HotAir has this piece today on a law professor who wants to exile the Supreme Court and have them tried and executed in absentia for their crimes against the state if they strike down Obamacare, no, wait, he just wants them impeached if they don’t tax you for existing:
Like conservatives, law professor David R. Dow thinks it’s disappointing that the Supreme Court vote on the constitutionality of the Obamacare individual mandate will likely fall along partisan lines — but his disappointment stems from his utter conviction that the individual mandate is constitutional.
Just to get this out of the way… weird:
Jefferson believed Supreme Court justices who undermine the principles of the Constitution ought to be impeached, and that wasn’t just idle talk. During his presidency, Jefferson led the effort to oust Justice Samuel Chase, arguing that Chase was improperly seizing power. The Senate acquitted Chase in 1805, and no Justice has been impeached since, but as the Supreme Court threatens to nullify the health-care law, Jefferson’s idea is worth revisiting.
Huh. That’s interesting.
President Thomas Jefferson, alarmed at the seizure of power by the judiciary through the claim of exclusive judicial review, led his party’s efforts to remove the Federalists from the bench. His allies in Congress had shortly after his inauguration repealed the Judiciary Act of 1801, abolishing the lower courts created by the legislation and terminating their Federalist judges despite lifetime appointments; Chase, two years after the repeal in May 1803, had denounced it in his charge to a Baltimoregrand jury, saying that it would “take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy[.]” Jefferson saw the attack as indubitable bad behavior and an opportunity to reduce the Federalist influence on the judiciary by impeaching Chase, launching the process from the White House when he wrote to Congressman Joseph Hopper Nicholson of Maryland asking: “Ought the seditious and official attack [by Chase] on the principles of our Constitution . . .to go unpunished?”
Virginia Congressman John Randolph of Roanoke took up the challenge and took charge of the impeachment. The House of Representatives served Chase with eight articles of impeachment in late 1804, one of which involved Chase’s handling of the trial of John Fries. Two more focused on his conduct in the political libel trial of James Callender. Four articles focused on procedural errors made during Chase’s adjudication of various matters, and an eighth was directed at his “intemperate and inflammatory … peculiarly indecent and unbecoming … highly unwarrantable … highly indecent” remarks while “charging” or authorizing a Baltimore grand jury. The Jeffersonian Republicans-controlled United States Senate began the impeachment trial of Chase in early 1805, with Vice President Aaron Burr presiding and Randolph leading the prosecution.
All the counts involved Chase’s work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The heart of the allegations was that political bias had led Chase to treat defendants and their counsel in a blatantly unfair manner. Chase’s defense lawyers called the prosecution a political effort by his Republican enemies. In answer to the articles of impeachment, Chase argued that all of his actions had been motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency.
The Senate voted to acquit Chase of all charges on March 1, 1805. He is the only U.S. Supreme Court justice to have been impeached.
Except Chase continued to serve on the court until 1811 when he died. And Jefferson’s intent was to remove Federalists from the bench. Y’know, Federalists – Hamilton types, who wanted greater centralized government power. Not what Dow is advocating, which is tampering with the court if they rule against greater fedgov power.
Ignoring that the purpose of the original impeachment was to limit federal power, and that progressives always hate SCOTUS when it blocks their absurdities, Dow goes on:
The problem with the current court is not merely that there is a good chance it will strike down a clearly constitutional law. The problem is that this decision would be the latest salvo in what seems to be a sustained effort on the part of the Roberts Court to return the country to the Gilded Age.
During that period—which ran from the years after of the Civil War to the start of the 20th century—wealth became highly concentrated and corporations came to dominate American business.
At the close of the Gilded Age, the U.S. infant mortality rate was around 10 percent—a number you find today in impoverished Central African nations. In some cities, it exceeded 30 percent. Women could not vote, and their lives were controlled by men. Blacks lived apart from whites and constituted an economic, social, and political underclass. Corporations exerted an unchecked and deleterious influence on the lives of workers.
All these ills were ultimately addressed by the federal government, but the strongest and most sustained resistance to fixing them came from the court. One exception was the great Justice Oliver Wendell Holmes, who argued that where economic regulations are at stake, judges must respect legislative decisions aimed at protecting society’s most vulnerable members. Our Constitution, Holmes famously wrote, does not enact social Darwinism. If the legislature acts to protect the poor and less powerful, its actions must be respected by the judicial branch.
Well why don’t we just mandate that everyone gets three hots and a cot? Oh, wait, because those three hots and a cot have to come from somewhere – they come from taxpayers. Mr. Dow, watch and learn:
Hey, look, Mr. Dow, you’re spouting Bullshit!
That idea doesn’t appear to hold much water with the current court. Justice Clarence Thomas, in particular, has a well-known affinity for the values of the Gilded Age. But he has quietly gone from being an outlier to being only one of five consistently regressive votes.
