting it be so.
(1)
Randy E. Barnett, "Restoring the Lost Constitution, Princeton University
Press, 2004, 88
(2)
Wickard v Filburn, 317 U.S. (1942)
Monday, April 9, 2012
The Pete Morin Editorial Review 2012-6
Insignificance & Inspiration
It is a lovely evening in the South and as I venture outside to enjoy the cool air and a clear sky full of bright stars that give me a peek into a distant past that only a time traveller could know, I get inspired to think of our small selves and how little we know about eternity.
We travel a time machine that warps the truth about existence. We think of ourselves as immeasurable to the importance of our awareness. The center of this vast universe exists only within our limited ability to understand what we glean from our senses. There is more than what we see, but we cannot see it. There's more to what we know, but we cannot know it. I am an insignificant pebble on a beach of a million billion pebbles, but I think of myself as all important.
I will live a short number of years compared to what the rocks and the sky and the sea will know. I'll believe in many things and accept little as definite truth. A pity, to be sure, but I must push on to believe that my time spent is spent well. We have too few chances to leave our inner selves open to inspection for our fellow men. Their chance to view our souls is only this brief moment and then the stars move on to cast their light on other worlds and other life, life that we cannot know.
As I return to my home and leave the world, and the stars, and the worlds that exist beyond, I feel the beauty of being inspired by their quiet presence that has fed my soul. Be open to wonder, to know what you cannot know, to see what cannot be seen, to understand how quickly the days go by.
Live today, and tomorrow, inspired.
Wednesday, April 4, 2012
The Pete Morin Editorial Review 2012-5
Unprecedented, or untruthful?
President Obama is hitting the airwaves letting it be known that he will not be happy if the Supreme Court overturns his healthcare law. Just recently he made the following statement to the press: " Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
You have to wonder who he's talking to and if he even understands what he's saying. This coming, mind you, from a former professor of Constitutional Law at the University of Chicago.
Let's dissect the statement, shall we?
First, is the word 'unprecedented.' As Prof. Obama should know there are several examples of precedent regarding the Court striking down legislation not in line with the Constitution. The most famous is the 1803 decision by the Court, articulated by the great Chief Justice of the Supreme Court, John Marshall, known as Marbury v Madison. This case set the standard which allowed the Court to implement judicial review. Any first year law student is familiar with this case and would site it as precedent for overturning the healthcare law.
A second case would be Schecther v US in 1935 which rendered FDR's National Industrial Recovery Act unconstitutional. This case would have been well known to Prof. Obama, especially since he likes to compare himself in importance to FDR with respect to effecting, or transforming America to a more enlightened State.
Next we look to the "strong majority" he feels existed when the law was passed. The word strong would indicate something more than just barely enough votes, or what a person would consider a 'slim majority.' The bill passed the Senate by a vote of 60-39 with NO Republican votes. Now this could be considered 'strong' by count alone, but the fact that there were no Republicans voting for the bill begs the question as to it's true strength. The House of Representatives passed the law by a vote of 219-212. Once again, NO Republicans voted for the bill and in any event this certainly cannot be considered a 'strong majority.'
The last point is his reference is to a democratically elected Congress. Exactly what does this have to do with the Court's ability to review legislation produced by Congress? As stated previously, the Court has struck down legislation passed by a 'democratically elected Congress' and will continue to do so if necessary. The entire statement appears to be grandstanding to those not familiar with judicial review. Some commentators have referred to it as an attempt to bully the Court in not overturning the law, but I believe it involves more.
It is unthinkable that President Obama would not be aware of Supreme Court precedent in determining a law's constitutionality. The only logical explanation is that he knew what he said was not accurate. Are we looking at an individual who purposefully misstated the facts? Is President Obama playing to his base constituency in the hope that political pressure can be applied to the Supreme Court? The Court doesn't operate in a vacuum and those Justices he nominated, and we're appointed, to the Court could be especially susceptible to outside pressure.
When all is said and done I can only respond to the President's statement this way: Liar, liar, pants on fire. Intentionally misstating facts is, most decidedly, un-presidential. Start acting like an adult, Mr. President, and be a leader. Not a pseudo Constitutional Law professor who sounds ridiculous.
President Obama is hitting the airwaves letting it be known that he will not be happy if the Supreme Court overturns his healthcare law. Just recently he made the following statement to the press: " Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
You have to wonder who he's talking to and if he even understands what he's saying. This coming, mind you, from a former professor of Constitutional Law at the University of Chicago.
Let's dissect the statement, shall we?
