View 731 Tuesday, July 03, 2012

Roberta has an appointment for an eye exam that includes dilation so I’ll have to drive her. This will be short.

The storm over Mr. Chief Justice Roberts decision continues. There seems to be a lot of misunderstanding, and much talk of “silver linings” and others denouncing those who see “silver linings.” I am not privy to Mr. Roberts’ thinking, but I think those looking for silver linings are mistaken: this was not Mr. Roberts being the conservative Chief Justice standing in the way of the political departments as they rush the nation toward the end of the Constitutional Republic as we know it; this is Mr. Roberts in a cry of despair proclaiming that conservatives can no longer rely on the Supreme Court to save the people from the consequences of their political decisions.

What Mr. Roberts has seen is that a law so badly framed that it has internal contradictions and which mandates colossal new taxes while handing over nearly 20% of the national economy to federal bureaucrats has passed the House and Senate and has been signed by a President who purports to be an expert on Constitutional Law by dint of having been a lecturer on the subject at the University of Chicago as well as the President of the Harvard Law Review; and despite the obvious defects of this law, four Justices were eager to approve it. The whole course of the United States turns on the survival of five men. If one of them goes, so does the Constitution.

The old model of Congress messing with the Constitution and the Court trying to save it no longer works. We have gone too far down the road to serfdom, and if we continue there will be no turning back. The Courts cannot perpetually resist the political departments. If the Constitutionalists among us cannot regain control of the political branches, what we know as the Constitution of 1789 will be gone, irretrievably gone; it takes only one more liberal Justice.

Whereupon Mr. Roberts has thrown this question to the people. Is this the way you want to go? If so, confirm those who posed it. If not, turn them out. You have one more election to accomplish this. If Mr. Obama has four more years, the chances are good that he will be able to add one more to the Court, and there will be no turning back.

One can argue that this is a political strategic decision and it is not his to make. He would argue that it is his task to save the Constitution and this is the only way he knows that will accomplish that. Turn out the makers of this act which would march the United States down the path to federal control of everything, and do it while there is yet time to do so; or face the fact that the Court can no longer protect you from political consequences of your actions. If you want an entitlement state, here is your chance; if you want to reverse this course and move away from entitlements, here is your chance. And, incidentally, what we have is 2700 pages of bad law, passed by ideologues who had not read it and could not have known how bad it is, and approved by four Justices who haven’t read it either. If they’ll approve this they’ll approve anything. If you give Mr. Obama the chance he will add yet another to their number.

Mr. Roberts has proclaimed a reality. He might have gone with the conservative block and thrown the law out, thus making this election one of populism vs. the courts – something the liberals were preparing for. Now the issue is clear. This is a referendum on the entitlement state march down the Road to Serfdom. He may well have been wrong to do this, but it is what he has done.

If Mr. Obama wins this election he will have won and Obamacare will be implemented.

Ms. Pelosi told us that we had to pass the Bill so that we could find out what’s in it. We have done so. Now we know. And now that we know, we have a chance to reject it.

I have mail from readers who say that since Romney is unsatisfactory, they will vote Libertarian. TRhat is certainly an option.

I note that on the 1912 election President William Howard Taft, who took office as the designated successor to Theodore Roosevelt, failed of reelection because Roosevelt found him unsatisfactory and ran against him as the Progressive (“Bull Moose”) candidate. The result was predictable, the election of Woodrow Wilson. Wilson won a second term on the platform of “he kept us out of the War”, meaning The Great War, which after American entry under Wilson was called the World War.

I can well understand the frustrations of those who find Romney unsatisfactory. He was not my candidate. On the other hand, most of the people I know including myself find it a lot easier to gain influence and even power within the Republican Party rather than the Democrat party.  We do not live in a perfect world. In this real world, either Romney or Obama will become President and will appoint at least one Justice of the Supreme Court. Neither of those potential winners would be my first or even tenth choice to be President; but there is a lot more than a dime’s worth of difference between them.

You wrote:

"Ms. Pelosi told us that we had to pass the Bill so that w could find out what’s in it."

Perhaps you should read her complete remarks, so that you understand the context of the statement. It’s obvious to anyone who isn’t vested in taking her comments out of context that she was referring to the fact that given all the manufactured controversy, the only way The American People will find out what’s in the bill is when it’s implemented.

Of course, those with their own agendas won’t bother to actually review her remarks in their totality, because when it’s out of context and intentionally misconstrued, it makes a hell of a soundbite.

Which, of course, shows the validity of her point regarding the manufactured controversy and the reality.

