Marbury v. Madison

All for freedom and of pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

The presidential election of 1800 was a 'rematch' of the intense debates that took place during the constitutional ratification process a dozen years prior. In one corner were the Federalists with their incumbent candidate John Adams. The Federalists, politically close to modern Big Government Democrats and Republicans, favored a broad reading of the Constitution in which a strong central government prevailed over weaker states.

Many people were not pleased with the power that the federal government had been assimilating under the Federalist regimes of Washington and Adams. High profile dissenters included Jefferson and Madison, who saw the country veering away from the original intent of the Constitution. Thus, the Democratic-Republican Party was born, with a Jefferson presidential ticket in play for the 1800 election.

Parenthetically, the Democratic-Republicans were popularly referred to as the Anti-Federalists as people resurrected the familiar label from the old Constitutional debates.

A hard fought election found the Anti-Federalists winning the day--not only of the presidency but also of control of Congress.

Wishing to maintain power through the judicial system, the lame duck Federalist Congress passed a law that created 42 additional federal judges in February 1801. Two days before he left office, Adams appointed Federalist judges to assume these newly created benches to 'pack the court' in his party's favor. These appointees became known as the 'Midnight Judges.'

William Marbury was one of those appointees. He was nominated to be Justice of the Peace in Washington DC, which was the lowest rank of all Adams appointees.

To extend the Federalist judicial power grab, John Marshall, who was Adams' secretary of state, took over as Chief Justice of the Supreme Court on March 3, 1801. The next day Marshall swore in Jefferson as the 3rd president of the United States.

When Jefferson was sworn in, several Midnight Judges, including Marbury, had yet to receive their official commissions. Jefferson swiftly moved to declare these commissions null and void--basically because the official paperwork never came through under the Adams administration. Jefferson's newly appointed secretary of state Madison was instructed not to hand over any more commissions to the Midnight Judges.

Marbury sued, and took his lawsuit directly to the Supreme Court, pursuant to the Judiciary Act of 1789. Marbury sought a writ of mandumus--a court order requiring a government official to carry out a nondiscretionary appointment. Stated differently, Marbury wanted a court order that forced Madison to hand over his commission.

The Supreme Court headed by Marshall pondered the case for two years. While it appeared that Marbury had earned a valid commission, the High Court was distrubed by the Judical Act of 1789 itself. The Act, i.e., Congress, gave the Supreme Court original jurisdiction for cases like Marbury's.

However, the Constitution did not. Constitutionally, original jurisdiction for the Supreme court is limited to "all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdication." (Article 3, Section 2)

The Court reasoned that, although the Judicial Act of 1789 gave the Supreme Court authority to afford a remedy to Marbury, the act of Congress authorizing the Court to hear the case was not grounded in the Constitution. The Court's authority was therefore null and void.

Coming from a unanimous opinion written by Chief Justice John Marshall, this was a remarkable ruling. Despite his Federalist urges to centralize power (and he would indeed satisfy those urges in later rulings), Marshall could not reasonably deny the limits to government power defined by the Constitution--at least in the case. As Marshall saw it, Congress is a creature created by the Constitution; Congress does not have the power to trump its creator.

Marbury v. Madison is the most important legal case in US history because it established the principle of judicial review. Judicial review is the power of the Supreme Court and all federal courts to examine statutes (and presidential behavior) and to declare them void if found to be inconsistent with the Constitution.

Marshall wrote: "it is the very essence of judicial duty to decide if two laws conflict, which shall supercede, and whether any laws conflict with the Constitution, which is superior and must prevail."

This is a position wholly consistent with Natural Law, upon which the Constitution is based.

It did, however, create a politically sticky issue. With Marbury, the High Court granted itself the authority to declare the will of the people (as represented by Congress) null and void if that will contradicts the Constitution. Positivists argue that the will of the people should prevail regardless of what the Constitution says. Moreover, they say, there is no such constitutionally enumerated power for the Court to rule on a statute's constitutionality.

As such, Marbury can be seen as a two edged sword. It permitted judges to invalidate laws that violated the natural rights of individuals. However, it also gave the Supreme Court incredible trumping power.

It wouldn't take power hungry politicians long to figure out how to employ that judicial trumping power in their favor.

Switch in Rhyme

The shadow's high on the darker side
Behind those doors, it's a wilder ride
You can make or break, you can win or lose
That's a chance you take, when the heat's on you
And the heat is on
--Glenn Frye

Although the ink was barely dry on the Constitution before politicians began challenging its basis in natural law, the Supreme Court largely upheld, with notable exceptions of course, its libertarian underpinnings for the better part of 150 years.

The Great Depression, however, increased pressure to scrap the idea of limited goverment in favor of central planning and control. FDR's New Deal was a primary source of this pressure. Because of their radical departure from limited government precedents, New Deal laws like the National Industrial Recovery Act soon found their way before the Supreme Court.

Of the justices sitting on the Court at the time, four of them consistently opposed New Deal legislation. Justices Butler, McReynolds, Sutherland, and Van Devanter became known as The Four Horsemen.

The chief swing voter on the Court was Justice Owen Roberts. In early New Deal cases, Roberts typically sided with the Horsemen, thereby striking down much of FDRs program.

This frustrated FDR to no end. In fact, the president went so far as to propose that he should be able to name additional justices to the Court in order to 'lighten the justices' workload.' Although even FDR staffers thought his 'court packing' scheme went too far, pressure was increasing on the Court to bend to the progressive will.

In 1937 the Supreme Court court ruled on West Coast Hotel v Parrish. The case questioned the constitutionality of minimum wage legislation. In previous rulings, the Court had largely invalided such legislation. One year earlier, in fact, Roberts had joined the Four Horsemen in striking down a similar piece of minimum wage legislation in Morehead v Tipaldo.

This time around, however, Roberts switched sides, joining a majority in favor of minimum wage provisions.

Interestingly enough, FDR withdrew his formal court packing scheme at about the same time.

As such, Roberts' reversal has come to be known as "The Switch in Time that Saved Nine" in deference to the notion that external pressure swayed the Court.

After the Parrish, Roberts consistently sided with majorities that upheld New Deal laws and reversed previous rulings made on principles of limited government.

As the Four Horsemen retired, FDR replaced them with his own cronies to obtain a super majority and the Court commenced an activist binge unlike the country had seen before.

So here we are today. Another Justice Roberts does another historic switch as external pressure mounts to do so. Once again, the Court rules to expand government power over the individual.

As we recite the eerie rhyme of history.

