GOP Justices Ignore the Founders

Exclusive: As the Republican Supreme Court majority moves toward gutting health-care reform, the justices are making a mockery of the Constitution and the intent of the Founders who had good reasons to include the powerful Commerce Clause. But it appears GOP partisanship will again trump facts and reason, writes Robert Parry.

By Robert Parry

The Republican partisans who control the U.S. Supreme Court appear to have no regard for the actual language of the Constitution or the intent of the Founders. Indeed, the GOP justices, in their ham-handed questions attacking health-care reform, revealed themselves as far more devoted to right-wing talking points than to the law.

Based on their behavior on Tuesday posturing with goofy what-if questions about Congress mandating that Americans buy broccoli, cell phones, burial insurance, etc.   these partisans in black robes also demonstrated their deep-seated hypocrisy.

U.S. Supreme Court Justice Anthony Kennedy

They cast aside their supposed principles of “strict construction” and “judicial restraint” in favor of their own “legislating from the bench,” second-guessing not only the Congress and Executive Branch but the Founders themselves.

If these GOP justices actually cared about the Founders’ “originalist” intent, they would know that the open-ended power over interstate commerce that the Constitution grants to Congress was intended precisely for cases like the Affordable Care Act at times when the United States found itself at a competitive disadvantage versus its international competitors.

Any honest review of the nation’s founding era would reveal that key Framers of the Constitution the likes of James Madison and George Washington were pragmatists creating a system with a strong central government that could address the nation’s daunting challenges, including and one might say especially commercial ones.

That is why Madison, with Washington’s strong support, inserted the Commerce Clause into the Constitution. So, the central government could devise solutions that would enhance American competitiveness and thus strengthen the young nation’s independence from Europe.

For instance, Gen. Washington, who despised the weak Articles of Confederation because they allowed “sovereign” states to renege on promised funding for his troops, endorsed one of Madison’s early schemes to amend the Articles to give the central government control over the nation’s commerce.

“The proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure,” Washington wrote about Madison’s proposal. “We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”

Though Madison failed in his bid to attach his commerce amendment to the Articles, he revived the idea when the Constitutional Convention convened in Philadelphia in 1787. Though the convention was supposed to simply propose changes to the Articles, Madison and Washington engineered the scrapping of the earlier system to be replaced with an entirely new Constitution.

There at the Beginning

On the first day of substantive debate  May 29, 1787 a fellow Virginian, Edmund Randolph, presented Madison’s framework. The Commerce Clause was there from the start.

Madison’s convention notes recount Randolph saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation such as a productive impost [or tax] counteraction of the commercial regulations of other nations pushing of commerce ad libitum &c &c.”

In other words, the Founders at their most “originalist” moment understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum &c &c” notation suggests that Randolph provided other examples off the top of his head.

Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”

So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic success.

After the Convention, when the proposed Constitution was under fire from Anti-Federalists who favored retaining the states-right orientation of the Articles of Confederation, Madison returned in the Federalist Papers to arguing the value of the Commerce Clause.

Despite today’s right-wing attacks on the Commerce Clause, Madison considered it one of the least controversial elements of his new governing structure. In Federalist Paper No. 45, writing under the pseudonym Publius, Madison referred to the Commerce Clause as “a new power; but an addition which few oppose, and from which no apprehensions are entertained.”

In Federalist Paper No. 14, Madison explained how the Commerce Clause could help the young nation overcome some of its problems with communications and access to interior lands.

“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.

“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”

The building of canals, as an argument in support of the Commerce Clause and the Constitution, further reflects the pragmatic and commercial attitudes of key Founders. In 1785, two years before the Constitutional Convention, George Washington established the Potowmack Company, which began digging canals to extend navigable waterways westward where he and other Founders had invested in Ohio and other undeveloped lands.

