A Judicial War on Democracy

Exclusive: Comments on the U.S. Supreme Court’s three-day debate over the Affordable Care Act have focused on the damage the five Republican justices are expected to do to President Obama by striking down his prized new law. But the bigger story may be their judicial war on democracy, says Robert Parry.

By Robert Parry

James Madison and other Framers of the Constitution had their concerns about the potential excesses of democracy thus explaining the six-year Senate terms and the intricate system of checks and balances but they also trusted in democracy and the ability of the people’s government to fashion national solutions to serious problems.

That was one of the reasons Madison and the Framers granted Congress an unlimited power to regulate interstate commerce, trusting that political leaders operating within the democratic process would recognize the needs of their time and apply this broad authority as necessary “to promote the general Welfare” of the American people.

Former U.S. Supreme Court Justice Sandra Day O’Connor

But the spectacle that has unfolded over the past three days before the U.S. Supreme Court marks an historic reversal of this longstanding trust in democracy, as the Court’s narrow right-wing majority prepares to eviscerate the Commerce Clause as part of a broader assault on the principles of representative democracy and on the Framers’ philosophical belief in the value of government itself.

These five Republican justices John Roberts, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito appear poised to effectively rewrite the Constitution’s Commerce Clause in order to justify thwarting the judgment of elected officials who enacted the Affordable Care Act in 2010.

If the GOP Five continue on this presumed course toward striking down “Obamacare,” it also would become the latest front in what looks to be a right-wing judicial war on democracy with the Supreme Court’s Republicans serving not as fair-minded arbiters of the Constitution but as a black-robed rear-guard of an ideological army.

Bush v. Gore

The first major battle of this judicial war on democracy was the Bush v. Gore decision in December 2000, overturning the will of the American electorate, which favored Al Gore both nationally and apparently in the key state of Florida.

The Court’s Republican partisans first enjoined the state of Florida from continuing a recount so the result would not undermine George W. Bush’s “legitimacy” once the Court could figure out a rationale for handing him the Presidency. Then, they got to work coming up with some “constitutional” excuse.

The President’s power to appoint federal judges was of particular importance to Justice Sandra Day O’Connor, who was eager to retire so she could tend to her ailing husband. As reporter Mollie Dickenson learned in the days after the November 2000 election, O’Connor had been distraught on Election Night to hear the TV networks initially declare Gore the winner in Florida.

Dickenson reported that O’Connor, at an Election Night party, was “visibly upset – indeed furious – when the networks called Florida for Vice President Al Gore.” The justice declared that “this is terrible” and gave others attending the party “the impression that she desperately wanted Bush to win,” Dickenson wrote.

In that same article, dated Dec. 11, 2000, the day before the Supreme Court ruled on Bush v. Gore, Dickenson quoted a former high-ranking Justice Department official in the Clinton administration as grasping the Court’s conflict of interest over the President’s appointment power.

“The Supreme Court’s vote is a totally self-interested vote,” the former official said. “They are ensuring that they will remain in the majority, even increase their majority.”

Still, Gore remained confident that the Supreme Court and especially O’Connor would uphold the “rule of law” and allow the legally mandated Florida recount to proceed. Gore apparently couldn’t get his brain around the emerging reality of a judicial process thoroughly infected by partisanship and ideology.

Behind the scenes, O’Connor was collaborating with Justice Anthony Kennedy in cobbling together a ruling that relied on a tortured interpretation of the 14th Amendment to justify awarding the White House and the power to appoint federal judges to the popular-vote loser, George W. Bush.

The key part of the ruling approved on a 5-4 vote cited the Amendment’s “equal protection of the law” principle to throw out the recount because of Florida’s variant voting standards across the state. The Court then gave the state a laughable two hours to fix the problem and complete a new recount.

The ruling, with Kennedy as the principal author, had turned the 14th Amendment on its head because the recount was an attempt to reduce the discrepancies in Florida’s voting processes, which included antiquated equipment that undercounted votes in poor and minority precincts while state-of-the-art equipment in richer and whiter precincts had far fewer lost votes.

By blocking the recount, the Court, in effect, ensured that the votes of wealthy whites had more “equal protection” than those of low-income retirees, blacks and Hispanics. In other words, the five Republican justices used the 14th Amendment to guarantee greater racial and social-class discrimination in the Florida vote count, not less.