Judicial Review and Liberty

And the men who spurred us on
Sit in judgment of all wrong
They decide and the shotgun sings the song
--The Who

Citizens of the United States, and the world for that matter, await the Supreme Court's decision on the legality of Obamacare--particularly as it relates to the mandate that individuals must purchase health insurance. The High Court's decision is expected tomorrow.

I am certainly hopeful that the Court strikes down as much of Obamacare as possible.

Regardless of the direction of tomorrow's ruling, however, let me be clear that employing the majority opinion of nine tenured-for-life lawyers to dictate legality is not the basis for the rule of law. It is the basis for discretionary rule by men.

We know this is how the current system works because of the political influence gained by being able to appoint justices to the bench. Judges are appointed who are perceived to be of like mind to the political party that controls the appointment. When a different regime takes control, then it proceeds to appoint judges biased toward other interests.

This is discretionary rule. Discretionary rule was what the Framers sought to avoid.

The rationale behind the Supreme Court's authority is 'judicial review.' Judicial review is not a power granted by the Constitution. Instead it was a power granted to the Supreme Court by, yep, the Court itself in the early 1800s.

If the Framers thought that the Supreme Court should rule on the constitutionality of laws, then they would have surely enumerated this power into Article Three of the Constitution. However, the Framers knew that actions of judges can be politically motivated, and authorizing a federal court to render judgment on the rightness of law would almost certainly deliver power into the hands of the bench and those who decide who sits on the bench.

Interestingly, many Antifederalist arguments were grounded in the thesis that the Constitution as written would permit interested judges to populate the federal bench, which over time would compromise liberty.

The Antifeds were right.

Judicial Activism

All for freedom and for pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

Perhaps sensing what growing numbers are sensing after last week's oral arguments, President Obama stated that a Supreme Court ruling that strikes down Obamacare would amount to judicial activism. This is an ironic statement coming from a president with a hefty interventionist record himself. When measured in terms of spending, debt, regulations, bailouts, willingness to go 'over the heads' of Congress, etc, it can be construed that this president approaches FDR in activist tendency.

It is true that President Obama is not the first to toss claims of judicial activism toward the Supremes. Claims of activist judges have been around since the early days of the republic, although they have been escalating over the past 100 years.

However, it is unusual to hear activist claims muttered by a Democrat. More often than not, judicial activism is more likely an accusation of people who have opposed Supreme Court rulings that have favored liberal agendas.

What exactly is judicial activism? In simple terms, it is judges "taking the law into their own hands." The role of judges is to rule in accordance with the law. When judges rule in a manner that cannot be reasonably construed as lawful, then the ruling is activist in nature.

How one view 'law,' then, becomes central to evaluating the presence of judicial activism.

There are two primary views of what constitutes law. One view is that there is natural law that governs human action in the context of the functioning universe. This law gives rise to 'self-evident truths' as expressed by Jefferson, and certain axioms of nature and of human behavior that any social system must cope with. While not a perfect reflection, the Constitution is based upon a foundation of natural law.

A second view of law is the positivist view. Positivism proposes that there is no natural or moral basis to law. Instead, laws are 'posited' by human beings and are valid if they are enforceable. A popular expression of positivism is democracy. If a law can be enacted by majority vote, then it is legitimate.

The ink was barely dry on the ratified Constitution before interested parties sought to replace natural law with positivist law. The milestone case of Marbury v. Madison made it clear that the best path to implement positivist law was through the courts. Get a majority of Supremes to vote in favor of your proposal and, voila, your proposal becomes law--regardless of whether it aligns with natural law or not.

Thus, laws began to march to the Supreme Court for judicial review. Initially, and with a few notable exceptions, the Supreme Court defended the Constitution and natural law. Over time, however, presidential authority to appoint judges fostered the inevitability of a high court packed with interested positivists.

By the time of the New Deal, positivists were ruling in favor of laws, in cases such as Wickard v. Filburn, discarded by previous courts. The written opinions of assenting judges applied either a) tortured logic seeking constitutional justification for their verdicts, or b) arguments that this was a new era where the Constitution no longer applied.

This was judicial activism in its classic form. And cries of such could be heard from people who understood the consequences of moving away from natural law.

However, positivists literally ruled the day. From the early 1940s to the mid 1990s, not a single law passed by Congress was ruled unconstitutional by the Supreme Court.

Now, much of what passes as law is grounded in precedents legitimized by activist judges. Proponents of those laws, such President Obama, defend them on grounds that legal precedents validate them.

This is positivism at its finest. Because a similar law was deemed legitimate by previous group of judges, then that precedent justifies a the new law. And if that precedent is not upheld, then it is 'judicial activism.'

It should be readily apparent to the reasoned mind that precedents grounded in positivism are not valid precedents at all. Rather, they are but steps in a random walk away from freedom toward tyranny.

History Un-Lochnered

I must have dreamed a thousand dreams
Been haunted by a million screams
But I can hear the marching feet
They're moving into the street
--Genesis

For someone who is purportedly a constitutional scholar, President Obama continues to demonstrate how little he seems to know about constitutional case law. Last Monday he claimed that, should the Supreme Court repeal Obamacare, that it would amount to judicial activism.

When responding to a related question at a Tuesday press conference, the president sought to clarify his statement from the day before:

"Well, first of all, let me be very specific. Um, we have not seen a court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce. A law like that has not been overturned at least since Lochner, right? So we're going back to the Thirties, pre-New Deal."

First, let's get the plainest of details straight. The Thirties were not pre-New Deal, Mr President. FDR's New Deal programs, which essentially built on Hoover's interventionary programs, began in 1932.

Second, Lochner was decided in 1905. The case was Lochner v. New York. The title alone tells us that this case did not involve a law passed by Congress. Lochner involved a baker who was appealing a conviction over a state statute seeking to limit workers' hours. The Supreme Court overturned the conviction, citing that the NY law violated the principle of "liberty of contract," implicit in the due process clause of the Fourteenth Amendment.

Lochner was not a Commerce Clause issue. It is telling that Mr Obama links Lochner with the Commerce Clause, however. Big Govt politicians reflexively reach for the Commerce Clause as a loophole to justify any government intervention that even remotely touches trade.

Third, the Supreme Court was still actively overturning congressional legislation related to commerce in the 1930s. In A.L.A. Schechter Poultry Corporation vs the United States (1935), affectionately known as the "sick chicken case," the Supreme Court ruled that the National Industrial Recovery Act, one of the key components of FDR's early New Deal legislation, exceeded Congress's authority under the Commerce Clause.

It was not until FDR was able to pack the court in the late 1930's that the real era of judicial activism began.

