Category Archives: View

View 631 Monday, July 02, 2012

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

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

None of that matters.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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View 631 Sunday, July 01, 2012

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

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

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

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

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

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

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

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

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

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

View 630 Friday, June 29, 2012

Madison and Chief Justice Roberts

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

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

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

This leads to a Constitutional crisis.

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

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

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

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

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

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

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

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

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

View 630 Thursday, June 28, 2012

Former Speaker Pelosi famously told us that we would have to pass the Obama Health Care Bill to find out what’s in it. Today we found out some of it:

It’s the biggest tax increase in the history of the nation. You may get out of paying that tax if you have health insurance. If that sounds more like a fine and a mandate than a tax you are not alone in that observation, but the US Supreme Court has said otherwise. The Obama Health Care Act complete with the individual mandates – and complete with the requirements for employers to provide health care or pay fines – is a legitimate tax under the Constitution, by a 5-4 majority that includes the Chief Justice.

It also makes the November election the starkest choice in the history of the nation.

There are two important points here, one Constitutional and one political, but they are so intertwined that the political issue is key.

The Constitutional issue is that a 5-4 decision of the Court has pretty well given Congress the power to do anything it likes in the guise of taxes. The power to tax is the power to destroy, and now anything involving government expenditures can be taxed, which means that inaction can be taxed, which means – well, you get the idea.

The political issue is that more than 60% of the country hates the Obama Health Care Act; that a large number of people on Medicare hate the Obama Health Care Act; and that this is a stark issue, no compromises. The Court by a 5-4 decision has said that the Obama Health Care Act can be implemented, and the President has made it clear that if re-elected he will appoint new Justices who will cement this enormous expansion of Federal Power. The Republican Candidate Designate has said that on his first day in office he will take all possible action to repeal the Obama Health Care Act.

The issue couldn’t be more clear. Whatever one thinks of Romney, he is (1) against the Obama Health Care Act, and (2) in favor of restricting the power of the federal government on the grounds of State’s Rights.

The good news is that a majority of the country is in favor of the Republican stand on these issues. The good news is that the votes are out there.

The message is clear: this is a ground game. There is no need for persuasion. The election will turn on how many votes the two sides in this issue can get to the polls, or get to send in some kind of vote by mail. You may expect to see bombardments of retirement homes, as political operatives try to get them to vote by mail – and others will try to get them to vote twice and negate themselves. You will see a great deal of ferment in organizing to get out the vote.

A repeat of 2010 will start the Republic on the way to recovery. A 5-4 decision can be reversed. There may even be enough sentiment in the nation to reverse it with a Constitutional Amendment. We have the means to do this. What we have done we can aspire to.

This is a maximum effort mission.

This came yesterday from an old friend on Roberts’ stand on the Arizona decision:

Or, it belatedly occurs to me, perhaps they’ve gotten to Roberts, in which case he’d be writing the majority opinion to uphold Obamacare tomorrow. Given how they passed the health care bill in the first place, does either of us really think they’d hesitate to use a handle on him if they had it?

I am nonplussed by Roberts’ stand in both these issues. It seems inconsistent with his previous decisions on federal power. I have no explanation. Rush Limbaugh says that Roberts has become a typical member of the Washington Establishment which has encouraged him to ‘grow’ in office. ‘Growth’ in Washington always means to join the Iron Law growth of government power and support the ever increasing perks of office holders.

Or, it may be, that he is more Machiavellian than anyone supposed: he has made it clear that the courts cannot save the people of the United States from the inexorable march of government toward a European style Road to Serfdom. It is now up to the people of the United States to save themselves. They can do that in November, and begin a march toward transparency and subsidiarity. The issue is stark and the mission is clear.

Late breaking news: funds for Romney are rolling in since the publication of the decision. And the news media are suddenly noting that this ruling makes the 2012 election very close to being a repeat of the 2010 election: which, of course, was a disaster for Democrats.

This is a maximum effort mission.

There comes a time when you cannot rely on the Courts to uphold the principles of self government. There comes a time when those who favor self government have no choice: they have to take part in governing. Whether Machiavellian or blackmailed, Chief Justice Roberts has made it clear: the courts cannot save the government from going where its elected officials intend to take it. Courts can delay, they can nit-pick, they can drag their feet, but they cannot forever stop the inevitable march down the Road to Serfdom when that is the intent of the political departments. Of course this has always been clear. It was pretty well stated in the Federalist Papers.

The President is even now saying that it is now time to move forward. He means move down the Road to Serfdom. The Courts will not help us here. If we want transparency, subsidiarity, limited government, this is a turning point: we cannot rely on the courts. We must win elections.

The good news is that the November 2012 election can be won, and won big. The good news is that the issues are stark, and the Republican Candidate Designate has made the issue clear. The good news is that 2010 may well be a harbinger of the future.

This is a maximum effort mission.