M

But in fact we did have to pass the bill to find out what’s in it. And one of the things we find is that it fails to authorize funding of some of its own key elements: it was rushed into law defects and all. And I suspect that neither you nor anyone else believes that Ms. Pelosi actually read the bill that she conducted through the House. Indeed I would wager that not one of those who voted for that bill had actually read it. Twenty seven hundred pages is a lot of reading, and this was done by a lame duck Congress and even then has to use arcane parliamentary maneuvers to get it passed before that Congress was no more.  Yes: we had to pass the bill in order to find out what is in it. And what we are finding is not at all pleasant.

The simplest procedure is to repeal it, every bit of it, and then start over – assuming that there is any sentiment for a new national health bill at all.  The Clintons lost their Congressional majority on this issue, but Mr. Clinton was clever enough to disassociate himself from it in the election of 1996; and the Republicans were kind enough to run Bob Dole, probably the only man Clinton could beat. Romney is not Dole. Romney is more Mormon than Establishment.

But it is hardly unfair to say that the bill had to be passed in order to find out what was in it. No one knew what was in it when it was passed, and many are just finding out some of it now.

View 631 Monday, July 02, 2012

I continue to work on a new column, so this will be brief.

The controversy over the Roberts decision continues, with everyone speculating on what Roberts intended. There is speculation from someone who has in the past had sources inside the Supreme Court building that Mr. Roberts originally intended to vote to throw out Obamacare, but changed his mind; and that Mr. Justice Kennedy pleaded with Mr. Roberts to bring him back; and much other such. Much of the speculation is contradictory, so some of it must be wrong. Perhaps all of it is wrong. Mr. Roberts has been called an evil genius, Machiavellian,  a superb scholar, a damned fool, and almost everything else, and there is much speculation on his motives, his reasoning, his intentions, and his sanity.

None of that matters.

What matters is that Mr. Roberts has handed the question back to the political branches of the government.

For years the adherents of self government and political liberty have lost at the polls, and relied on the US Supreme Court to halt or at least slow the march of the nation toward nationalization of all significant issues. Over time this came down to a series of close decisions by the Court, and a slow – alternated by sudden lurches as with the Warren Court and its emanations and penumbras – march to the left toward nationalization of most significant social and economic issues.

We are left with control of nearly 20% of the economy to be decided by one man. One mortal man. We are left with the most fundamental issues of our time to be decided by thin margins, and even that condition depends on continuing to hold the Presidency whenever a conservative justice dies or decides to retire – and even then on finding potential Justices who will endure the barbarity of the Senate as expressed in the Bork and Clarence Thomas hearings. And that will continue.

http://www.washingtonpost.com/opinions/marc-a-thiessen-why-are-republicans-so-awful-at-picking-supreme-court-justices/2012/07/02/gJQAHFJAIW_story.html

http://blog.chron.com/texassparkle/2012/07/chief-justice-roberts-coward-or-evil-genius/

Whatever the motives of Mr. Roberts, he has sent the message that the Court cannot continue to be the only barrier toward the march of the nation toward national socialism. In my judgment it was clear to him – it certainly is to me – that handing the Federal Government direct responsibility for the 15 to 20% of the economy encompassed by health care, adding that to what the government already controls, is a fundamental change in the nature of the Republic. It is a fundamental change in the Constitution made without any Amendment. Ruling Obamacaret unconstitutional would make the Court the key issue of November 2012, when the key issue really ought to be, do you want the Federal Government running that much of the economy? Do you want to go where the country has been heading for the past decades?

Thus his decision: this is a political decision. Make it the key issue of the November 2012 campaign. You cannot rely on the Supreme Court to stand in the path of history and shout Stop! Perhaps at one time you could, but you are down to one man. You have bet the future course of the Republic on the life and integrity of five men; if any one of them dies or is disabled you will no longer have anyone standing in the way of this march to national socialism.

Mr. Roberts is one man, one vulnerable man, who sees the future clearly.

Now I have no sources inside the Court. I have never met Mr. Roberts. I have no idea what he is thinking, but I would be astonished if the above reasoning had never occurred to him. It seems obvious to me.

In any event the effect of what he has done is to make ObamaCare the key issue of the 2012 election as it was of the 2010 election. The 2010 election that sent a Republican to Ted Kennedy’s Senate seat. The election that reduced the Democratic power in the Senate, and gave the Republicans a majority in the House. The election that showed that raising taxes is not a popular platform to run on. And he has said that ObamaCare is a tax.

So now the pundits are castigating Romney over – what? Not being clear? He has said, very clearly, that he will act to repeal ObamaCare if there is any chance of doing so.

It seems clear to me. The November 2012 election is a referendum on whether the US continues on the road to national socialism – what about half the country calls the Road to Serfdom http://www.christiannewswire.com/news/6202320092.html — or not. It couldn’t be more stark.