Perhaps that's when President Obama's reputed constitutional expertise kicks in as well.

Jacobson's Ladder

Coming over the airwaves
The man says I'm overdue
Sing along, send some money
Join the chosen few
--Huey Lewis & the News

Those in favor of vaccination mandates believe that a convincing legal precedent exists for vaccination by command. Jacobson v. Massachusetts was a 1905 Supreme Court case that upheld a state law requiring inoculation for smallpox.

However, the central issue in the Jacobson case was whether a state legislature could enact compulsory public health laws. Today's vaccination mandates have not been the products of legislation. Rather, they have been issued by edict and executive order. Under the Guarantee Clause of the Constitution, only laws enacted by state legislature, not by gubernatorial commands, are lawful. 

Jacobson was also decided before a series of important rulings shaped jurisprudence regarding personal privacy and bodily integrity. 

Privacy doctrine was initially motivated by a dissent. In Olmstead v. United States (1928), the Supreme Court upheld the wiretapping of phone calls without a search warrant since, in the court's view, there was no expectation of privacy on phone calls (recall that back then there were party lines and manually operated switchboards). Justice Louis Brandeis disagreed, arguing that the framers of the Constitution "sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be left alone--the most comprehensive of rights and the right most valued by civilized men."

Brandeis' dissent resonated with a judicial minority until Griswold v. Connecticut (1965), when the Supreme Court recognized personal privacy as a fundamental liberty. Building on Brandeis' rationale, the court invalidated a state law that prohibited the use of contraceptives by married couples, ruling that the decision to use contraceptives was a private matter outside of government reach.

Eight years later, Roe v. Wade drove a stake though Jacobson's heart by upholding the privacy rights of people to decide which medical procedures to undergo (although Roe catastrophically failed to recognize similar rights of unborn children in the womb). 

State courts began to embrace parallel lines of judicial thought. In the case of In re Quinlan (1976), the Supreme Court of New Jersey upheld the right of the parents of Kathleen Ann Quinlan, her legal guardians, to deny their comatose daughter artificial life-sustaining procedures. Following Quinlan, all states have recognized the fundamental right of sick people, directly or through their guardians, to reject medication and medical procedures.

Today, both federal and state courts acknowledge that individuals can decide for themselves what medications to take or what medical procedures are right for them. Decision-makers have a natural, moral, and constitutional right over their bodies. Moreover, these decisions are made in privacy and are none of the government's business.

Those citing Jacobson as a legal basis for mandating vaccines are ignorant of the 20th century jurisprudence that contradicts them.

Snaps to Judge Nap for the history lesson.

Jefferson and Judicial Review

Cromwell: I have evidence that Sir Thomas, when he was a judge, accepted bribes.
Duke of Norfolk: What? Goddammit, he was the only judge since Cato who didn't accept bribes! When was there last a Chancellor whose possessions after three years in office totalled one hundred pounds and a gold chain?
--A Man for All Seasons

Interesting talk by Tom DiLorenzo on how the Constitution has been dismanteled over the years. I found the real nugget of this discussion at ~21 minutes on the legitimacy of judicial review.

Judicial review is a principle established from the Marbury v. Madison ruling. It states that the Supreme Court has the power to determine whether a law is constitutional or not. This ruling is typically held up among freedom lovers as wholly consistent with natural law.

Apparently, Thomas Jefferson did not see it that way. Citing an 1819 letter, DiLorenzo notes that Jefferson discounted the Supreme Court's claim of judicial review. Jefferson did not view the Supreme Court's opinion of constitutionality as any more legitimate than that of the legislative or executive branch. Or of the people in the states.

Jefferson viewed the Tenth Amendment as the cornerstone of the Constitution. The Tenth Amendment states that all powers not expressly delegated to the federal government are retained by the people and the states. DiLorenzo suggests that the Jeffersonian view was that it was insanity to rest the interpretation of law on the shoulders of 5 lawyers given lifetime high court appointments. Would the colonists fight a bloody revolution only to put the fate of liberty in the hands of five tenured people on the high court? Particularly when it was well known that courts throughout history had proven themselves generally incapable of remaining disinterested judges of the law?

This is an OUTSTANDING observation. I have long considered the framers' 'assumption' that the high court would provide a last and durable line of defense for the Constitution's limited government design as deeply flawed--with benefit of hindsight, of course.

But perhaps this is because that was not the framers' assumption at all. The Constitution itself does not grant the Supremene Court power to interpret constitutionality. The opinion of chief justice John Marshall (who subsequently demonstrated in his rulings to be partial to the Hamiltonian big government view) in Marbury v. Madison did that.

It can certainly be construed from the Constitution as written that all stakeholders had jurisdiction on what constituted constitutionality (!). And if people in various states felt that law was being unjustly interpreted by the federal government, then it was their right to walk away from the union.

Rather than depending on an interested court, which history suggested would be likely at some point, the people would retain the ultimate power themselves.

Yes, indeed.

Antonin Scalia

"The world must construe according to its wits. This court must construe according to the law."
--Sir Thomas More (A Man for All Seasons)

Justice Antonin Scalia died in his sleep early Saturday morning. He was 79. Scalia was appointed to the Court by President Reagan in 1986.

Until my 'awakening' to the notions of liberty and truth, I had little interest in Supreme Court rulings and could not name one sitting justice (or past one for that matter). This, of course, has changed as a search of these pages demonstrates.

I have consumed dozens of Supreme Court opinions during my journey. The writings of no contemporary justice has stood out more to me than Antonin Scalia's. Although he occasionally strayed from the mark, his opinions aligned closer to natural law as expressed by the Constitution than any other sitting justice.

Personally, I thought Scalia was at his best in his dissents, where he was not afraid to skewer his colleagues for their negligence in the law (see, for example, immigration and Obamacare). His 'SCOTUScare' dissent, aimed primarily at Chief Justice Roberts, is a classic screed on the consequences of judicial activism, interested courts, and rewriting law from the bench.

In 1840, Abel Park Upshur wrote that an interested court would be the icing on the cake that destroys the checks and balances designed by the Framers to protect liberty. With Justice Scalia's passing, the Supreme Court has lost much of what little checking and balancing capacity that it had left.

Fooled Again

And the parting on the left
Is now the parting on the right
And the beards have all grown longer overnight
--The Who

After discussing our flawed judicial process yesterday, I felt pretty much ready for any ruling rendered by the Supreme Court rendered on Obamacare today. But I must admit surprise. Am still chewing thru the 193 page opinion so my thinking is a work-in-process, but I'd like to share a few early thoughts here.