Thus, the idea of involving the central government in major economic projects a government-business partnership to create jobs and profits was there from the beginning. Madison, Washington and other early American leaders saw the Constitution as creating a dynamic system so the young country could grow and compete with rival economies. [See’s “Did the Founders Hate Government?“]

Health Costs

In that sense, the Affordable Care Act fits neatly under the Commerce Clause and the “originalist” intent of the Founders. Today, one of the greatest burdens on U.S. industry in relation to its foreign competitors is the soaring cost of health care that has made American products more expensive and harmed the profitability of U.S. companies.

The Constitution also explicitly empowers the federal government “to promote the general Welfare” and when tens of millions of Americans are without affordable health care and tens of thousands are dying each year because they can’t afford to see a doctor, that is surely an impediment to “the general Welfare.”

Even, thoughtful conservative jurists in lower courts have agreed that the Affordable Care Act does conform to the language of the Constitution. For instance, in a Nov. 8, 2011, ruling, U.S. Appeals Court senior judge Laurence Silberman, an appointee of Ronald Reagan, wrote a legal opinion affirming the law’s constitutionality.

“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’” [Emphasis added by Silberman]

Silberman continued: “At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’

“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.

As Silberman noted, there is “no textual support” in the Constitution for people to challenge the individual mandate at the heart of the Affordable Care Act. That is because the Constitution didn’t place any limits on that regulatory power besides, of course, the political judgment required to pass a bill through both houses of Congress and get the President’s signature.

Starting with a Conclusion

But the Republicans and the Right have decided that despite the clear language of the Constitution and the intent of the Founders to give Congress broad powers to fashion policies to respond to the nation’s commercial needs the Affordable Care Act is “unconstitutional,” using the term as a curse word meaning, “we don’t like it.”

Of course, you might think that the Supreme Court justices, especially conservatives who call themselves “strict contructionists” and who honor the “originalist” intent of the Founders, would rise above petty politics. But if you think that you haven’t been paying attention to the right-wing hacks who currently sit in the majority on the Supreme Court.

Instead of a serious discussion of these legal issues, Republican justices on Tuesday sounded like pundits on Fox News, peppering U.S. Solicitor General Donald B. Verrilli Jr. with ludicrous what-if questions, like could the government require Americans to buy broccoli, cell phones, automobiles, gym memberships and burial insurance.

Strictly speaking, the constitutional answer would be yes if those activities were deemed part of interstate commerce and if Congress and the President had the political will to do so. The practical answer, of course, would be no, since those ideas are nutty.

Dreaming up crazy hypothetical possibilities has become something of a cottage industry on right-wing talk shows, but it was still shocking to hear these silly talking points coming out of the mouths of Supreme Court justices.

Perhaps the most hypocritical of the justices was Antonin Scalia, who is widely praised by the U.S. news media as a brilliant legal thinker but is really anything but. Scalia is a master of applying double standards to the Constitution depending on what outcome he wishes to achieve.

For instance, Scalia, as a self-proclaimed “originalist,” has argued that the 14th Amendment and its principle of “equal protection” under the law should not apply to equal rights for women and gays because the drafters in 1868 were thinking about the legal rights to black men after slavery.

However, Scalia had no problem using the 14th Amendment in December 2000 in Bush v. Gore to shut down the Florida recount and award Republican George W. Bush the presidency though surely Congress in 1868 wasn’t thinking about protecting the political ambitions of white plutocrats. [See’s “Are the GOP Justices Political Hacks?”]

Similarly, Scalia seems intent on taking a situational approach to the Commerce Clause. In 2005, Scalia embraced a broad interpretation of that constitutional authority in upholding a federal law prohibiting the growing of medical marijuana for personal use. Yet now, he’s parroting right-wing talking points about forced broccoli-eating to justify striking down a law he doesn’t like.

Whose Burden?

Even more shocking in a way was a question posed by Justice Anthony Kennedy, who is often considered the most reasonable Republican on the High Court, though he too has a troubling history of perverting the Constitution for partisan ends. He was the author of the Bush v. Gore decision that misused the 14th Amendment to put a popular-vote loser in the White House.

Kennedy told Solicitor General Verrilli that the government faced “a heavy burden of justification” for the individual mandate on Americans to buy insurance, the provision at the heart of the Affordable Care Act. Like his Republican cohorts, Kennedy insisted that Verrilli offer “some limits on the Commerce Clause.”