Also, by allowing only two hours to fix the problem and conduct the recount, the GOP justices ensured that the state’s Republican officials working under the gaze of Gov. Jeb Bush could declare his brother, George W. Bush, the winner of Florida’s electoral votes and thus the Presidency of the United States. [For details, see Neck Deep.]

Appointment Power

After Bush took office, things did look up for the Judiciary’s right-wing faction, which benefited from a steady stream of reinforcements, new conservative judges who strengthened the Right’s ideological battle lines in the federal courts.

Also, when right-wing Chief Justice William Rehnquist died on Sept. 3, 2005, Bush replaced him with right-wing Chief Justice John Roberts. When Justice O’Connor finally stepped down on Jan. 31, 2006, Bush filled her seat with an even more conservative justice, Samuel Alito.

Still, there was that pesky thing called democracy that couldn’t always be thwarted, especially if the victory margins were too big. So, after President Barack Obama won Election 2008 and brought in a Democratic Congress, the Republican majority on the Supreme Court had to swing into action with a powerful counter-attack to protect the GOP’s crucial financial supply lines.

On Jan. 21, 2010, the five justices — Kennedy, Roberts, Scalia, Thomas and Alito — pushed through the Citizens United decision, clearing the way for the ultra-rich to effectively buy elections through unlimited spending on attack ads against disfavored candidates. Again, Justice Kennedy was the author.

Though right-wing billionaires had already created powerful artillery batteries in the form of a massive media infrastructure and influential think tanks, they now could pour millions and millions more dollars directly into campaigns through SuperPACs.

This combination of saturation propaganda from the Right’s media, think tanks and SuperPACs guarantees that many Americans will rally to the Right’s banner even when that means lining up against their own interests and on the side of powerful corporations and the wealthy.

It also appears that even on those rare occasions when the Democrats can muster the votes in the House and a super-majority in the Senate to send an important bill to the desk of a Democratic President, the Republicans on the Supreme Court will fulfill their role as a reserve army in black robes, a last line of defense waiting to do whatever is necessary to win the day even if the Constitution becomes collateral damage.

That is the significance of what has played out over the past three days. Based on the tone and tenor of the questions, it seems the five Republican partisans are engaged in another flanking maneuver against democracy, to wipe out a duly enacted law.

Inventing Law

Though the Constitution sets no limits on the power of Congress to regulate interstate commerce since the Founders trusted in the future judgment of elected officials to make reasonable decisions for the good of the country the GOP Five apparently intend to fix this oversight by the Framers.

The GOP Five apparently will amend the Constitution by fiat, inserting new restrictions in the Commerce Clause and then judging that the health-care law is outside those limits. [See Consortiumnews.com’s “GOP Justices Ignore the Founders.”]

Underscoring this intent, the Republican justices spent their third day of oral arguments musing about what to do with the remainder of the Affordable Care Act once they strike down its central feature, the individual mandate to buy insurance, as a violation of their newly invented constitutional limitation on the Commerce Clause.

This need for the GOP Five to rewrite the Commerce Clause was driven home by a straightforward U.S. Appeals Court ruling by a conservative senior judge, Laurence Silberman, who bluntly endorsed the constitutionality of the Affordable Care Act by noting the absence of any limitation on congressional regulation of national commerce.

In a Nov. 8, 2011, ruling, Silberman, an appointee of Ronald Reagan, wrote: “We look first to the text of the Constitution. 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.

Silberman’s accurate and indeed obvious statement that there is “no textual support” in the Constitution for challenging the individual mandate as unconstitutional should be especially striking to “strict constuctionists,” as all the GOP Five claim to be. “Strict construction” means to follow the words of the Constitution precisely.

For decades, this principle of “strict construction” has been a central talking point for the Right, which has accused “activist judges” of divining new constitutional “rights” which are not explicitly stated.

Some of those right-wing complaints are baseless since the Courts in, say, striking down racial segregation in the South have simply followed the clear language embedded in constitutional provisions such as the 14th Amendment and, significantly, the Commerce Clause.

In such cases, the Right also has argued that these issues should be left up to the elected branches of government and it is not up to the Supreme Court to intuit new “rights” in the Constitution. Except it appears when the process goes against the Right. Then, it’s up to the Court to invent new “rights” and declare duly enacted legislation to be in violation of those “rights.”