Regressive. Very clever. It’s a nice way to say that Clarence Thomas wants us to become a third world nation where 30 percent of babies die in childhood.
From two years ago on The Patriot Perspective in a piece titled Health Care – The Big Picture is Bureaucracy For Life, DEMOCRAT Grover Cleveland had this relevant quote:
“Federal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character. . . . “
He was talking about the federal government pulling funds for a natural disaster. There was a bill sent to him that was popular – one that taxed the backs of working people across the nation to give to a few unfortunate souls, but would’ve ultimately resulted in the nation constantly turning to fedgov for help, undermining the states, undermining the individual, and destroying the national character. Individual charities, businesses, and organizations ultimately do better than government. We can see the difference between the effect of Hurricane Katrina in New Orleans and the flood in Nashville in 2010.
Wealth redistribution on different scales, but the same effect.
The pattern began with the court’s 2007 decision in Gonzales v. Carhart, a case involving a rarely used, late-term abortion procedure. In holding that the government can prohibit abortion even where a woman’s life or health is at risk, the court overturned a decision that was not yet 10 years old.
To justify the ruling, Justice Anthony Kennedy—an ostensibly staunch believer in individual liberty—explained that some women who might otherwise undergo it would come to regret their decision. Ah, fickle women! Since Roe v. Wade the abortion debate has always involved male-dominated legislatures enacting laws telling women what they can and cannot do. The Roberts Court, it seems, is similarly not averse to helping protect women from themselves.
Wait, Mr. Dow, weren’t you just complaining that Clarence Thomas wanted to kill babies? Now you’re in favor of killing babies? Please, make up your damned mind.
Oh, wait, you just say what you feel and then justify it later, don’t you, Mr. Dow? You don’t have any internal consistency, otherwise you’d have to question that just a hair over 50% of the time, abortion does kill a woman.
And then he hits another leftist talking point, the Citizens United decision:
…then came Citizens United, in which the court struck down a popularly supported, bipartisan effort to place limits on the ability of the wealthy to dominate political discourse. Income inequality is a fact of life in a capitalist system. But when it comes to choosing our elected representatives, the people are supposed to stand on equal footing. Your right to control your destiny by electing people who share your visions and values is not supposed to depend on the fatness of your wallet. But now, thanks to five justices, it does. In ruling that corporations have a First Amendment right that precludes Congress from regulating how much money they can spend to support political candidates or causes, the court propped up a regime where the voices of the wealthy drown out all the rest.
Corporations got the same rights that unions already had. Non-media corporations were allowed a little bit of access that media corporations do. Corporations, themselves, are made up of people, cooperating. The difference is that if Ford wants to support a candidate, they couldn’t… but NBC could choose who would get favorable interviews, who would get air time, who would get choice ads, etc. Now if Hanes wants to support Mitt Romney, or Colt wants to support Ron Paul, or AshleyMadison.com wants to support Newt Gingrich, they can.
Mr. Dow no doubt subscribes to the Tim Robbins view:
Mr. Dow is deserving of this fisking:
Each of these cases was decided by a 5-4 vote, along predictable and ideological lines. Each overturned comparatively recent precedent. Each paid obeisance to a 19th-century norm.
When a 5-4 is for a leftist progressive statist cause, it’s a conclusive victory. When it’s for freedom and liberty against the state, it tiny margin along ideological lines.
The 19th century norm was freedom. It wasn’t until the progressive era in the early 20th century that the US started leaning towards statism. There was corruption before, and there would be corruption after, but there wasn’t an interest in an overpowering state to dictate how people would live.
Dow lays down the stupid:
I will add only two points.
First, Congress’s authority in passing the law rests on an elementary syllogism: You don’t have to drive, but if you do, the government can make you buy insurance. The logical structure at work here is that if you are going to do something (drive, for example), the government can make you purchase a commercial product (insurance, for example), so long as it has a good reason for doing so (making sure you can pay for any damage you do). That logic is obviously satisfied in the health-care context. You are going to use medical care, so the government can make you buy insurance in order to make sure you can pay for it. Liberty, like every other human and constitutional right, is not absolute. Under some circumstances, it can be regulated.
Okay. Let’s try this one out. You don’t have to drive, but if you do, the government can make you buy car insurance. Okay, sure. Except, as has been stated here on The Patriot Perspective and elsewhere, you don’t have to drive. You also can drive on your private property without insurance. Ranch trucks often have expired tags because the ranchers don’t drive them on public roads. No big deal.
The logical structure at work is that if you are going to do something, the government can make you purchase a product to pay for damage you might incur with abuse of the priviledge of driving on public roads. Sure.
That logic, in a health care context, is so blatantly absurd that Dow should be taken to a first year philosophy class and schooled like the fool he’s showing himself to be.
