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John Napoleon Roberts
This has been a glorious week for the Supreme Court, as the majority brushes aside the rights of the states, the Constitution, and the rule of law. In the welter of revolutionary decisions, it is easy to overlook the six to three decision striking down the Stolen Valor Act.
The Act was a typical piece of American political silliness that allows politicians to pretend they are real patriots who care about our fighting girls and boys. Essentially, this federal law made it a crime to make false claims about receiving military medals and decorations. A California politician who told self-serving lies about his military service challenged his conviction on the grounds that he was being deprived of his free speech rights. The leftists on the court--led by the Republican justices Anthony Kennedy and John Roberts--agreed.
The three conservatives--Scalia, Thomas, and Alito--had little trouble shredding the argument. The dissenters are wasting their time. In the kingdom of lies, deceit is highest virtue. The Court has made it official: lying to deceive others is protected by law, particularly if the lies are crafted to serve the ambitions of politicians. Even the politicians who drafted the law must be somewhat gratified by the result.
What is clear from this week's whirlwind of SCOTUS decisions is that John Roberts has found his calling. Like those heroic Chief Justices of American history--from John Marshall to Earl Warren--Roberts is called upon to transform the foundations of the American republic.
When politicians begin to believe they have a "a rendez-vous with destiny," their subjects--or, rather their victims--are in trouble. Fans of Yes, Minister remember Jim Hacker's Churchillian moments, whenever the minister had to face a crisis. Unfortunately, we poor Americans are not faced with the comic talents of Paul Eddington but with the smiley-faced egomania of George W. Bush, Barack Obama, and, most recently, of Chief Justice John Roberts.
How any normal male can stand the Chief Justice's winning grin (or is it a smirk) is beyond my comprehension. It is the engaging smile--Bill Buckley had it, too, by the way--of the determined insider, the upwardly mobile confidence man who will sell out any principle (supposing he has one) for the sake of power. To mix a show biz metaphor, these people have the simpering leer of Leonardo dicaprio but the heart of Francis Urquhart.
(My poor readers, probably a dwindling number of fanatics, will think I do nothing but watch English television programs. But fear not! This, I promise, is the last pop culture reference in this column.)
I'll spare you my reflections on Roberts' endorsement of Obamacare. After his anti-constitutional ruling in the Arizona case, it was clear that he had come out of his closet, not precisely as a leftist or an activist but--and I think this is far more dangerous--as an opportunist. He has a lifetime job with, I understand, good benefits and more power than Nero or Caligula enjoyed. What's left to wish for? Why, love, approval, the sense of not only being on the right side of history but of making history. My gosh, he is thinking, it must be thrilling to be me.
In my youth I heard a parody of Emily Dickenson that comes to mind: "I'm Napoleon, who are you? Are you megalomaniac, too?)
I would not have proposed or even voted for the Stolen Valor Act, but political silliness is not unconstitutional. If it were, we would have to eliminate all presidential campaigns, TV commercials, and the editorial pages of the New York Times, Washington Post, and theWall Street Journal (just for starters). But when the Supreme Court of the United States declares lying--and this is a particularly repellant form of lying--a constitutional right under the First Amendment--it is time to give up the fiction of republican government.
In my growing horror I clutch at historical straws. This, at short notice, is the best I ca come up with. In 69 AD, after Nero was killed, the ensuing struggle for power ended happily with the triumph of a competent and restrained ruler, Vespasian. None of the contestants was a monster--though Otho had been a rake and Vitellius a small-minded glutton, but, on the whole, the Roman world could breathe a sigh of relief. They had suffered under a paranoid aristocrat, a homicidal comic, a pedantic buffoon, and an "amateur tenor" with a taste for blood. For some years, the world would be ruled by a sober competent administrator with a good sense of humor.
Flash forward several centuries to the contest that broke out after the assassination of Comodus. After the usual good guy (Pertinax) was eliminated, the only question on the table was which ruthless tough guy was goin the impose his dictatorship on the world. In the end it was the grim Septimius Severus who imposed his rotten dynasty, but it might just have been one of the others. Who cares? If one had a vote, it would be degrading to exercise it.
That is why my political creed remains what it has been since I first saw it on a bumper sticker in the 1970's:
DON'T VOTE! IT ONLY ENCOURAGES THEM.