That is precisely what the GOP Five were signaling in their three days of acting more like a pundit panel on Fox News than as jurists entrusted with the profound responsibility to act as a fair arbiter of the law.

Goofy What-Ifs

On the second day of oral arguments, with their goofy what-if questions about Congress forcing Americans to buy broccoli, gym memberships, cell phones and other silly items, the Republican partisans were signaling that they were not only going to second-guess Congress and the President but the Framers as well.

Though Madison and the other Framers had left the power to regulate interstate commerce open-ended understanding that the nation might face challenges unforeseen in the late 18th Century Kennedy and other GOP justices demanded that the Obama administration present some limitations to the Commerce Clause.

When U.S. Solicitor General Donald B. Verrilli Jr. wouldn’t play their what-if game, Kennedy and the others indicated that they would take it upon themselves to invent those limits, presumably to insure that no future Congress can require Americans to buy broccoli, gym memberships, cell phones or health insurance.

The Republican justices then got down into the reeds of legislative minutiae discussing what other parts of the law should be dumped and what scraps might be kept. Sometimes, the Court’s debate sounded like a college bull session as some know-it-alls declare how they would solve some nettlesome problem if they were king.

As Washington Post columnist E.J. Dionne Jr. noted they acted like “they were members of the Senate Health, Education, Labor and Pensions Committee. Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young.

“On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress ‘wouldn’t have been able to put together, cobble together, the votes to get it through.’ Tell me again, was this a courtroom or a lobbyist’s office.

“One of the most astonishing arguments came from Roberts who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited ‘pediatric services’ and ‘maternity services.’”

Justice Antonin Scalia also let his right-wing ideological uniform peak out from under his black robes when he dressed down Verrilli for noting that the United States has accepted the principle of providing medical treatment for a person who is injured or stricken with a sudden illness.

“We’ve obligated ourselves so that people get health care,” Verrilli said, drawing a riposte from Scalia: “Well, don’t obligate yourself to that.”

In other words, what the world saw over those three days was the intrusion of five right-wing justices into the democratic process on behalf of an Ayn Rand-style “free-market” capitalism which says that lesser people or at least those with lesser money should be allowed to die untreated and that the people through their representatives in Congress shouldn’t be allowed to do anything about it.

It might be noted here that when “free-market” champion Ayn Rand contracted lung cancer, she snuck into the Medicare system, using a revised spelling of her first name and her husband’s last name, to get government-paid-for medical care.

It also might be noted that the individual mandate was a conservative idea devised by the right-wing Heritage Foundation and embraced by Republicans, such as former House Speaker Newt Gingrich and former Massachusetts Gov. Mitt Romney.

Embraced that is until President Obama tried to demonstrate bipartisanship by reversing his earlier resistance to the idea and adopting the individual mandate as a way to expand health coverage and contain rising costs within a system of private health insurance companies.

Then, the individual mandate suddenly became an “unconstitutional” affront to American “liberty,” even though conservative jurists like Silberman could find nothing in the Constitution or in court precedents to make it so.

Before the Supreme Court’s ruling comes down in June, it is possible that Kennedy or another member of the GOP Five might have some second thoughts about the course they’re on possibly after a shame-inducing flashback of their lofty pronouncements about “judicial restraint” and their beloved “strict construction” of the Constitution.

But the writing seems to be on the wall that the five Republicans on the Supreme Court will take out the Affordable Care Act as part of their larger judicial war on democracy.

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 neckdeepbook.com. 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.

43 comments for “A Judicial War on Democracy

  1. Eliza
    April 1, 2012 at 21:24

    “One of the most astonishing arguments came from Roberts who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited ‘pediatric services’ and ‘maternity services.’”

    All insurance covers issues we might never confront. That’s what insurance IS!

    And please notice that his “targeted” “examples” are women and their babies. Sure can’t make people who are not women having babies help pay for women having babies, can we? Women who have babies are evil and we must not encourage that. What about kids with mumps? What about men with “erection problems”? Oh, no. It is maternity and pediatric services — those evil women are making babies and we are NOT going to pay for it!

    I am really getting tired of this Bible-Logic (Eve caused us all to be sinners) crap. No way was that an “accident.” He is a very smart man. He had that one ready. Which Dominionist cult is he snuggling with these days?