However, in his comments, Kennedy turned the actual “burden” on its head. It was the Framers of the Constitution who decided that the Commerce Clause should be open-ended, in part because they knew that the future challenges to the United States could not be fully anticipated. They left these future choices up to the democratic process and congressional debates.

It is not up to the Obama administration to revise the Constitution by saying what Americans may deem necessary in the future to compete economically or “to promote the general Welfare.” Who knows what emergencies might lie ahead requiring extraordinary actions?

The Framers were wise enough to create this flexibility for their “posterity,” although today’s Republican justices appear to fear that the democratic process might lead, down the road, to all sorts of silliness.

Kennedy was also misguided in claiming that the administration had a “heavy burden” in justifying the mandate. The “heavy burden” should actually be on the Supreme Court not to overturn an act of Congress that has been signed by the President — unless the Court has a clear constitutional rationale. Yet, in this case, a “strict construction” of the Constitution actually sides with the law.

In upholding the Affordable Care Act at the appellate level, Judge Silberman made precisely that point. He noted that opponents of the law lacked support for their case in the text of the Constitution and in Supreme Court precedents before adding: “We are obliged and this might well be our most important consideration to presume that acts of Congress are constitutional” absent “a clear showing to the contrary.”

So, while Silberman actually stood up for the conservative principle of “judicial restraint” showing respect for the Constitution and other branches of government, Kennedy and his Republican cohorts were creating a rationale for “legislating from the bench” even though their partisan goals defied both the language of the Constitution and previous precedents, including some like the self-grown medical marijuana ruling, that they had endorsed.

Which is why on Tuesday the Republican justices ended up repeating goofy right-wing talking points. These partisan justices may have in mind a new twist on an old legal adage, “When the law is on your side, argue the law; when the facts are on your side, argue the facts; when neither the facts nor the law are on your side, talk about compulsory broccoli-eating.”

Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.

23 comments for “GOP Justices Ignore the Founders

  1. michael walker
    March 31, 2012 at 18:55

    Calzone is spot on. His advice should be heeded. No one should be forced into buying this industry favoring health insurance. There is only one way to do it right, everyone is covered by medicare. Health care should be a right, not a privilege. If the Supreme court strikes this down for the wrong reasons, we’ll still be better off. In no way, shape or form should the health care industry in this country be promoted. Everyone under medicare is the only reasonable solution. We should hold out for that.

  2. Jeffrey Golin
    March 29, 2012 at 23:52

    I don’t use Windows 97 anymore. I stopped using it in 1985. It had too many bugs. I eventually upgraded to my present platform Windows 7. I don’t believe I have to live with the original version of Windows, as long as improvements are made that meet the essential criteria of ease of use, reliability, and utility. Those are the fundamental specifications from which this program derives.

    I hope everyone sees the obvious analogy.

    The Constitution is grounded fundamentally on Enlightenment Era principles, declaring human rights to be attainable for all, that despite horrible historical failures of human nature, it is possible to strive to improve the lot of humanity through laws and designing systems of government that avoid the historical hazards. This is the flaw in originalist thinking, imagining that there is anyone that would force us to go back to using Windows 97 in our computers.

  3. RetCol
    March 28, 2012 at 22:10

    This article affirming the centrality of the Commerce clause to the Constitution makes more persuasive the use of a mandate as was done by the Second Congress in the Militia Act of 1792.

  4. Simone Morgen
    March 28, 2012 at 20:12

    What I don’t get is how they get around the 1798 Sailors Relief Act (can’t remember exact name) under Adams (who I think knew the constitution)where there was a requirement to purchase health insurance under a new program.

  5. incontinent reader
    March 28, 2012 at 17:20

    The ObamaCare program may well be overpriced when compared to a single payer plan, but it is much less expensive than private insurance, even for those who may not need all of its options. By, endorsing what, in effect, is cherry picking, the Justices are betraying their ignorance of the nature of insurance and how it operates, and are denying Congress its legitimate authority under the Commerce Clause to craft a rational solution to this problem.