First, is the word 'unprecedented.' As Prof. Obama should know there are several examples of precedent regarding the Court striking down legislation not in line with the Constitution. The most famous is the 1803 decision by the Court, articulated by the great Chief Justice of the Supreme Court, John Marshall, known as Marbury v Madison. This case set the standard which allowed the Court to implement judicial review. Any first year law student is familiar with this case and would site it as precedent for overturning the healthcare law.
A second case would be Schecther v US in 1935 which rendered FDR's National Industrial Recovery Act unconstitutional. This case would have been well known to Prof. Obama, especially since he likes to compare himself in importance to FDR with respect to effecting, or transforming America to a more enlightened State.
Next we look to the "strong majority" he feels existed when the law was passed. The word strong would indicate something more than just barely enough votes, or what a person would consider a 'slim majority.' The bill passed the Senate by a vote of 60-39 with NO Republican votes. Now this could be considered 'strong' by count alone, but the fact that there were no Republicans voting for the bill begs the question as to it's true strength. The House of Representatives passed the law by a vote of 219-212. Once again, NO Republicans voted for the bill and in any event this certainly cannot be considered a 'strong majority.'
The last point is his reference is to a democratically elected Congress. Exactly what does this have to do with the Court's ability to review legislation produced by Congress? As stated previously, the Court has struck down legislation passed by a 'democratically elected Congress' and will continue to do so if necessary. The entire statement appears to be grandstanding to those not familiar with judicial review. Some commentators have referred to it as an attempt to bully the Court in not overturning the law, but I believe it involves more.
It is unthinkable that President Obama would not be aware of Supreme Court precedent in determining a law's constitutionality. The only logical explanation is that he knew what he said was not accurate. Are we looking at an individual who purposefully misstated the facts? Is President Obama playing to his base constituency in the hope that political pressure can be applied to the Supreme Court? The Court doesn't operate in a vacuum and those Justices he nominated, and we're appointed, to the Court could be especially susceptible to outside pressure.
When all is said and done I can only respond to the President's statement this way: Liar, liar, pants on fire. Intentionally misstating facts is, most decidedly, un-presidential. Start acting like an adult, Mr. President, and be a leader. Not a pseudo Constitutional Law professor who sounds ridiculous.
Tuesday, March 27, 2012
The Pete Morin Editorial Review 2012-4
ObamaCare & judicial review
The United States Supreme Court began hearings yesterday on the constitutionality of the Patient Protection and Affordability Care act, a.k.a. ObamaCare.
The first day consisted of listening to lawyers(now there's a dreadful thought) drone on about the 1867 anti-injunction law concerning taxing power etc., etc. I don't get a lot of it, but the basic argument is you can't hear a plaintiff's case if the law hasn't affected them yet. Since no one would be fined by not having health insurance until at least 2014, then the law can't be challenged until that time. Apparently, the Justices, including Kagan & Breyer, both considered liberal in their views, are having none of it and are willing to have the case proceed.
The real meat of the argument comes today when the mandate to purchase insurance is presented before the court. The Government will offer the opinion that a mandate is constitutional under the right of the legislature to regulate interstate commerce. The government claims that by not purchasing health insurance a burden would be placed on all other individuals in society to pay for individuals who do not have insurance. Costs would be borne by those who have insurance spread across the entire country, thereby affecting commerce. The plaintiffs(those suing to negate the law) argue that the legislature cannot compel individuals to take part in commerce. In other words, the government is compelling individuals to purchase a product whether they want to or not.
If the government wins, then ObamaCare remains intact. If the plaintiffs prevail, in whole, or in part, then ObamaCare will either be re-written or scrapped.
The more interesting point to be considered is what happens to the ability of the Supreme Court to enact judicial review should ObamaCare prevail.
Judicial review was first employed in the Supreme Court case of Marbury v Madison in 1803. What made this case revolutionary was the fact that the Constitution does not mention judicial review as a legitimate function of the Supreme Court. Chief Justice John Marshall was able to use this tactic through some skillful wording and political gamesmanship. After all, if the Court says something can be reviewed can Congress overrule the Court? It might be possible, but Congress has never attempted to do so.
In any event, if the Court upholds ObamaCare, and individuals will be forced to take part in commerce, then what is to stop the Congress from forcing people to purchase a certain vehicle, or purchase a certain kind of house, or, to purchase ANYTHING that Congress deems necessary that applies to a proper regulation of commerce? The logical extension of this thinking is that contesting these laws would no longer be possible. In essence, the United States Supreme Court, with respect to any question regarding commerce, would be out of a job. Judicial review, for all intents and purposes, would be dead.
Interesting question, n'est pas?
The answer as to whether we become wards of the state will be answered in June, when the Court renders its decision. Our basic freedoms as citizens will either stand or fall. Good luck, America.
The United States Supreme Court began hearings yesterday on the constitutionality of the Patient Protection and Affordability Care act, a.k.a. ObamaCare.