    Justice Roberts has ingested and digested the Rovian-religionist-politician’s “talking points” and is excreted them right there in the Supreme Court. How disgusting can this get? (Rhetorical question, folks. We’ve got a lot more coming at us, much of which I doubt we can even imagine.)

  2. Dennis Miller
    March 30, 2012 at 17:55

    That was one of the reasons Madison and the Framers granted Congress an unlimited power to regulate interstate commerce.

    Are you serious, Madison and the Framers were dead for 100 years before the interstate commerce act was passed. My pet cat knows more about history than you do. Maybe you should think about a new line of work.

  3. chmoore
    March 30, 2012 at 11:53

    And now back to the published article at the top.

    Maybe it’s time to consider the following, as a challenge to the self-absorbed omnipotence of the Supreme Court’s GOP 5:

    Constitution – Article 1, Section 2, Clause 5 – “The House of Representatives…..shall have the sole Power of Impeachment.”

    “Article 1, Section 3, Clause 6, The Senate shall have the sole Power to try all Impeachments.”

    Naturally of course, there would have to be sufficient majorities to pull this off, as well as getting worthy replacements confirmed, but it seems like a worthy goal.

    I think just for a startup, the idiotic decisions of Bush.v.Gore, Citizens United and now the impending ‘Healthcare Reform Act’, would seem to be strong evidence in themselves that these “justices” think of their own personal preferences with a much higher priority than the integrity of the country.

    If it seems insurmoutable, consider this, before Clinton, it seemed unlikely that a sitting president would be impeached for denying Hanky-Panky.

    • April 1, 2012 at 19:14

      it also seemed unlikely that a potus would engage in witness tampering and purgery,oh ,that slipped your mind

  4. clifford
    March 29, 2012 at 21:49

    President Obama broke every law of the constitution just to pass this OBama care. I wished the American people as a whole were’nt so stupid. We would never have voted a Socialist into office in the first place. One day when we lose every thing we have enjoyed is gone. Maybe the stupid will see the light. I dont it. When they tax every thing to death say goodby to you warefar checks and when you cant speak your peace without being put into prison, may I say we deserve it. We are the most ignorant people on the face of the earth when it comes to truth.

    • Dave
      March 29, 2012 at 23:29

      Your whole post is nothing but ignorant nonsense, to whit”

      “I dont it”


      And you have the effin’ nerve to write, “I wished the American people as a whole were’nt so stupid.”

      Have a look in the mirror, bub. Projecting your deficiencies onto others is an unfortunate trait of the wingnut but really, you’re making it to easy to illustrate that sorry feature of the wingnut “mind”.

      • March 30, 2012 at 12:40

        remember what i said,these people are ……………delusional

      • April 1, 2012 at 19:11


  5. John Bentley
    March 29, 2012 at 21:17

    Perhaps a small experiment could once and for all determine who is right. that is the conservative republicans or the liberal democrats.
    Simply creat two zones in the country. One where the conservatives hold sway and the liberals the other. In ten years see which zone is the better place to live and work.

    • Dave
      March 29, 2012 at 23:26

      Already have it. Compare the quality of life in Blue States with Red States. That pretty much tells the tale.


      You can google using my phrase above and find loads of other links that will tell you how shamefully awful it is to be in a Red State.

      Oh, and the red states take more from the Federal Government than they pay in while we in Blue States do the opposite. That means we subsidize wingnuts and I’d be more than happy to put an end to that and watch them all suffer. Asshats.


    • March 30, 2012 at 18:42

      ever hear of the civil war ?

  6. bigbird
    March 29, 2012 at 19:42

    These “guys” are left wing ideolougs, period. They applaud the 4 justices that will vote to uphold the law because they agree with them, and “damn” those who don’t. For me the less the federal govt. tells me what I am to do the better. Yes we can fix healthcare but it doesn’t require an executive order to do so. Also, what about all the deals that were made and the exceptions etc. That’s ok because it achieves the unconstitutional results of the left. It is really simple if you want a socialist society there are many places you can go live and suffer with the socialist policies of that country. But, for us who are Americans we are determined to preserve the democracy we have had from the inception of this wonderful country.