We assume that a person like Chief Justice Roberts is not susceptible to outside pressure but lives in a Supreme Court cocoon where ideological arguments sway a justice one way or the other. There are stories out there about Robert's changing his vote at the last minute.....Scalia in his dissent refers to Ginsburg's dissent although she was in the majority on the Obamacare decision. I am not saying that someone had incriminating 'pictures' of Robert's but I believe he received visits or phone calls regarding his vote. Washington is a dangerous town to be on the 'wrong side of history' and would anyone be surprised if Robert's had a fatal heart incident given his medical history? Alternatively, he is a political animal with powerful mentors and supporters in the Wall Street GOP and given the vast amounts amounts of profit that will be accruing to the oligopolistic health insurance industry with the passage of Obamacare, could he resist a good arm twisting to change his vote? Follow the money..........
Dr. Fleming, I thoroughly enjoyed your broadcast this past Friday and appreciate you reading my question on the air. Unfortunately, there was no time for you to provide an answer and I was wondering if you would be so kind as to answer it in this forum. For the sake of your Daily Mail readers, the question is:
"Since the Supreme Court determined that Obama's mandate is a "tax", isn't it a serious crime that many un-insured citizens will soon be taxed for NOT buying something (health insurance)? What are the best ways to challenge this?"
Posted by: John Howell | 07/02/2012 at 12:07 AM
To me, the Stolen Valor Act highlights the absurdity of the constitutional prohibition on granting titles of nobility. Correct me if I'm wrong, but historically nobility has its origins in military honors, does it not? If that be the case - and I admit I have no idea how the court argued their decision - then perhaps it IS unconstitutional to restrict vapors to those who have received them at the government's behest. Just a thought.
Constitutionality aside, however, I'd like to just ask, what on Earth are we supposed to DO about health insurance in the U.S.? Obviously, it's not just about affordability as the Obama administration would have us believe: in real terms, the cost of medical care is, if my stats are up to date, about twice what it is in other developed nations. There are many reasons for this, granted. Still, doctors need to make a living but cannot in good deontological faith refuse to treat deadbeats who really need treatment, and the increasing numbers of uninsured probably don't help the fees for the rest of the population.
And isn't there an argument to be made for at least some protection of patrimony in the event that one's ascendant foolishly neglected to purchase health insurance? Yes, parents are the ones who are responsible for their children. But doesn't society at large have a role to play via legislation that rewards and encourages healthy parenting? Unril recently, succession and legitimacy laws regulated to varying degrees what parents could do with their own possessions, largely as a means of protecting their legitimate offspring from bad will but also to keep the sociopolitical landscape stable. Even today, a last will and testament can be contested if the departed is deemed to be "not of sound mind" (I.e., unduly unfair to his children).
Yes, forcing people to purchase something is a bit different, but still, in light of the bads that can arise from forsaking the purchase, is it all that unreasonable?
I'm with BEC. There was nothing new here. Social Security was billed as an insurance program that people had to purchase--the game was lost a long time ago, and this generation, for all its many faults, didn't launch a fraternal war to butcher each other and drop incendiary or atom bombs on civilians like the "Greatest" did.
Impeach Roberts, always of course.
Posted by: C Bowen | 07/01/2012 at 01:15 AM
Back to the videotape: "Keep your distance from the rich: no shame there, tyrants at home, they hate poverty, the mother of moderation." -PALLADAS (A.D. 4th century Greek writer)
At least I had some satisfaction, sticking it to a Obama supporter I know, who happens to have a high-deductable health insurance policy.
After I told him that under Obamacare, he will have to get a comprehensive policy, probably for about $800 a month or face the fine (tax) and he can kiss his $300 high-deductable policy goodbye, as it is not authorized by the government.
I could just see the dread in the skinflints eyes. "I don't think they can do that" he says. Well, I think the Supremes just did.
Let me repeat and make clearer my objection to the Court's ruling on the Stolen Valor Act. I said I opposed the silly law--though in the light of the Court's rulings in recent decades it is hard to see how it can be regarded as unconstitutional. My objection was to the argument that political lying was protected by the First Amendment. Why not strike down all truth-in-labeling and libel statutes? The Justice's response was that the liar in question had not received any material benefit. Once again, the only thing that matters in American public life is money. That is why no one will defend the rights of the states, the plain meaning of the Constitution, or any principle that in the short run does not make money for some significant person or part of the population.
I understand conservative outrage, but this is hardly a new expansion of federal power. Justice OWEN Roberts declared that Congress could tax and spend for any purpose, whether enumerated in the Constitution or not, way back in the 1930s (U.S. v. Butler). A product of the legal establishment like John Roberts is not going to have the audacity to cut back on already established federal power, even if it is the Constitutionally correct thing to do.