First, the gist of the ruling. The majority of the Court found the 'individual mandate' to be an invalid exercise of the Congress's power under the Commerce Clause and the Necessary and Proper Clause. This is a very positive finding that should have ended things right there. Indeed, many 'speed reading' members of the media anxious to score the scoop appeared to stop right there and began broadcasting that the Court had struck down the law.

The real eyebrow raiser followed, however. The four liberal judges and Chief Justice Roberts joined to declare the mandate as imposing a tax on those choosing to not buy health insurance, and concluded that the individual mandate should be unheld as within Congress's power under the Taxing Clause.

While I am not (yet) versed on all relevant Supreme Court case law, this ruling struck me as extraordinary when I initially read it--and hours later it still does. It appears to me that 'legislating from the bench' has taken on quite literal meaning here, as a majority of Supreme Court justices have endeavored to rewrite a statute rather than to interpret it. Moreover, it appears that this action places the power to tax in the hands of the judiciary.

The other portion of the ruling, and one that may be a 'sleeper' down the road in its effect, is that 7 of 9 judges concluded that the portion of Obamacare that requires states to expand Medicaid or face loss of Medicaid funding violates the Constitution (10th Amendment et al). It is not yet clear to me precisely what the ramifacations of this ruling might be, but in a vacuum this does affirm the principles of federalism. Can't help but think this might embolden some states to push back more strongly against federal laws that they feel are unjust.

Ron Paul was not surprised by the SC ruling, stating that "the Court has a dismal record when it comes to protecting liberty against unconstitutional excesses by Congress." He observes that everything that government does is in fact a 'mandate.' The broader issue is that "this compulsion implies the use of government force to those who refuse. The fundamental hallmark of a free society should be the rejection of force. In a free society, therefore, individuals could opt out of 'Obamacare' without paying a government tribute."

Attention will likely turn to this fall's election as a means for repealing the healthcare law. Perhaps the most positive outcome of today's ruling that it may motivate more people to engage in the process. Perhaps more people will consider the Tea Party tenet of limited government vis a vis our current position.

Sanctuary Cities

The traffic roars
And the sirens scream
You look at the faces
It's just like a dream
--Glenn Frey

Over the past couple of years, the term 'sanctuary cities' has been applied to cities whose political officials have refused to enforce federal immigration laws. Why have they done so? Sanctuary cities are almost exclusively under the control of Democrats. Because Democrats generally view voter blocks sympathetic to immigrant causes as valuable sources of political capital, their creation of sanctuaries for illegal immigrants can be seen as a thinly veiled strategy for winning votes.

Are sanctuary cities legal? As Judge Nap argues, yes. Local authorities are not obligated to help the feds with manpower or other resources to enforce federal law in local jurisdictions. The Supreme Court has ruled in previous cases that the federal government cannot force local officials to enforce federal law; the feds must enforce it themselves.

The Court's rationale is that such compulsion would violate the Guarantee Clause of the Constitution which guarantees a representative form of government in every state. If the feds interfered with the will of elected state officials on how to spend state resources (read: tax dollars), then representative government would be constitutionally impaired in those states.

To get around this legal inconvenience, the federal government has frequently provided funding to states that is contingent on state cooperation in particular matters. During the Reagan administration, for instance, the feds dangled dollars in front of states for interstate highway repairs under the condition that states reduce speed limits to 55 miles/hr. If states didn't want to lower their speed limits, then they were free to reject the funds. Subsequent ruling by the Supreme Court validated the legitimacy of what resembles a contract.

In other cases, however, the federal government has threatened to pull funding from states who refuse to comply with a federal demand that was not specified when the monies were first sent to the states. For example, in a move designed to force states to expand Medicaid under Obamacare, the federal government threatened to cut Medicaid funding to states who didn't do so. In one of the few Supreme Court rulings related to Obamacare that made sense, this initiative was ruled invalid by the Court.

Not only does such a practice by the federal government violate the principle of federalism, but it is not good contracting practice.

A similar situation has arisen in the context of the sanctuary cities. Under the Obama administration, funds were offered to sanctuary cities with no strings attached related to federal immigration law enforcement. Now, the Department of Justice under the Trump administration wants to impose such strings retroactively. As Judge Nap notes, that won't fly in the courts and any legal challenge on withholding Obama era funding should favor the sanctuary cities.

What the Trump administration can do is work with Congress on future funding packages that do require state cooperation in immigration law enforcement if states want those funds.

In the case of sanctuary cities we are witnessing principles of federalism and nullification in action--both of which are healthy and favorable for liberty. Democrats and Republicans, of course, tend to like these principles when they work in their political favor and detest them when they don't.

Ruling on Arizona Immigration Law

Let me in, immigration man
I won't toe you line today
I can't see it anyway
--Crosby & Nash

Yesterday the US Supreme Court voted 5-3 to strike down some portions of Arizona law seeking to deter illegal immigration. Mainstream media are widely reporting that this ruling upholds federal authority to set immigration policy and laws.

What isn't being widely reported is that, of the 14 sections that originally comprised the Arizona law, 11 still stand, and the High Court ruled against only a portion of the 12th section. Moreover, the portion of the section that cleared the Court was the right of police to question their immigration status--in and of itself likely to drive many illegal immigrants to leave Arizona.

It should also be noted that last year the Court cleared an earlier Arizona bill that requires employers to electronically verify the immigration status of potential employees.

As such, the Arizona law provides a Court-approved framework for other states that do not want to sit idly by while illegal immigrants help themselves to resources that states have reserved for their citizens.

That said, it is still disturbing that the Supreme Court struck down any provisions of Arizona SB 1070. In his dissenting opinion (begins on pdf p. 30), Justice Scalia argues that there is nothing unconstitutional in the provisions of SB 1070 under Court review.

The Constitution provides that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States" (Article IV, Section 2). However, if one state had particularly lax citizenship standards, then that state would serves as a gateway for unwanted aliens to obtain entry and resources in other states. Therefore, the federal government was given authority "to establish a uniform Rule of Naturalization...throughout the United States" (Article I, Section 8, Clause 4).

As long as states are not in violation of federal law, then the power to exclude unwanted aliens rests with the states. As Justice Scalia discusses, no provisions of SB 1070 violate federal law. Absent such violation, he concludes that Arizona is within its jurisdication.

Moreover, he observes that the primary impetus behind Arizona's legislation has been the inability, or unwillingess, of the Federal government to adequately protect the state's borders. Justice Scalia questions, "Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement - or, even worse, to the Executive's unwise targeting of that funding?"

We can confidently surmise how the Framers would answer that question...