    It may be that by overturning this legislation, the Justices could well provide an impetus for Congress to revisit this issue and finally pass a single payer plan. If so, it would be an improvement, and would hoist the Republican Justices on their own pitard.

    Unfortunately, too much of all of this is wrapped up in politics and tactics, and is being used by a politicized Supreme Court and Republican leadership as a vote of confidence on the Administration, rather than a way to start to make health care more affordable.

    We have the most expensive health care in the world and it is not matched by better quality care. Moreover, it has caused many families to go under and lose their homes to foreclosure- it has been reported that as many as 1 in 3 homes are lost this way-so the Administration’s efforts, compromised as they were, should be applauded.

    • Sam Parry
      March 29, 2012 at 13:49

      Single payer health care will not happen. Period. Full stop. If this law is struck down, we will be a nation with 50 million permanently uninsured people.

      • calzone
        March 30, 2012 at 08:52

        First of all, the surest way to guarantee that single payer will never happen is to force the entire American population into the private insurance racket, as the Affordable Care Act seks to do. Secondly, if everyone had your defeatist attitude toward civil rights or workers rights, this nation could very well still be living under Jim Crow and working seven days a week in sweatshops.

        As Frederick Douglas said, “Power concedes nothing without demand,” and as Rosa Parks said, “Stand for something or you will fall for anything.”

        I suspect that this is what is happening now with the American liberal class falling lockstep behind this individual mandate and abandoning any hope for single payer. Having convinced themselves that an actual national health care system is impossible (even though the US already has a functioning national health care system for those over 65), liberals have now fallen for this individual mandate abomination, which actually helps ensure that single payer will never happen — a self-fulfilling prophecy.

        But what is it exactly that the liberals are falling for? As far as I can tell, this individual mandate will serve as a massive transfer of wealth from the lower classes to the upper classes. By forcing 50 million uninsured Americans into the private insurance racket, the law will guarantee a steady flow of profits into the coffers of the multi-billion-dollar insurance companies.

        Of course, this is not how it is pitched to the American people, but what else would you expect? According to,

        “The Affordable Care Act brings an unprecedented level of scrutiny and transparency to health insurance rate increases. The Act ensures that, in any State, large proposed increases will be evaluated by experts to make sure they are based on reasonable cost assumptions and solid evidence. This analysis is expected to help moderate premium hikes and provide those who buy insurance with greater value for their premium dollar. Additionally, insurance companies must provide easy to understand information to their customers about their reasons for significant rate increases, as well as publicly justify and post on their website any unreasonable rate increases. These steps will allow consumers to know why they are paying the rates that they are.”

        Excuse me while I throw up in my mouth a little. When the government tells you that “large proposed increases will be evaluated by experts” to ensure that premiums are not jacked up arbitrarily, I would just like to know what on earth makes any rational person believe that this is how it will actually play out.

        Most regulatory agencies are compromised to one degree or another by corporate influence, and some are so heavily infiltrated by industry insiders as to make them not just worthless, but dangerous — the FDA, SEC, and MMS come to mind. Even those that have demonstrated some degree of independence, such as the EPA, find themselves hamstrung and virtually powerless in the face of titans of industry, for example the tepid efforts to examine the effects of hydraulic fracturing.

        Corporations are always at least ten steps ahead of the regulators, and when they do get caught in a scheme to defraud the American people, for example the mortgage lenders and credit default swaps, they essentially get off with a slap on the wrist — if that. In fact, the taxpayer is then forced to bail them out while they give themselves exorbitant bonuses.

        After all we have seen play out over the years when it comes to corporate wrongdoing combined with government incompetence and/or corruption, why would anyone think that it will play out differently when it comes to the Affordable Care Act and promises to reform the crooked insurance companies?

        • michael walker
          March 31, 2012 at 19:07

          All of your points are well taken. I’m in your camp 100%.