The first day consisted of listening to lawyers(now there's a dreadful thought) drone on about the 1867 anti-injunction law concerning taxing power etc., etc. I don't get a lot of it, but the basic argument is you can't hear a plaintiff's case if the law hasn't affected them yet. Since no one would be fined by not having health insurance until at least 2014, then the law can't be challenged until that time. Apparently, the Justices, including Kagan & Breyer, both considered liberal in their views, are having none of it and are willing to have the case proceed.
The real meat of the argument comes today when the mandate to purchase insurance is presented before the court. The Government will offer the opinion that a mandate is constitutional under the right of the legislature to regulate interstate commerce. The government claims that by not purchasing health insurance a burden would be placed on all other individuals in society to pay for individuals who do not have insurance. Costs would be borne by those who have insurance spread across the entire country, thereby affecting commerce. The plaintiffs(those suing to negate the law) argue that the legislature cannot compel individuals to take part in commerce. In other words, the government is compelling individuals to purchase a product whether they want to or not.
If the government wins, then ObamaCare remains intact. If the plaintiffs prevail, in whole, or in part, then ObamaCare will either be re-written or scrapped.
The more interesting point to be considered is what happens to the ability of the Supreme Court to enact judicial review should ObamaCare prevail.
Judicial review was first employed in the Supreme Court case of Marbury v Madison in 1803. What made this case revolutionary was the fact that the Constitution does not mention judicial review as a legitimate function of the Supreme Court. Chief Justice John Marshall was able to use this tactic through some skillful wording and political gamesmanship. After all, if the Court says something can be reviewed can Congress overrule the Court? It might be possible, but Congress has never attempted to do so.
In any event, if the Court upholds ObamaCare, and individuals will be forced to take part in commerce, then what is to stop the Congress from forcing people to purchase a certain vehicle, or purchase a certain kind of house, or, to purchase ANYTHING that Congress deems necessary that applies to a proper regulation of commerce? The logical extension of this thinking is that contesting these laws would no longer be possible. In essence, the United States Supreme Court, with respect to any question regarding commerce, would be out of a job. Judicial review, for all intents and purposes, would be dead.
Interesting question, n'est pas?
The answer as to whether we become wards of the state will be answered in June, when the Court renders its decision. Our basic freedoms as citizens will either stand or fall. Good luck, America.
Wednesday, February 29, 2012
The Pete Morin EDitorial Review 2012-3
A Nation worth saving
Tonight on the Mark Levin radio talk show, Mark will ask his callers to respond to whether or not the United States of America can be returned to a Constitutional Republic; in essence, can it be saved from Progressives, Liberalism and ultimately, Socialism.
I've thought long and hard about this question and have written many articles extolling the virtues of a free economy in a Constitutional Republic along with a genuine reading of the Constitution as the Founders intended. This last statement carries with it the usual opprobrium from leftists that the Founders could not have foreseen the problems facing America in the 21st century, and therefore, a more relaxed reading of the document offers us the best hope to contend with such problems.
OF COURSE THEY COULDN'T FORESEE SUCH PROBLEMS. ANY SUCH ATTEMPT WOULD HAVE BEEN LAUGHED OFF AS NONSENSICAL!
The Founders didn't write a document especially for their time, but a document they intended to explain what, and how, a government should interact with the citizenry. It was a compact, if you will, between the power of the State and the people who would invest it with such a power. It was NEVER intended to answer any pressing social questions, either then, or in the future. It's content and genius was born of the ideal of Federalism; i.e. most governing would take place at the State, or local, level. The more serious points of debt repayment to the States and making commerce 'regular' would be the extreme points to be argued. It even left slavery to be settled by future generations with the importing of slaves being the only point garnering mutual agreement.
But back to the original statement at the beginning of the post.
I believe we have reached a tipping point, if you will, where a majority of Americans re lie on government handouts for their daily sustenance. I'm there myself, having received my first social security check this month. I have to admit that it felt good, but I also know where it comes from; not from some beneficent government concerned with my welfare, but from hard working people contributing from their well earned paychecks. As a matter of jocularity, I remind my nieces and nephews to work hard since I expect the payments to continue. It is no laughing matter, however, that future generations will be expected to pay all bills remitted to them.
And so it is that we are now a handout nation, a majority looking for easy street through a future of toil and sweat from those yet unborn. Liberals have their new Constitution today and will remake it again tomorrow to address a new set of social questions. The roles of the dependents will increase, and freedom , self reliance and limited government will wilt and die.
"What kind of government do we have Mr. Franklin." His answer should have been," a Republic, but I doubt you'll keep it."