The conservatives have for decades pinned their hopes on the US Supreme Court to save the country from the consequences of its political decisions. Mr. Roberts has said that will no longer work. Like Obama or hate him, like Romney or despise him, the issue is far bigger than either man.

I will try to deal with mail, much on this issue, tonight.

.

View 631 Sunday, July 01, 2012

All’s well at Chaos Manor, and with luck I’ll have today’s View done tonight. For the moment I am working on The User’s Column AKA Computing at Chaos Manor, and while that’s flowing I want to work on it.

The Washington DC area storms were of interest because two of my sons and all my grandchildren live in that area. One lives in DC and the other in Fairfax County. Both were inconvenienced but aside from lengthy power outages resulting in communications failures nothing of great importance happened, and all is well there. In Los Angeles we are having summer weather; the June Gloom, what the late columnist Jack Smith called “Wummer” or Winter in Summer, is over. Alas it ended just as my old friend former BYTE editor Paul Schindler came down to LA for a hike up the hill. We went up at 10 AM and it was blooming hot, not a cloud in the sky, and a very light sea breeze. Still it was a good hike, and we all enjoyed it including Sable with her fur coat. There’s a house at the bottom of the hill with a yard faucet hidden in some palmettos but Sable knows precisely where it is and always heads there when we come down.

Sable and former BYTE editor Paul Schindler on the hill above Chaos Manor. This is part of a 50 square mile park area that California maintains for me across the street from my house. I see that I should have brought the camera for its flash; the iPhone takes great pictures but sunlight and shadow remain, and you can’t really see what picture you are taking when you’re in bright sunlight. An iPhone 4S is all the camera you need for many purposes, but it is not at its best in bright of day.

And it’s a nice day for working, so long as the electric fans are in good shape, no need for air conditioning. The humming birds are fighting to get to the feeders I just refilled while the orioles look on in amusement, waiting their turn until they run out of patience. My old friend Richard is back from his stint in Chicago where he gets paid to watch pretty girls play volleyball, and no I am not making that up. And all’s well at Chaos Manor.

We have had several Chaos Manor adventures with computers, and it’s time I started telling those stories again, so I’ll be working on those this afternoon and some of tomorrow. I’m back.

Broke for dinner and Roberta and I watched a bit of television, in particular the prequel to the Inspector Morse series. This begins with Morse’s first case, as he comes back to Oxford as a brand mew Detective Constable. It was worth watching but it’s not the old Morse. Of course Oxford is the murder capital of England as Cabot’s Cove is the murder capital of the world…

Anyway it’s late, and I haven’t time to do a disquisition on the Obamacare decision. Actually I haven’t much to say that I didn’t say in my last essay. I believe Mr. Roberts doesn’t want to go down in history as a new Taney, substituting his judgment for that of the political departments when it isn’t at all clear what we ought to do. The people of the United States do not want to tell sick people to go off and die. It’s also clear that we can’t afford to do what Obamacare says we will do. There has to be some way of allocation of resources. There has to be some advantage to working hard and making money, or, yes, of inheriting from someone who did work hard and make money – but at the same time we don’t want to be rolling people out of hospital and into the gutter. (Although if the hospital is the old Los Angeles Martin Luther King Hospital, being rolled out to the gutter where someone might take you somewhere else might be preferable. I know a police officer who actually threatened with his weapon an ambulance driver who was taking his wounded partner to the nearest emergency room which was King. His partner was delivered to USC hospital. And the affair was kept quiet for many obvious reasons.

We don’t know what we will do, and we can’t afford what we are doing. This is a job for the political departments, and trying to make the courts decide what is essentially a legislative matter is not fair to the courts.  It is a burden they cannot bear.

The fact of the matter is that under no conservative view of the Constitution is there any federal obligation or power to interfere with the operation of health care and its insurance, yet there is also no chance that the political departments will simply get out of the way and force the states to deal with it. That would in my judgment be best. Perhaps something like Obama care will work in some states. Perhaps something else. But we can’t afford what we are doing, and it doesn’t satisfy enough of the politically active in the US. That is a constitutional crisis, and Mr. Roberts doesn’t want to be the man who decides it. I don’t blame him. Given the size and costs of health care and its complexity, nationalization of the health care industry will inevitably and probably irrevocably march this nation down the road to a national socialist state. Where that goes we do not know. And yes, I am aware of who else has used the phrase national socialism as a party name in what had been a Federal Republic. I also know that Mussolini died proclaiming himself an Italian nationalist and a socialist.

That’s more to say than I intended to say. It’s late and I have some other things to clean up.