  7. March 29, 2012 at 17:42

    What a joke liberals are ! lets cut to the chase . Liberal (Ca.)courts have been overturning election results,making laws ad nauseum for years ! You guys loved it. Now i read you whine, cry ,complain because real people have held their hands and said “Stop”!to this never ending parade of delusional Nazi nonsense ! Remember when obama tried to embarrass the justices @ a state of the union address ? Face the facts, Your power grab didn’t work. You thought that your time had come and you didn’t have to hide it anymore. Sorry it’s over for you ! Paybacks a bitch !

  8. March 29, 2012 at 17:23

    listen to you delusional liberals whine ! you left wing kooks have been making laws by using the courts to come up with so much crap that the rest of us have our heads spinning ! remember when obama insulted the court @ his state of the union address ? paybacks a bitch ! lol !

    • Kathryn
      March 30, 2012 at 01:24

      See, therein lies the rub – one expects this ‘party mongering’ to be acceptable even laughable when the supposed high court plays favorites with the people’s wishes – which is managing health care costs all around – patient and provider. This WILL turn around – it will go back to Congress and changes in whatever laws will occur – but it will just take more time. In the meantime – “not while Obama is President” – will continue. What’s sad is elephant riding all the way to town (Republican’s bumpy joy ride) doesn’t match their bank accounts either. Only 1% have it remember, Mr Cash? You are only hurting yourselves.

      • March 30, 2012 at 18:41

        kathryn,get a grip,the peoples wish is to get rid of this travesty,look at the polls,where did you get this twisted irrational logic,it’s party mongering when you don’t agree with it,get it right,obamacare is ………..gone ! none of your delusional logic will save it ! didn’t you hear what the court said “we’re not stupid” as for this socialist obama,kiss him……goodbuy !

  9. claudsam
    March 29, 2012 at 13:55

    Since you know the Constitution so well, please tell me where in the Constitution is there a limit on Congress’s ability to regulate interstate commerce. I’d love to see it. So would everyone who has ever served as a federal judge.

    If the Roberts Court strikes down the individual mandate, it will be imposing a totally new definition of the Commerce Clause on the nation.

    All you strict constructionists out there don’t seem to know your own Constitution.

  10. FoonTheElder
    March 29, 2012 at 13:13

    All you need to do today to understand the right wing constitution is declare yourself a phony ‘constructionist’ and politically decide a case based on your political biases. Then you work backwards and come up with a phony argument for your decision.

    I don’t remember any of the founders deciding that money and property equals speech, that corporations are people (only when it is to their advantage) and that the Supreme Court decides presidential elections.

    • Allen
      March 29, 2012 at 14:19

      You are so ignorant.

      The Court did not “decide” an election. It ruled that a group of vote counters could not interpret the “intent” of a voter who failed to complete the voting process. Please educate yourself on issues before you post…

      • Gregory L Kruse
        March 29, 2012 at 14:48

        That is a completely innocent interpretation of what happened.

      • March 29, 2012 at 15:04

        If ruling that certain votes are not admissable doesn’t “decide” a close election, I don’t know what does.

      • claudsam
        March 29, 2012 at 15:09

        Did you read the ruling? That’s not what the Supreme Court said.

        They ruled:

        — The state of Florida could do a recount, provided that it was:

        1) A statewide recount, and
        2) There was a clear statewide definition of how to count the votes.

        — However, there was no time to set a unified statewide definition of how to count the votes.

        — Therefore, the state (then run by the brother of one of the candidates) had to certify the election by the next day (I think) or risk losing all its electoral votes.

        Oh, and don’t ever cite this ruling as precedence for any future cases.

        Under this ruling, the Supreme Court essentially said — Hey, Katherine Harris, you call it.

        Yeah, that’s above the board.

        • Bob Everett
          March 29, 2012 at 17:42

          If the Dems hadn’t originally set it up to recount only in those areas where it was sure to pick up votes instead of the entire state, the problem would not have reached the Supreme Court in the first place. They failed to do in Florida what they succeeded in doing in Minnesota in 2008. Their votes count, the other guys votes don’t. The mess in Florida was a self-inflicted wound by the election fraud wing of the Dumbocratic party. By the way … a shocker for you … Bush was still ahead after all the half-assed recounts the Demmos did. Never hear about that though do you?

          • Gec
            March 29, 2012 at 20:43

            Bush lost Florida …. Anyone who says different is a liar. He really turned out to be a great President .. Didn’t he? He once said God told him to invade Iraq and kill one million Iraqis. What kind of God is that?