Based on events over the past few weeks, it appears that federal priorities to allocate scarce immigration enforcement resources are not the problem here. The Obama administration recently proclaimed that it will exempt some 1.4 million illegal immigrants aged 30 or less from federal immigration law enforcement. Justice Scalia observes that we can confidently conclude that this is not a decision grounded in cost cutting, as the administrative cost of verifying exemption must necessarily be deducted from the cost of enforcement.

Justice Scalia does not mention this, but this situation raises the question of how a president can pick and choose among the laws that he is constitutionally obligated to execute. What President Obama appears to be engaging in is discretionary rule.

Scalia ends by asking the central question: "Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws?" He answers the question by filling the shoes of state attendees to the Constitutional Convention who, if a clause were written into Article 1 Section 8 that the President would obtain discretionary power over the immigration law enforcement, would surely have bailed from the convention.

The Justice concludes that Arizona has rightly moved to protect its sovereignty - not in contradiction of federal law, but in full compliance with it. "If securing its territory in this fashion is not within the power of Arizona, then we should cease referring to it as a sovereign State."

High Court of Interest

All for freedom and for pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

Captures the current situation well.

In our government framework, the last bastion against arbitrary rule under the principle of judicial review is the Supreme Court. Even if the executive and legislative branches fail to uphold their constitutional oaths, a high court that adheres to the rule of law protects liberty.

Of course, that is not what we have. As demonstrated by the SCOTUScare decision last week, we have an interested court willing to facilitate, rather than check, discretionary rule.

The last paragraph of Justice Scalia's dissenting opinion summarizes the predicament (p. 21):

"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation that they have performed ("penalty" means tax, "further [Medicaid] payments to the State" means only incremental Medicaid payments to the State, "established by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

175 years ago, Abel Parker Upshur wrote that an interested court would be the icing on the cake in destroying the system of checks and balances that protect liberty. He and the AntiFeds were spot on.

Ignore It

Jake Lo: What judge is going to believe that?
Agent Westey: My judge.
--Rapid Fire

After a district judge in Hawaii once again issued a temporary restraining order on President Donald Trump's revised travel ban, I heard several opinions this week suggesting that Trump should simply ignore the TRO and implement his executive order. If Trump would defy the absurd and ridiculously worded ruling of this judge, then he would be engaging in nullification.

In the context of constitutional law, nullification means ignoring a law or ruling deemed to be unconstitutional. Nullification was frequently employed prior to the Civil War. For example, it was used by states to combat oppressive federal laws such as the Sedition Act of 1798 and the Tariff of Abominations of 1824.

Should Trump choose to ignore the judge's TRO, then his nullification would challenge the legal principle of judicial review. Judicial review is a term concocted by Chief Justice John Marshall in the case of Marbury v. Madison. Judicial review is the power of the Supreme Court and all federal courts to examine statutes and presidential behavior, and to declare them void if found to be inconsistent with the Constitution. Of course, it is debatable whether contemporary judicial review regularly contemplates the constitutionality component.

The concept of judicial review carries some intuitive appeal. Courts should be independent, anti-democratic entities that preserve the constitutional rights of individuals when legislative and executive force intrudes. Viewed in this manner, the Courts are the last line of defense for liberty.

On the other hand, notable individuals such as Thomas Jefferson saw judicial review as an intrusion on liberty. In Jefferson's view, the Supreme Court's opinion on constitutionality should carry no greater weight than the legislative or executive branches, and in fact the Constitution does not grant the Court such interpretive authority. Moreover, Jefferson questioned, did it make sense that the people of the United States would fight a bloody revolution only to put the fate of liberty in the hands of nine (five, really) tenured-for-life judges?

Tom DiLorenzo suggests that we have become such a 'lawyereaucracy' today. Find judges friendly to your point of view and have them issue decrees that institutionalize it and put down dissent. DiLorenzo suggests nullification as a way to counter lawyereaucracy.

As an example of a president defying the Court's wishes, DiLorenzo offers Andew Jackson's veto of the recharter of the Second Bank of the United States. While Jackson's veto was in response to a Congressional bill (not a court order), Chief Justice John Marshall had himself vociferously opined that the central bank was constitutional. In his veto response, Jackson (about half way down) argues that it is the duty of Congress and the Executive to decide on the constitutionality of bills that they introduce and approve, and that the opinion of judges on this matter has no more authority over the other branches than the authority that the other branches have over the Court.

Jackson, further channeling his inner Jefferson, also states, "The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears the he will support it as he understands it, and not as it is understood by others."

DiLorenzo suggests that if Donald Trump does defy the district judge's TRO then he would be acting in accordance with his presidential role model.

Ninth Circuit Ruling

It's been too long since we took the time
No one's to blame
I know time flies so quickly
--John Lennon

I view high profile court decisions as an opportunity for improving my understanding of the law, particularly as it relates to the Constitution and principles of liberty. These pages include reflections on several cases, including Obamacare, the Arizona immigration case, and the Zimmerman murder trial. The Ninth Circuit's recent decision to uphold a temporary restraining order on President Trump's travel ban provides another such opportunity.

The Trump's travel ban order is interesting to me because, at a high level, it pits freedom against security, a topic that has occupied this blog since its founding.

It also involves the Ninth Circuit. The Ninth Circuit is affectionately known to some as 'the Ninth Circus' because of its reputation to deliver some of the most unconstitutional rulings of any appellate court in the country (measured in part by the high percentage of its rulings that have subsequently been overturned by the Supreme Court). As such, its opinions often provide a useful contrast against which to evaluate legal correctness.

Much of the interest surrounding this case is Trump's campaign characterization of his executive order as a 'Muslim ban.' Trump's detractors, and the legal plaintiffs in the case, claim that this proves intent of discrimination on religious grounds. While this may of concern from a human standpoint, what matters from a legal standpoint is what is stated in the executive order. Plainly, there is no bias written into the order in this regard. Religious belief is not a basis for travel restriction; country of origin is. And although the Muslim faith pervades the several countries included in the ban, Muslims traveling from other countries are unaffected. Fortunately, although Ninth Circuit judges questioned federal lawyers about Trump's rhetoric and commented about it in their ruling, they did not base their opinion on this issue.

Did the plaintiffs, e.g., the state of Washington, even have standing in this case? The principle of standing holds that only persons legally injured by government conduct can sue to challenge legality. The Ninth Circuit ruling held that states can challenge federal immigration law on grounds that state institutions, such an universities, would be affected by the absence of students or faculty affected by the travel ban. This argument seems weak, and is analogous to Wal-Mart suing the government for taxes imposed on its customers because they would have less money to spend in the store. Moreover, state institutions are not the regulated party in this case. Instead, the plaintiffs are suing to block the enforcement of an executive order against other people, a situation for which there is little precedent.