View 630 Friday, June 29, 2012

Madison and Chief Justice Roberts

The uproar continues over the strange ruling by Chief Justice Roberts that (1) the Obama Care Act cannot be sustained as Constitutional under the commerce clause, and (2) it remains constitutional because it doesn’t matter what Congress says it is imposing, it’s a tax and if it’s a tax it’s Constitutional, and (3) it is the duty of the SCOTUS to implement the will of Congress when that is possible. IF we call it a tax we can uphold the act. He adds, obiter dicta, that it is not the duty of the Supreme Court to protect the people from the consequences of their political choices.

He doesn’t really believe that latter, nor do any of us; but it is still very clear. The government derives its just powers from the consent of the governed, the Constitution provides the mechanisms by which the people show their will and consent, and the Court may or may not be wiser than the political branches of the government, but the Court is, in the final analysis, subservient to the political branches. It can hold out only so long, and the Court is at the ends of its powers.

Roberts has said, and he certainly has evidence to support the view, that the trend in the United States has been in the direction of increased government control over individual activities. I do not think he likes that. This direction is away from the traditional view of federal/state relations, and certainly not that of either the Framers or of those who adopted the Civil War Amendments and the reconstitution of these United States after the end of Reconstruction. The political commitments to the concept of federal republic were made then, and until recently pretty well prevailed; but we are now on a course toward nationalization of many issues, of which health care is a primary example. The Court can delay, but it cannot prevent the implementation of a new national consensus at odds with what the Court is supposed to enforce. The Court can stand in the doorway only so long. We now have a clear case in which the will of Congress and the President are in conflict with what a narrow majority of the Court believes. A very narrow majority.

This leads to a Constitutional crisis.

There was a period in US history somewhat similar to this. The issue in those days was slavery. The trend in the United States was against the South’s peculiar institution, but the plain language of the Constitution reflected a political compromise — one of several political compromises which made the Union possible – that made slavery legal. The trend was against slavery, and clearly over time the institution was doomed; either the Constitution would be amended, or one or another bloc of states would secede. The issue was stark, and the arguments were largely moral on the anti-slavery side, and pragmatic on the slaver side. Keeping the Union together was the business of the political branches, and people as diverse as John Quincy Adams, Henry Clay, Daniel Webster, and many others worked out the Missouri Compromise, and later the Compromise of 1850 with the goal of preserving the Union while limiting the extent of slavery.

This was a delicate matter, and there was much at stake. There were more complexities than most understood. There were southerners who hated slavery but were terrified of the consequences of liberation. There were northerners who did not want equal rights for blacks – some were involved in the founding of Liberia (capital, Monrovia), a new nation in Africa to which freed slaves could be exported.

And there was Chief Justice Taney, who ruled that the compromises were all null. Taney ruled that slaves and descendants of slavery could not become citizens. The political compromises were over, and would not be renewed.

Turn now to Madison, who told us in the Federalist Papers that the Constitution entrusted the liberties of the people to the whole of the population. Hamilton in another of the Papers pointed out the weakness of the courts, and that the political departments would always prevail. These spokesmen for the Constitution made it clear that over time the will of the people – whatever that means – would prevail, and no combination of Constitutional forces could prevent that. The purpose of the Constitution was openly stated more than once by the Framers to be the suppression of what is today known as plebiscitary democracy. The view of the Framers on this subject is best expressed by the often quoted dictum “There never was a democracy that did not commit suicide.”

Chief Justice Roberts has in effect said that the health care measure is somehow fundamental to these United States. It needs to be decided, and it cannot be decided by the Courts. It will also not be decided by deception: if it is going to be imposed let it be imposed by Congress and let it be seen that it is not a matter of ‘commerce’ at all. It is an imposition of will by the political authorities and it is imposed as a tax. If you do not care for it, you have the power to repeal it.

Roberts did not address, probably on purpose, the technical matter of the origin of the Obama Health Care Act. Did it originate in the House or the Senate? For if in the Senate, it is not constitutional on its face, since it is imposed as a tax, and revenue measure must originate there. But Roberts’ point is that the Court is utterly divided. The law is clearly necessary and proper according to four members of the Court. It is clearly fatally flawed according to four other members of the Court. The Constitution did not contemplate that one man should decide on the political future of the United States, and what course it ought to take in future. Ruling on a narrow technical detail would merely delay the crisis.

It is time, the Chief Justice said, for the will of the people to be expressed through the political departments. You should not try to make the Supreme Court the final arbitrator of such political matters. It has not the wisdom for that.

This election will now be held largely on the issue of Obama Care. If the President wins this will be seen as a vindication of that act and of the philosophy behind it. If the President fails of election the Act will be repealed, and there is an opportunity for the United States to turn back and forsake its former ways.

Now it is up to us. Mr. Roberts has said he cannot protect you from the consequences of your actions, and he has done so at a time and in a way that makes the question stark and clear. Whatever his intentions, this is what he has done, and I for one thank him for it.