  6. Bill Kurtz
    March 28, 2012 at 16:59

    f the Supreme Court throws out Obamacare (which I don’t expect), would libertarians have the guts to push the repeal of federal requirements that hospitals can’t turn away anyone if they ever accepted federal money (which almost all have).
    That is the crux of the economic problem here: People who can’t afford insurance depending on emergency room care they can’t pay for, leading hospitals to jack up rates on insured patients to make up their losses.
    I sometimes suspect the Tea Partiers who defend Medicare but oppose Obamacare because they don’t like the “undeserving” minorities and young people who would benefit want health care handled the way some small southern towns handle education: Whites all go to private schools, with the more prosperous whites informally guaranteeing that poor whites are paid for. Minorities are on their own in public schools.
    Leaving it up to emergency rooms to care for the poor is similar, and the fact that it’s ultimately more expensive to do it that way doesn’t seem to matter. Perhaps teabaggers feel the humiliation inherent in this system is worth the extra cost.

  7. March 28, 2012 at 16:48

    As far as I am concerned this is not healthcare. This is a way of directing funds that should go to a free healthcare system in instead give it away to the already crooked insurance companies who do everything in their power to not pay out. For that matter, why would you let insurance companies have anything to do with such a program when their interests are only their own pockets, our health be damned. For that matter, our ability to pay be damned (oh yeah, there are some income-related conditions, but I have no confidence in that). On the radio today the interviewer (NPR, forgot her name) that there are some 2,700 pages to the law. That many pages is not a law, that many pages is an escape clause for big companies and a pitchfork in the eyes for the rest of us, the great unwashed, not to mention unknowable.

  8. rosemerry
    March 28, 2012 at 16:20

    I have to agree with calzone. Forcing people to buy overpriced, defective products and calling it “healthcare” when the insurers do their best to refuse needed procedures and riddle the system with red tape, forcing medical staff to waste endless hours on trying to sort out the problems. Any sensible human would want a centralised government or state-run plan NOT for profit and waste, but Obama did not support even an option for that.
    The KRATS on the SCOTUS show the greatest corruption, incompetence, self-aggrandising pomposity, making non-Mercans wonder how five such duds could be selected from a million US lawyers. Political appointment of judges is complete madness.

  9. calzone
    March 28, 2012 at 14:34

    Let’s face it, the individual mandate is a travesty and a gross overstep of government authority. In a free country, the government should not be mandating that you purchase anything. Of course, people like to hold up the example of car insurance, but whether the auto-addicted American people believe it or not, it’s actually not necessary to buy a car in the first place. Buying a car is a choice, unlike being born, which seems to be the only pre-condition for the individual health insurance mandate.

    Personally, I am outraged that the government would try to force us to buy that overpriced defective product from greedy, crooked insurance companies which we would all be better off without. Obama and his cohorts in Congress have done more to set back the possibility of universal health care than any Republican president could have ever dreamed of. And “liberals” (whatever that means these days) cheer this travesty on and complain about unfair hypothetical questions that the right-wing Justices pose about being forced to buy cell phones, or broccoli.

    Honestly, those questions don’t sound so crazy to me — I was wondering the same thing. Of course, the difference is, cell phones and broccoli are products that we might actually want, unlike these crooked insurance policies with their high premiums and $2,000 deductibles.

    BTW, can someone provide me with a working definition of the word “liberal” these days? As far as I can tell, liberal now means someone who supports assassinating US citizens without due process, authorizing the military to indefinitely detain US citizens, someone who opposes single-payer health care and supports forcing Americans to purchase private insurance from crooked companies. Perhaps the working definition of “liberal” is simply someone who supports everything President Obama does, no matter how right-wing or reactionary the policy is.

    • calzone
      March 28, 2012 at 15:00

      And BTW, before someone points out that the Affordable Care Act also promises to reform the crooked insurance companies so that they stop screwing over their customers (by refusing to cover certain illnesses, by refusing to pay out when customers actually get sick, by over-charging on premiums, etc.), may I just pre-emptively say, “give me a break.”