A primary argument made by the plaintiffs is that the executive order violates due process rights of affected aliens. This is problematic for several reasons. One is that the president has been granted plenary authority by both the Constitution and by Congress under the Immigration and Naturalization Act (INA) to decide that aliens from particular nations present national security risks. Because they are unadmitted nonresidents, aliens have no constitutional right of entry into the United States.

The Ninth Circuit sidestepped this issue, arguing that aliens are being denied procedural due process in that they now have no 'notice or hearing' for making their case for entry. But aliens have no fewer procedural rights than they had under prior law. They can still apply for visas and protest cancellation of visas just as before. The executive order deals with substance, stating that aliens from several foreign countries will not be permitted to travel to the United States for a temporary period of time until security procedures are reviewed.

The Ninth Circuit spent several paragraphs explaining why the executive order might not be constitutional with respect to some groups, including green card holders, previously admitted aliens presently abroad, and even unlawful aliens now residing in the US. However, these groups represent a subset, perhaps even a small minority, of the scope of the executive order. Nonetheless, the law as written can be construed as incorrectly applying to some groups that are protected under the law.

The legal question is whether a law should be upheld when the scope, in terms of who is affected, has not been correctly specified. The court ruled, "Even though the TRO [the federal judge's block on the travel ban] may be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order."

I think the Ninth Circuit got this part right. Strike down a law (or uphold a restraining order) when it has been incorrectly specified. Don not try to recraft it from the bench. Parenthetically, recrafting it from the bench is precisely what the Roberts court did with Obamacare--not just once, but twice.

Since the appellate court decision, the Trump administration has signaled that they will not appeal the decision to the Supreme Court. This seems smart. Although it erred in much of its judgment, and it is questionable whether state plaintiffs in fact had legal standing to bring suit, the Ninth Circuit got its assessment of scope right.

In effect, the court has sent the executive order back to the president for a rewrite.

Shlaes' Forgotten Man

Meet the new boss
Same as the old boss
--The Who

After many starts and stops, finally finished Amity Shlaes' (2007) The Forgotten Man. The title is adopted from William Graham Sumner's 1883 essay about the individual who is robbed by the welfare state.

Rather than employing a purely economic approach (of which I have read quite a few), Shlaes views the Depression thru more of a narrative lens using a number of leading characters in the story. Thus, I became familiar with a number of people (e.g., Stuart Chase, Harold Ickes, David Lilenthal, Andrew Mellon, Raymond Moley, Rex Tugwell, Wendell Wilkie) that I previously knew little about.

Because of her approach, Shlaes' recount has a personal feel that works pretty well. She did her research, too. There are pages of notes and references although she does not employ superscripts to explicitly link her narrative to her sources.

The book consists of 15 chronologically arranged chapters. Each one has a primary theme although Shlaes is careful to insert other important events as the timeline unfolds.

Some of the highlights as they come to mind:

Calvin Coolidge was the closest we came in the 20th century to a 'hands off' president. While not perfect, he labored largely to get government out of the way of the people. On the other hand, his Commerce secretary Herbert Hoover was making a name for himself as a hands-on interventionist. Coolidge, observing the people's enthusiastic response to Hoover's handouts, decided not to run for re-election in 1928. Shlaes doesn't say this, but it is easy to posit that Coolidge's decision to bow out may have been one of the largest errors in judgment of the period. I doubt that Coolidge would have meddled anywhere close to the degree that Hoover did following the events of 1929. In turn, the entire dynamic of the 1930s may have been profoundly different had Coolidge won a second term.

Despite what mainstream history books imply, Hoover was far from a 'free marketer.' He constantly espoused that government should 'do more' to help the people. His actions place him in line with other Progressive presidents who dominated the office in the first half of the century.

Similar to Flynn (1954), Shlaes finds FDR to be more of an opportunistic politician than an ideologue. He would readily shift positions if he thought that it would earn him more votes. FDR's campaign themes demonstrate his opportunism: 1932 class warfare; 1936 building special interest groups and buying their votes; 1940 war leadership. His spontaneous inconsistency drove many of his staffers (e.g., Ray Moley) away.

Although FDR himself was not an ideologue, he populated his administration with people who possessed strong socialistic (a.k.a. 'progressive') ideologies. Progressive fascination with Stalin and Soviet Russia is something that we do not hear much about today. However, in the late 1920s/early 1930s, boatloads of Progressives, including many that wound up in FDRs administration, toured Russia and waxed poetic that this was the social/political model for the world.

FDR's staff, known as 'the brain trust' because of its weighting toward academics with little real world experience, used government force to change the nature of markets with its New Deal programs - much of it in the name of 'experimentation.' The hubris of this group - their sense that they knew better than citizenry - remains truly eye popping to this day.

Not all citizens took kindly to the experimentation of the brain trust, and it was not long before challenges to many New Deal programs began making their way thru the court system, with many winding up before the Supreme Court. The High Court, led by the Four Horsemen, struck down a number of early New Deal programs such as the NIRA, AAA, various minimum wage laws. Shlaes does a particularly good job of profiling the 'sick chicken' case of the Schechter brothers that wound up breaking the NRA.

That the Supreme Court was not falling in line with his New Deal initiative irritated FDR to no end. He publicly railed against the Court, and liberal commentators such as Pearson and Allen (1936) lambasted the justices using the Progressive party line that they were out of touch with the modern world. After his re-election in 1936, FDR proposed his court packing plan that would allow him to appoint more Supremes that shared his view. Many citizens were appalled; even his closest supporters cautioned him of overreach. After finding little support for his plan even among congressional Democrats, FDR withdrew his plan.

But he ultimately won the war. Swing justice Owen Roberts suddenly turned his hat around and began siding with leftists on the court. The Four Horsemen, all of them 70 yrs or older by 1936, began retiring, which enabled FDR to subsequently replace them with cronies such as Felix Frankfurter. The fix was then complete.

Shlaes dedicates a significant portion of her story to the TVA and the federal government's near takeover of the utilities sector. In the 1920s, electricity was a growth industry, with residences being wired for the first time. FDRs New Dealers clearly saw this sector as a major political opportunity. Using the Tennessee Valley Authority run by David Lilenthal as a pilot project, the federal government sought to demonstrate how it could help improve standard of living for commonfolk through the provision of 'cheap power.' Because government was essentially competing with private industry using tax payer funds, this put many utility company execs in the spotlight. One of these was Wendell Wilkie, who handled himself well enough in public debates on the subject to become the Republican presidential nominee in 1940. The TVA was complemented with farming projects and communes (e.g., Casa Grande) meant to demonstrate how centrally planned communities could provide benefits that competitive markets could not.