What is health insuranc for? To offset the costs of critical illness or injury, or in the case of some health insurance plans (like car insurance defensive driver courses) to offset potential costs by encouraging good healthy activities (gym memberships, etc.) How do you get ill or injured? Those are conditions of living.
So, you don’t have to exist, but if you do, the government can make you buy insurance?
Dow digs deeper:
Which leads to the second point: critics of the health-care law say the only reason the rest of us have to pay for medical services used by people who have no money is that laws require hospitals to treat people who come in for emergencies regardless of their ability to pay. In other words, the critics say, the only reason there is a social cost—the only reason the syllogism works—is because of the underlying laws requiring hospitals to treat the poor.
Unlike silly examples involving broccoli and cell phones, that so-called “bootstrap” argument is sound. But here the critics drop their ideological mask as surely as the court dropped it in the Gonzales ruling. Their argument can be restated thusly: if you repeal laws requiring hospitals to treat the poor, you eliminate the constitutional basis for mandatory insurance coverage.
Um, not quite. Hospitals can view providing emergency services as the cost of doing business. They don’t turn away people who are injured on their doorstep, but neither will they do a quintuple bypass and emergency pancreatic cancer screening and removal on a hobo who stumbles in. If they hobo doesn’t care enough about his own life to work for something to help him in his old age, a hospital needn’t, and isn’t, responsible to send him to the Mayo Clinic for a decade’s worth of chemotherapy. Now, maybe he did work, and his life fell apart. Them’s the breaks. Maybe his family, community, or church will help him out. There may be charities that help him out, or even pharmaceutical companies that would offer him treatment that’s still in the approval process if he’s willing.
Mandating coverage just means that we all get the same treatment as the hobo off the street, not that the hobo gets better coverage.
You don’t have to pull the analytical thread of that reasoning very hard to see that it boils down to an argument for allowing the poor to die.
Wait, you mean there’s a way for the Supreme Court to keep people from dying? Well if that’s all it takes, hey, SCOTUS, I don’t want to die either! Rule that I can’t die!
In other words, the only people entitled to health care are the people who can afford it.
Yes, that’s exactly how it works. To borrow from Heinlein’s Starship Troopers: “Life? What ‘right’ to life has a man who is drowning in the Pacific? The ocean will not hearken to his cries.” If you work and can swim, if you work and can afford health care, you get it. Do we as a society want to save the drowning man? Yes. Do we try to? Yes. That’s why hospitals provide emergency care. If the drowning man keeps making stupid decisions trying to drown himself – in the context of health, if he’s anorexic or obese, a drug addict or an alcoholic, and doesn’t try to save himself, do we have to rehabilitate him? No. That’s his life to throw away, unless we’re into the realm of control… which is the progressive ideal.
The only people entitled to health care are the people who can afford it. People who can’t afford it, under this legislation, are using the government’s gun to take from those who can. If you don’t pay up and buy, you pay up in tax penalties. If you don’t pay the tax that’s being redistributed, you pay at the point of the IRS’s new 14″ shotguns.
Keep in mind the whole reason that health insurance companies exist is because the expenses behind really good health care are really high. Just like the costs for auto repair, or the costs if someone is injured in a car accident are very high, there’s a reason we get insurance – it’s to cover those unexpected, low-frequency by high-impact costs.
To take this all the way back to Samuel Chase, Jefferson was concerned about Federalist power. Arguing that the fedgov has an authority to tax you or jail you merely for existing, and that you owe someone else a debt merely for existing (or that if you’re poor enough, someone owes you), is absurd. The government is picking winners and losers based purely on politics, and the Supreme Court exists in part to prevent mob rule, and to provide adherence to the Constitution.
We can argue about whether President Jefferson was right to try to impeach Justice Chase. But there’s no question that he was right to say that impeachment is an option for justices who undermine constitutional values. There are other options, as well. We might amend the Constitution to establish judicial term limits. Or we might increase the number of justices to dilute the influence of its current members (though FDR could tell you how that turned out). In the end, however, it is the duty of the people to protect the Constitution from the court. Social progress cannot be held hostage by five unelected men.
There’s no undermining Constitutional values in protecting the one from the many. There’s no undermining by protecting in the few who will be subject to bills of attainder to pay for the many who vote by mob rule for redistribution.
There are other options, like the aforementioned Court-Packing scheme, meant to undermine the actual Constitution by trying runarounds. The Constitution is what it is, not what some progressive demands it is. Note also that when those five unelected men are department heads like EPA head Lisa Jackson, Interior Department Ken “Boot Stamping on a Human Face Forever” Salazar, Science and Technology Czar John “Sterilize the Water, Force Abortions” Holdren, and the like, it’s okay.
Social progress cannot be held hostage by five unelected men.
Dow, you just put yourself firmly in the camp of the enemies of actual freedom.
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
- William Pitt the Younger