      Regulations also exist on Wall Street, but did that stop the banksters and speculators from crashing the global economy in 2008? The Food and Drug Administration is mandated to keep unsafe foods off the market, but does that stop Monsanto from poisoning our food supply with GMOs? The Clean Water Act is supposed to keep our rivers clean, but does that stop Halliburton from destroying entire ecosystems and drinking water supplies with hydraulic fracking? Did the Minerals Management Service keep the Gulf of Mexico safe from BP’s reckless deep sea drilling in 2010?

      The fact is, none of our regulatory bodies live up to their mandates, and the reason is simple: rampant corruption at all levels of government. The “regulators” are mostly former industry executives who perform a stint “monitoring” the companies that they once worked for, and then, once they have completed their “public service,” get a cushy position on the Board of Directors of those same companies (if they served their masters well).

      These billion-dollar insurance companies with their armies of lawyers will find ways around these new regulations contained in the ACA, mark my words. And who will be stuck with the bill? The American people, who actually are required to follow the law.

    • tom
      March 29, 2012 at 00:27

      If “the individual mandate is a travesty and a gross overstep of government authority” then are the mandates requiring people to pay for Medicare, Social Security and federal tax also a travesty?

      • calzone
        March 29, 2012 at 10:33

        Not in my opinion, no. There is obviously a huge difference between popular public programs such as Medicare and Social Security, and this travesty known as the individual mandate.

        If there was actually any desire to fix the broken health care system in the USA, that entire debacle back in 2009 could have been avoided (along with this current Supreme Court case). There was no need for that long, drawn-out legislative battle complete with raucous town hall meetings with guns being brandished. All they had to do was say, “OK, for all you uninsured people, we are going to allow you to opt in to Medicare.”

        Done deal. Everyone would have jumped at the chance. No need for a year and a half of partisan wrangling, no need for 2,700 pages of legislative jargon designed to ensure loopholes for the insurance companies, no need for this Supreme Court battle. They could have solved this problem with an amendment to the Medicare Act of 1965, and that would have been that.

        But of course, that would have cut into the profits of the insurance companies and Big Pharma, so that wasn’t going to happen. Instead, we got this individual mandate, forcing us to buy policies from the same corporations that have been screwing over their customers for decades.

        The best thing that could happen now is for the SCOTUS to strike this abomination down, regardless of their hypocritical reasoning. Then we can start over, and perhaps use the most obvious solution to this health care crisis: Medicare for All.

        • Sam Parry
          March 29, 2012 at 13:44

          Calzone — I don’t disagree with you on your criticisms of the individual mandate concept. I don’t want to be forced to buy private health insurance. But, since I’m not 65, that’s the only practical choice I have today anyway, unless I go without health care, which simply imposes my costs on to everyone else.

          Still, none of our personal objections changes the fundamental question of whether this is constitutional. If the Roberts Court strikes this down, it will be imposing a new definition of the Commerce Clause that has never before existed.

          The plain language of the Commerce Clause gives Congress total authority to regulate interstate economic activity — which means it CAN force you to act just as much as it CAN force you to not act. There is no “constraining principle” in the plain language of the Constitution on Congress’s ability to regulate economic activity. Period.

          If the Roberts Court strikes down the ACA or any part of it, they will be inventing a new limit on Congress’s authority to regulate commerce and, in that sense, rewriting the Constitution.

          All of that said, that is the role the Supreme Court plays in our government. Like the Vatican, they are the ultimate keepers of the Constitution and they get to interpret what it says. Like it or not, the Roberts Court will be redefining the Constitution according to their extremely partisan political views, which in this case could for the first time place a limit on Congress’s until now absolute authority to regulate interstate commerce.

          • calzone
            March 29, 2012 at 14:44

            Sam — I respect and admire your sense of responsibility to your fellow Americans, your willingness to purchase a product that you don’t necessarily want in order to keep prices down for others. Unfortunately, this mentality relies on a luxury that is in short supply for too many Americans: the ability to pay for these insurance policies.