Shlaes provides compelling evidence that, despite the massive government intervention that took place first under Hoover and then under FDR, that the economic barely moved by the end of the 1930s. Many of New Deal programs were outright failures and didn't see the 1940s. Others did little to add long term value, indicated by the fact that nearly all jobs 'created' by the government were short term and when the money ran out, the jobs disappeared. Stated differently, any good coming from government supplied stimulus was temporary and unsustainable.

She astutely makes the point (although I thought she could have made it stronger), that a primary reason for the persistence of the Depression was lack of investment capital. There was not much in the way of savings that could fund productivity improvement projects. What little capital did exist either a) remained on the sidelines because of huge uncertainty among capitalists about what FDR was going to do next, b) was offset by massive government spending. On the margin, capital was being consumed. As we have discussed on these pages many times, this is a ticket for the Lower Standard of Living Express.

Unemployment and investment remained weak up until WWII. Indeed, the perverse lesson that hard core policymakers likely derive from the Depression is that war can be an effective way to jump start an economy - assuming that you wind up winning the war, of course.

One area area where Shlaes could have done more relates to her title. Sumner's Forgotten Man is the individual who pays at the point of a gun to subsidize welfare programs. I think this work would have benefited from more on-the-ground research of actual forgotten men during the 1930s. Yes, Shlaes touches on some high profile characters such as Andrew Mellon, but it would have been interesting had more research been dedicated to typical taxpayers and their thoughts and activity during the time.

Such an approach would have resulted in a work truer to its title.

Nonetheless, this book is a worthy read. The reader will experience many deja vu moments connecting characters, behaviors, and events from the 1930s to our present day situation.

Reference

Pearson, D. & Allen, R.S. 1936. The nine old men. Garden City, NY: Doubleday Doran.

Shlaes, A. 2007. The forgotten man: A new history of the Great Depression. New York: HarperCollins.

Penalties, Taxes, and Rewriting Law

There's something happening here
What it is ain't exactly clear
--Buffalo Springfield

In the Affordable Care Act (ACA), the 'individual mandate' requires people to purchase health insurance. If they do not purchase health insurance, then they must pay a penalty. Failure to pay the fine results in criminal prosecution.

This is how the statute was written and presented to the American people. When asked repeatedly about whether the individual mandate was really a tax, DC Democrats repeatedly denied it. President Obama famously did so himself on national television.

However, when arguing before the Supreme Court, federal government lawyers asked the justices to consider the argument that, indeed, the individual mandate was indeed a tax. The government's brief states, "the minimum coverage provision is independently authorized under Congress's taxing power."

Previous cases argued before the Supreme Court have established clear lines between taxes and penalties (Scalia et al dissenting, 18). A tax is an enforced contribution to provide for the support of the government. Taxes 'raise revenue' for government programs. A penalty is an exaction imposed by statute as punishment for an unlawful act.

Because previous statutes have occaisionally blurred the two concepts, previous Courts have sought criteria that guides distinguishing a penalty from a tax. "When an act 'adopts the criteria of wrongdoing' and then imposes a monetary penalty as the 'principal consequence on those who transgress its standard,' it creates a regulatory penalty, not a tax." (Scalia et al dissenting, 18-19)

The simple question then, is whether the exaction imposed by individual mandate provision is a penalty or a tax. Clearly, as demonstrated by Scalia et al dissenting, 19-21, the statute itself imposes a penalty. The statute itself calls the exaction a penalty at least 18 times throughout the Act.

The dissenters observe that Congress may have developed the ACA on the basis of taxing but it chose not to do so in this case. From Scalia et al dissenting, 18:

"...we cannot rewrite the statute to be what it is not. 'Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute...' or judicially rewriting it. In this case, there is no simple way, 'without doing violence to the fair meaning of the words used,' to escape what Congress has enacted: a mandate that individuals maintain minimum essential coverage, enforced by a penalty."

As we now know, Chief Justice Roberts labored to do otherwise (Roberts opinion, 31-44). By editing out the word 'penalty' and replacing it with the word 'tax,' the chief justice has rewritten law from the bench.

Roberts opined that judges should restrain from lawmaking since this is something that should be directly taken up between Congress and the people. However, by rewriting the statute in the form of a tax, he has done precisely this.

Most people understand that the primary reason why DC Dems did not slant the statute in the context of a tax is that taxes are politically unpopular with many Americans. A tax of the magnitude implied by the ACA may have made it generally unpalatable among the people during its development in 2009-2012. By waiting until after the law was passed and signed before declaring it a tax, Roberts has provided some measure of political cover for lawmakers.

Whether this political cover is effective or not remains to be seen. Plausibly, the American people will see through the process used here as one of gimmickry and subsequently reject its legitimacy. Moreover, Republican are already using the ruling to claim that Democrats duped people into supporting one of the largest tax increases on record. This could injure Democrats on the campaign trail.

In any event, it is hard to imagine a more straightforward example of judicial rewriting of law in the history of Supreme Court jurisprudence.

Textualism and Originalism

"I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos."
--Sir Thomas More (A Man for All Seasons)

In a tribute to his friend Antonin Scalia, Judge Nap notes as have these pages that Scalia was "the most aggressive and consistent defender on the Supreme Court of the primacy of the text of the Constitution in the post World War II era.

Prior to WWII, this approach was regularly observed in high court rulings. Opinions written by the "Four Horsemen," for example, can be interpreted in this manner. Once FDR was able to pack the court in his favor, however, adherence to the Constitution when judging matters of law became passe and nearly non-existent under some courts (e.g., the Warren regime).

Scalia's powerful arguments over the years helped turn the tide such that today even ideological opponents on the Supreme Court feel obligated to pay lip service to the Constitution as a backstop for legal decisions.

Theories of interpreting the Constitution according to the plain meaning of the words go by two names: textualism and originalism.

Textualism is grounded in the assertion that the Constitution means what it says. Because it says that it is the supreme law of the land, and that American judges take an oath to uphold it, then judges are bound by the text rather than interpreting it as they wish. Thus, "no law" means no law, "due process" mean fair process due to all, and constitutional guarantees are real guarantees.

If the text is ambiguous, then it is the duty of judges to ascertain the original meaning of the words that form the ambiguity. This is originalism. Originalism often requires a study of history but, thanks to the founders, the historical record is ample.