    • Dave
      March 29, 2012 at 23:31

      You’re absolutely right. In fact the revolution was a war against the biggest corporation of its day, the British East India Co. The Crown merely enforced laws made up to benefit that company and it was those laws that angered Americans enough to revolt.

      We could use some of that same spirit today as we lose our country to a handful of ultra wealthy fascists and their filthy corporations.

  11. mrpat
    March 29, 2012 at 13:01

    It is a confect of interest, when the the Judges can rule on something that they are exzempt from! IS IT TRULY JUSTICE?

  12. jscottu
    March 29, 2012 at 12:56

    “…That was one of the reasons Madison and the Framers granted Congress an unlimited power to regulate interstate commerce, trusting that political leaders operating within the democratic process would recognize the needs of their time and apply this broad authority as necessary “to promote the general Welfare” of the American people…”

    Reading that paragraph told me everything I needed to know about Mr Parry’s qualifications. He is ignorant on this subject. “Promote the general welfare” and “provided for…the general welfare” both refer to the “welfare” of the FEDERAL GOVERNMENT…NOT “the people”. There has been much written on this subject by Madison and others.

    • March 29, 2012 at 13:44

      The depths of ignorance of this statement cannot be plumbed.

      The Commerce Clause states:

      “The Congress shall have power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

      There is no qualification of this power. It is one of the powers subordinate to the need of the Congress to provide for the general welfare of the people *through their government* (and hence constrained by the powers of government rather than the broader human rights of The People). In other words, the Commerce Clause says exactly what Robert Parry says it does.

      And, yes, Madison does say a few things about it. Quoting Wikipedia:

      “The two primary authors of The Federalist Papers set forth two separate, conflicting interpretations:

      James Madison advocated for the ratification of the Constitution in The Federalist and at the Virginia ratifying convention upon a narrow construction of the clause, asserting that spending must be at least tangentially tied to one of the other specifically enumerated powers, such as regulating interstate or foreign commerce, or providing for the military, as the General Welfare Clause is not a specific grant of power, but a statement of purpose qualifying the power to tax. (and it then describes Hamilton’s broader interpretation)”

      Madison’s narrow construction still is perfectly consistent with Parry’s writing.

      So, Madison did talk about the general welfare… just not what jscottu thinks by failing to understand that, ultimately, the government is us.

    • claudsam
      March 29, 2012 at 14:04

      I’ll pose the question I posed above — where in the text of the Constitution do you see a limit on Congress’s authority to regulate interstate commerce? Please cite either the language from the Constitution or a case precedent.

      I’ll give you a hint — there isn’t one. The Commerce Clause gives Congress unqualified authority to regulate commerce — which means indeed that it can force you to act. If Congress passed a law tomorrow requiring that all Americans buy a bag of broccoli every week, there is absolutely nothing in the Constitution that would prevent it.

      If the Roberts Court strikes down the individual mandate, it will be imposing a totally new definition of the Commerce Clause, one that to my reading of the Commerce Clause would be unconstitutional.

      If you don’t like the Commerce Clause as written, there is a process for amending the Constitution. That process is not for the Supreme Court to rewrite the plain language of the Constitution. It’s for Congress and the states to amend the Constitution.

      You so-called strict constructionists are really funny. You love the Constitution except for the parts you don’t love.

      • Russ
        April 4, 2012 at 14:31

        The commerce clause gives the federal government the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

        That is the power to “regulate” the buying and selling that takes place between states. It was intended to give federal authorities the power to prevent trade wars and to settle disputes between trading partners.

        “Commerce” can not be regulated unless and until “commerce” takes place. The power to “regulate commerce” that is taking place is not the power to mandate that commerce must occur when and if it is not.

        The issue with the health care mandate is that “health care” is a service that will be used by every citizen at some point in their life and it is a part of commerce.

        Because every citizen will access the health care system, every citizen will engage in interstate commerce as it relates to health care. The “individual mandate” does not order citizens to engage in commerce that they otherwise would not engage in (which would be beyond the powers enumerated in the Constitution), it simply regulates how the commerce which WILL be engaged in will be paid for.

    • Gregory L Kruse
      March 29, 2012 at 14:50

      Promote the general welfare of the FEDERAL GOVERNMENT?