            I understand that the ACA is supposed to mitigate the cost of health insurance (as opposed to health care) for those who genuinely can’t afford it, but will it really? What about for those who can barely afford it? What about those who are struggling to make ends meet month after month, paying off debt (student loans, underwater mortgages, credit cards, etc.), the long-term unemployed or just those in between jobs?

            For SOME people, it makes MUCH more sense to go without health insurance for a limited amount of time and just keep their fingers crossed until they are lucky enough to land a job that offers luxuries like a health plan and paid vacations.

            Of course we should not be put in the position to make this determination in the first place. We pay taxes up the wazoo for things we don’t need, particularly this far-flung empire of military bases and “global contingency operations,” as the Obama administration now calls the “war on terror.”

            The way it’s supposed to work is this: we pay taxes for public services that promote the general welfare, as articulated in the Constitution. NONE of these policies promote the general welfare. All they do is further enrich and empower a tiny minority at the expense of the rest of us. And all this “compromising” achieves on the part of “liberals” is to further push us down this path of no return.

            Before you know it, you will be defending things you never thought imaginable, such as debtors prisons and slave labor camps. It may sound crazy now, but let me know how crazy it sounds a decade from now if we continue on this path.

  10. March 28, 2012 at 13:40

    The fundamental flaw of the originalists is that they fail to understand that the Constitution is a universal declaration of human rights, that its provisions represent a minimum of what is necessary for a stable and just society. Trouble awaits the nation which denies the people what they understand to be basic human rights.

    What human right could be more basic than the right to live? And yet 40,000 people are denied that right every year, usually because they cannot obtain insurance. Probably hundreds of thousands more suffer loss of a limb, an eye, their hearing or simply suffer needlessly because of the perversity of so-called “conservatives.”

    The answer to the justices should have been that if 40,000 people were dying every year because they were unable to afford broccoli, yes, it is entirely constitutional for the federal government to find a way for them to buy it. We do that already through Food Stamps, and no one has been so vicious and partisan to challenge the constitutionality of that.

  11. Gregory L Kruse
    March 28, 2012 at 13:30

    What miracle is going to get democracy out of this one? If the ACA is vacated by the Tea Party Court, speculators push the price of gas to $5, and adoration among the average persons of the super-rich continues to strengthen, Romney will win the presidency along with the Senate. He is sure to appoint at least one judge, which will make the Court corporation- friendly for a generation. What miracle is going to get democracy out of this one?

  12. Sam Parry
    March 28, 2012 at 13:26

    Silberman’s ruling is quite persuasive on the fact that there are no “doctrinal limiting principles” — either in the text of the Constitution or in case precedence — on the power of Congress to regulate interstate commerce. If the Supreme Court shoots down the individual mandate, it will be inventing a new limit on Congress that has never existed before.

    And what’s more, it would be ignoring the obvious reality all Congress is saying in the individual mandate is that you must pay for your own health care through health insurance as opposed to crippling the health care system by not getting insurance and then passing your unpaid costs onto everyone else.

    To take it a step further, all Congress is really saying with the individual mandate is that you must pay for your health care before you get sick as opposed to when you get sick. This is not a question of whether a mandate is Constitutional since everyone agrees that Congress could impose a mandate at the point of sale — even if that mandate would be worthless since very few uninsured people can afford tens or even hundreds of thousands of dollars to cover health emergencies. In other words, the issue is not if a mandate is Constitutional, it’s when can Congress impose a mandate.

    If the mandate is struck down, this will redefine the Commerce Clause in ways our founders never imagined.

  13. lYNNE
    March 28, 2012 at 11:57

    iI totally agree, but I also would like to point out the FACT that the GOP and the Heritage Foundation were the ones that came up with the idea of an individual mandate in the first place. Even in 2008 Senator Grassley was selling the idea by using the analogy of everyone who drives must have care insurance.
    So they come up with the idea. When Obama compromises with the Insurance industry and supports the GOP mandate talk radio uses this clause to scare Americans. Now the GOP Supremes need to wiggle out of the mandate and all the GOP politicians scream about ‘FREEDOM AND LIBERTY” being taken away by Big Govt.
    Once again, talk radio controlled the message and the GOP.

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