Rejecting this line of thinking opens a Pandora's Box of discretionary rule. Judges are permitted to interpret the Constitution in novel and creative ways according to their own ideologies and interests.

There are several reasons that we KNOW that textualism and originalism were intended by the framers. Federal judges were specified to have lifetime tenure because they were meant to be the anti-democratic part of central government. Their insulated, institutional role was to preserve constitutional norms, structures, and guarantees from interference by branches of government subject to popular election (and thus favor). It can be argued that the framers were naïve in their belief that federal judges could remain insulated from political influence and kept beyond reproach, but there seems little doubt that a grant of lifetime tenure was intended to preserve, rather than dismantle, the constitutional framework that the framers toiled over.

Inclusion of the constitutional amendment process also is consistent with textualism and originalism theory. If the supreme law of the land could be subjectively interpreted, then there would be no need for a meticulous amendment process that required supermajority votes for change. Interpreting law using a "living Constitution" approach or other discretionary means clearly negates the need for any amendment process as law can be legislated from the bench.

If constitutional laws need to be changed, then it is role of neither the legislative, executive, nor judicial branches to do so exclusively. Instead, the amendment process must be followed. Difficulty in changing the law in this fashion is demonstrated by the fact that so few amendments to the Constitution have been passed using this process over the past 200+ years.

Healthy distrust of government guided the framers' hands when crafting the supreme law of the land. The Constitution can easily be viewed as a straightjacket for government, one that the framers knew was necessary to restrain constant attempts at overreach. Distrust of government is a timeless, not an outdated, concept. The role of a properly functioning judicial branch is to advocate that distrust in defense of individual liberty.

Textualist and originalist approaches helped Justice Scalia play his jurist role well.

Roe Overturned

Always searching for the real thing
Living like it's far away
Just leave all the madness in yesterday
You're holding the key
When you believe it
--Michael McDonald

Yesterday the United States Supreme Court, in the case of Dobbs v Jackson Women's Health Org, overturned the controversial 1973 high court opinion of Roe v Wade--that abortion was a constitutional right. The 6-3 decision was split along party lines, although, as usual, the political animal Chief Justice John Roberts, while concurring in judgment, argued for a compromise that would have prohibited a clean break from Roe.

Dobbs is a worthy read. The institutional challenge facing the court was how to reverse a longstanding albeit controversial and politically charged precedent. The solution, of course, is to stick to the law--something that the Roe court failed to do. 

The primary opinion authored by Justice Alito and supplemented by Justices Thomas and Kavanaugh demonstrates how to go about righting a past judicial wrong. The court first reviews the standards by which 'liberty' as referenced in the Fourteenth Amendment protects particular rights. The central conclusion of this analysis is that the Constitution makes no express reference to the right to obtain an abortion. 

Next, the court considers whether abortion can be construed as an essential component of 'ordered liberty' as reflected by its grounding in the nation's history. The judicial term commonly associated with this analysis is 'substantive due process.' A review of pre-American common law as well as American law all the way up to Roe clearly does not protect a right to abortion. In fact, the law generally specified abortion as a criminal act--often on the level of a felony or manslaughter.

Finally, the court considers the stare decisis issues associated with overturning a legal precedent--particularly a big one like Roe. The court applies several tests: the nature of the previous error, the quality of reasoning, the workability of rules resulting from the previous judgment, effects on other areas of the law, and interests that relied upon the previous decision. It also considered the dissent's claim that overturning Roe would create considerable political consequences and damage the court's legitimacy (Chief Justice Roberts seems particularly sensitive to these types of arguments). The central conclusion: stare decisis does not prevent righting wrongs, no matter how controversial the reversal might be.

In overturning Roe, the court does not make abortion illegal. Instead, it returns the decision to the various states. There, the citizens and their elected representatives must decide to what extent abortion should be permitted, regulated, or prohibited.

As Justice Thomas suggested in his concurring opinion, Dobbs might serve as a template for re-considering other previous high court decisions of questionable legal quality.

Overreach Overturned Again

Forgotten lies aim to distract me
This mono mind must not connect
Purer nature will contain me
Free fall in air I will surpass
--The Fixx

Last week the Supreme Court overturned Roe v. Wade, which sent the question of whether abortions should be legal to the various states. Today, in the case of West Virginia v. EPA, the high court ruled that the Environmental Protection Agency was not specifically authorized by Congress to limit greenhouse gas emissions when the agency was established in 1970.

The court essentially sends the issue back to Congress. If it wants to enact sweeping regulations to curb greenhouse gas emissions, then Congress must do so through the legislative process. 

The ruling makes it more difficult for climate change activists to circumvent the constitutional law-making process.

In both of these cases, the Supreme Court strikes blows against overreach. In Roe, it was the court itself writing law. In West Virginia, it was the executive branch working through one of its agencies (although one could argue that it was the rogue administrative, or deep, state acting out its own agenda.

The court's decisions place responsibility for both issues with elected legislators and, ultimately, with the voters who elect them. 

This, of course, is consistent with the intent of our founding ancestors. 

Wickard v. Filburn

So true
Funny how it seems
Always in time
But never in line for dreams
--Spandau Ballet

Roscoe Filburn was an Ohio farmer who was growing wheat on a 12 acre parcel of his farm. He was not selling the wheat; he was growing it on his own land for personal consumption--for baking bread for his family and for feeding his chickens.

The federal government told Filburn to stop growing wheat, claiming that he was producing wheat in excess of the amount permitted under the Agricultural Adjustment Act of 1938. A previous version of the AAA had been ruled unconstitutional by a prior Supreme Court. However, emboldened by turnover in the Court beginning in 1938 that permitted FDR to handpick successors, the FDR administration was at it again.

Filburn sued, claiming that the federal government could not control what he did on his own land. The Commerce Clause granted the government no power in this case, Filburn argued, because no commercial and no interstate activity was taking place.

Incredibly (or perhaps not given that these were FDR's judges), the Supreme Court ruled against Filburn. The court ruled that if farmers were allowed to grow any amount of wheat that they wanted, then their actions in aggregate would affect wheat prices which would, in turn, affect interstate commerce.

Such an interpretation, of course, implies that government could extend regulatory power to no end. Which is precisely what has occured since. Parenthetically, the real issue here is the AAA's power to fix prices, which is totally outside the boundaries of the Constitution and of natural law.

The recently passed healthcare law is grounded on such a broad interpretation of the Commerce Clause. As this case will shortly be before the high court, the issue is whether the judges return to first principles of natural law.

If not, then our system careens farther off the rails.