    • March 29, 2012 at 15:05

      Assault on democracy my big toe, this legislation is an attact on the Republic, we are not a democracy, you idiot, we are a Reppublic with a constitution that idiot liberals like you want to trash, you want the government telling all people how to live their lives. If it were the liverals way, you would lose anyway, cause you would not have the freedom you do today to write the crap you write, May God Bless you cause you need it. Richard

      • claudsam
        March 29, 2012 at 15:13


        You’re missing the point of the article. The Constitution clearly spells out that Congress has the authority to regulate commerce between the states. There are no constraints spelled out in the Constitution on this — except political constraints. If Congress passing a bill regulating Congress that people don’t like, get a new Congress and undo the bill.

        You want to rewrite the Constitution to say that Congress has the authority to regulate commerce, unless Richard objects.

      • lYNNE
        March 29, 2012 at 17:14

        Thanks for regurgitating the talk radio mantra, but the reality is the GOP policies are far more intrusive in all of our lives.
        Just because the lobbyists on talk radio and Fox tell you Democrats want big Govt over and over again does not make it true.
        Democrats want a smart, efficient Government that regulates industries that can cause harm to people, economy and environment.
        The GOP wants to tell us who we can love. Do to our own bodies. Make everyone believe in the same religion. Hate Muslims, gays, illegals,Obama, Govt, and even Public sector workers.
        The right has sold out to the 5 or 6 industries that own them. We are not a Republic any longer and if we follow the conservative agenda we will be a Theocratic Oligarchy. Tell me where that is in the constitution.
        One more thing. George W called the constitution “just a G.. D… piece of paper. Where were all you constitutionalsts then?

        • aaron
          March 29, 2012 at 20:22

          Smart efficient government? Really? So pass a bill that double the deficit, and puts money only in hands of the insurance companies, the big evil corporations you talk about. And bails out crappy car companies that the “public sector” workers have over priced them out of the market, if they built a product someone wanted they wouldn’t need to steal money from me, I would give it to them by buying their product! As far as the individual mandate even with the commerce clause which actually imposes taxes, not penalties such as the fine for not buying, that is how we got the social security tax. The truth is we already have universal health care, go to any public hospital they won’t refuse service, its against the law. Now if you want abortions and enhancements, yeah you will get refused unless its an emegency. Everyone is created equal its those that work hard that become better. Remember when you rob Peter (taxpayers) to pay Paul( lazy freeloaders, illegals) you’ll always have the support of Paul, and that my friends is the Liberal play book.

          • March 29, 2012 at 23:18

            Your refusal to buy health insurance means my insurance costs me a grand more a year than it should. How is that right? How about car insurance? You’re mandated to buy that too but since that has nothing to do with Obama, liberals or Democrats you haven’t been told to hate hate hate it.

            I agree, I resent paying big money for lousy insurance because that company has an incentive to deny care and overcharge because they are for PROFIT and fight tooth and nail with propaganda campaigns and support of the usual right wing congress critters, Democratic and Repuke.

            If we lived in a sane society we would have a single payer insurer like Medicare and its 3% overhead and wouldn’t need laws that try to keep insuarnce companies from completely ripping us off, and those provisions are going to go away with the ideologically insane “Justices” using the mandate to trash the whole law thus restoring the primacy of Big Insurance (a major cash cow for the ruling class btw) to rip us off, deny us care and otherwise pretty much play with our lives as if they meant nothing more than a handful of cash.

            I don’t expect a wingnut like yourself to understand these simple things, your mind is not your own, ruined as it is by a steady diet of talking points and hatred from the likes of Limbaugh and Fox. That’s a pity watching fools like you support the worst enemies this country has ever faced- its sociopathic .01% of the truly wealthy, those whose average incomes are over $20 million a year and whose water you and your ilk so pathetically carry.

            You make me effin’ sick. Go back to Freepeville, you made your handful of dimes for your ignorantly sick and twisted posts already, fool.

      • Zily Popygaj
        March 30, 2012 at 15:10

        Um, and what, Richard, do you think a Republic *is*?