Tonight on the Mark Levin radio talk show, Mark will ask his callers to respond to whether or not the United States of America can be returned to a Constitutional Republic; in essence, can it be saved from Progressives, Liberalism and ultimately, Socialism.
I've thought long and hard about this question and have written many articles extolling the virtues of a free economy in a Constitutional Republic along with a genuine reading of the Constitution as the Founders intended. This last statement carries with it the usual opprobrium from leftists that the Founders could not have foreseen the problems facing America in the 21st century, and therefore, a more relaxed reading of the document offers us the best hope to contend with such problems.
OF COURSE THEY COULDN'T FORESEE SUCH PROBLEMS. ANY SUCH ATTEMPT WOULD HAVE BEEN LAUGHED OFF AS NONSENSICAL!
The Founders didn't write a document especially for their time, but a document they intended to explain what, and how, a government should interact with the citizenry. It was a compact, if you will, between the power of the State and the people who would invest it with such a power. It was NEVER intended to answer any pressing social questions, either then, or in the future. It's content and genius was born of the ideal of Federalism; i.e. most governing would take place at the State, or local, level. The more serious points of debt repayment to the States and making commerce 'regular' would be the extreme points to be argued. It even left slavery to be settled by future generations with the importing of slaves being the only point garnering mutual agreement.
But back to the original statement at the beginning of the post.
I believe we have reached a tipping point, if you will, where a majority of Americans re lie on government handouts for their daily sustenance. I'm there myself, having received my first social security check this month. I have to admit that it felt good, but I also know where it comes from; not from some beneficent government concerned with my welfare, but from hard working people contributing from their well earned paychecks. As a matter of jocularity, I remind my nieces and nephews to work hard since I expect the payments to continue. It is no laughing matter, however, that future generations will be expected to pay all bills remitted to them.
And so it is that we are now a handout nation, a majority looking for easy street through a future of toil and sweat from those yet unborn. Liberals have their new Constitution today and will remake it again tomorrow to address a new set of social questions. The roles of the dependents will increase, and freedom , self reliance and limited government will wilt and die.
"What kind of government do we have Mr. Franklin." His answer should have been," a Republic, but I doubt you'll keep it."
Sunday, February 5, 2012
The Pete Morin Editorial Review 2012-2
A Ward of the State
In approximately three weeks something new, and different, will happen to me; I officially become a ward of the state! At the end of February I will receive my first social security check. When I started paying into the 'trust fund' almost fifty years ago the thought of actually receiving this money never really occurred to me. Now it's about to happen and I couldn't be more proud to proclaim that I am now affiliated with the trough feeders that support the Democrat Party.
Let me be very clear about something--you hard working productive members of society better keep your noses to the grindstone so I can maintain the lifestyle that I'm accustomed to. I won't brook any more talk of downsizing government, or making cuts in retirement programs. No sir, no more ridiculous nonsense about cutting social security, or Medicare. I won't listen to any 'conservative' who champions the idea of fiscal restraint. I want my money and I want it now!!
Thank God for the progressives of the Democratic party. Thank God for all the liberals who stand shoulder to shoulder with those who are concerned only for welfare of our fellow Americans. Those mean, dastardly Republicans lead by their out of touch conservative talk show radio hosts and their lackeys in Congress should be ashamed of what they're trying to do to the poor and dependent people struggling to get by in this terrible capitalist environment. Long live the Democrat Party! Long live Progressives who strengthened our future by providing us with security!
Ain't it great to be a 'Ward of the State.'
In approximately three weeks something new, and different, will happen to me; I officially become a ward of the state! At the end of February I will receive my first social security check. When I started paying into the 'trust fund' almost fifty years ago the thought of actually receiving this money never really occurred to me. Now it's about to happen and I couldn't be more proud to proclaim that I am now affiliated with the trough feeders that support the Democrat Party.
Let me be very clear about something--you hard working productive members of society better keep your noses to the grindstone so I can maintain the lifestyle that I'm accustomed to. I won't brook any more talk of downsizing government, or making cuts in retirement programs. No sir, no more ridiculous nonsense about cutting social security, or Medicare. I won't listen to any 'conservative' who champions the idea of fiscal restraint. I want my money and I want it now!!
Thank God for the progressives of the Democratic party. Thank God for all the liberals who stand shoulder to shoulder with those who are concerned only for welfare of our fellow Americans. Those mean, dastardly Republicans lead by their out of touch conservative talk show radio hosts and their lackeys in Congress should be ashamed of what they're trying to do to the poor and dependent people struggling to get by in this terrible capitalist environment. Long live the Democrat Party! Long live Progressives who strengthened our future by providing us with security!
Ain't it great to be a 'Ward of the State.'
Subscribe to:
Posts (Atom)