        Before you go calling other people “idiots”, I suggest you learn that, under the broad heading of “democracy”, there are different types – one of which is direct democracy, and another of which is representative democracy. IF you bothered to read any of John Adam’s writings on the topic, you’d know that, by “republic”, he meant not only a nation ruled by laws rather than by individuals, but *also*, a representative democracy. Although there are a number of websites claiming that “our republic is not a democracy”, they, like you, have an incomplete understanding of the topic.

        If nothing else, if the US was not a democracy at all, as you claim, we would not vote for our representatives. However, we do – and, in fact, they are called “representatives” for a reason: they are elected to represent The People. The sovereign power resides in the People, not in a government that is separate from The People, with no participation by The People.

        These are some enlightening essays:
        although it might be better to begin at the beginning here:

      • Russ
        April 4, 2012 at 14:45

        Richard, people who can’t spell “Republic” and/or don’t know how to use a spellchecker should probably restrain themselves from calling others “idiot”.

        Besides, the use of personal attacks frequently reveals a lack of ability to utilize reason and logic and I’m sure you wouldn’t want to be mistaken for one of those poor unfortunate souls.

    • Gary Thomason
      March 29, 2012 at 17:02

      Since the groundbreaking days of Mr. Parry’s “Iran-Contra” reports, I was both comforted and appreciative of his great character and respect for the freedom of the press necessary to ensure a lasting Republic. Today read with a tinge of sadness that Mr. Parry’s views have turned Socialist spiced with a healthy dose of Communism… In that once a great man was asked after America claimed its independence and formed a constitutional REPUBLIC (not democracy)… “What do we have, now?” and the gentleman stated unequivocally, “Madam, you have a REPUBLIC if you can keep it.” Seems that we have lost it…to the ignorance of our teachers… our leaders our trusted news reporters.

      • Kathryn
        March 30, 2012 at 01:11

        Mr Parry ~ Gary Thomason just said you have turned socialist/communist. That you have gone to seed.
        When you can take the time to look up the deliverer of that quote Mr Thomason on the losing of the republic – yes it can be spelled in lower case – you may have something to lean towards. But you just went with lofty speech making here. So I think Mr. Parry can overlook you. I will too.

      • LordZontar
        March 30, 2012 at 01:46

        The right-wing mantra “it’s a REPUBLIC not a DEMOCRACY” overlooks the fact that the two terms are NOT mutually exclusive. The word “republic” derives from the Latin “res-publica” – “the public thing”. A republic is, at essence, a peoples’ government; a concept that is also at the core of the definition of democracy as a form of government. The only ignorance on display from Gary Thomason is the needless hairsplitting of the terms “republic” and “democracy” duly programmed into his brain via right-wingnut propaganda radio. A republic is a system of representative democracy but that does not at all exclude the concept that the peoples’ will is expressed through the vote and through their representatives or that they cannot exert influence. A republic is NOT a system by which the people only have a say at the ballot box and the rest of the time they’re just supposed to keep silent or to passively assent until the next time they’re permitted to vote, or that their wishes have no place in the lawmaking process or that they have no right to any expectation that a congress elected by them will pass laws for their benefit which they expressed a clear desire for. The general welfare is a primary duty of the Federal government, the reason it exists at all. Elsewise there is little point in having a republican form of government if it is not to be the vehicle for the collective will of the people. And the quote Gary cites is from Madison —who had no real dispute with Alexander Hamilton about the necessity of “energetic government” and not a passive one such as the failed Articles of Confederation, which right-wingers seem to confuse with the present constitution.

    • Ethan Allen
      March 29, 2012 at 18:12

      Indeed “jscottu”, “There has been much written on this subject by Madison and others.”, and you do not seem to have read much of it comprehensively.

    • Ashford
      March 30, 2012 at 10:38

      Well said jscottu.
      This author, Robert Parry is sadly mistaken. “eviscerate the Commerce Clause as part of a broader assault on the principles of representative democracy”????
      Congress has adulterated the meaning of “to regulate commerce” In the day of the founders, “to regulate” meant to make regular. Under the articles of confederation, there was no uniformity in sales of goods and services among the States. State A might charge a higher tax for lumber to State B than it did to State C.

      The intent was to correct the Articles of Confedearation and make commerce regular, free flowing among the several States. It was never intended to control everything sold.

      SO..”striking down “Obamacare,” it also would become the latest front in what looks to be a right-wing judicial war on democracy”
      So when did supporting individual liberty become a “war on democracy”?

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