Posted by: BEC | 06/30/2012 at 02:18 AM
On the matter of the court's decision on the Stolen Valour Act—the Act is unconstitutional not because of the 1st Amendment, but because congress has power to legislate crimes only in the four instance the Constitution enumerates.
Save for instances of criminal conduct on federal property, where the federal government has exclusive legislative power, (U.S. CONST., Article 1, §8, CL. 17) and instances where the federal power over certain crimes (treason, counterfeiting, piracy (counterfeiting and piracy: U.S. CONST., Article 1, §8; treason: Article 3, §3) is constitutionally expressed, the power of criminal punishment exists only in the states. "Expressio unius est exclusion alterius": "The expression of one thing is the exclusion of another" (BLACK'S LAW DICTIONARY (1910) p. 468).
In discussing the matter of federal criminal jurisdiction, Judge St. George Tucker of Virginia wrote:
"And here we may remark by the way, the very guarded manner in which congress are vested with authority to legislate upon the subject of crimes, and misdemeanors. They are not entrusted with a general power over these subjects, but a few offences are selected from the great mass of crimes with which society may be infested, upon which, only, congress are authorised to prescribe the punishment, or define the offence. All felonies and offences committed upon land, in all cases not expressly enumerated, being reserved to the states respectively. From whence this corollary seems to follow. That all crimes cognizable by the federal courts (except such as are committed in places, the exclusive jurisdiction of which has been ceded to the federal government) must be previously defined, (except treason,) and the punishment thereof previously declared, by the federal legislature." (St. George Tucker, FOUNDERS' CONSTITUTION)
Posted by: Judge Bartley | 06/30/2012 at 01:05 AM
"How any normal male can stand the Chief Justice's winning grin (or is it a smirk) is beyond my comprehension. It is the engaging smile--Bill Buckley had it, too, by the way--of the determined insider, the upwardly mobile confidence man who will sell out any principle (supposing he has one) for the sake of power. To mix a show biz metaphor, these people have the simpering leer of Leonardo dicaprio but the heart of Francis Urquhart."
My father, an earthy man whose wisdom waxes as I age, warned me about men with a silly grin, particularly if the grin resemble that of a jackass eating briars. My father's advice has proved itself at least a score of times in my life. Judge Roberts indeed has one of those grins.
Posted by: robert m. peters | 06/30/2012 at 12:33 AM
I know you have not spoken of the "merits" of the Roberts opinion on ObamaCare, but here's why the opinion was wrong:
Chief Justice John Roberts and the Affordable Health Care Act: Both Anathema to the Constitution:
"In his White House memoir, 'Courage and Consequence,' Karl Rove recalls being the lone non-lawyer among the group of George W. Bush aides who initially interviewed John Roberts for the Supreme Court in 2005. Rove asked Roberts to go back in history to name the justice whom he most revered. Roberts' answer, Robert Jackson, intrigued and reassured Rove. When appointed in 1941, Jackson was serving as Franklin Roosevelt's attorney general and had been expected to be a pro-New Deal rubber-stamp on the court. But, as Rove put it, Jackson 'instead demonstrated a fidelity to the Constitution that Roberts admired.'" So writes Walter Shapiro.
Jackson, it must be said, was mostly a rubber stamp for the New Deal. He was the author of the amazing Wickard v. Filburn, 317 U.S. 111 (1942), holding that home grown wheat that is all consumed on the farm is interstate commerce because it affects interstate commerce.
In the ObamaCare case, writing for the majority, Roberts, perhaps emulating his hero, held (from the syllabus pp. 3-4):
CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III-C, concluding that the individual mandate may be upheld as within Congress's power under the Taxing Clause.
"It is therefore necessary to turn to the Government's alternative argument: that the mandate may be upheld as within Congress's power to 'lay and collect Taxes.' Art. I, §8, cl. 1 [The General Welfare Clause]. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because 'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,' Hooper v. California, 155 U. S. 648, 657, the question is whether it is 'fairly possible' to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31-32. 4. Pp. 33- 44.
Despite Roberts embrace of the "general welfare' clause as a source of unlimited taxing power, the Founders regarded the clause not as a federal power but as a restraint on federal power. As Jefferson said and Madison agreed:
"[To construe the clause as providing a] distinct and independent power to do any act [congress] might please for the good of the Union . . . would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States . . . . Certainly no such universal power was intended to be given them. [The clause] was intended to lace [Congress] up strictly within the enumerated powers, and . . . without which, as means, those powers could not be carried into effect. (Emphasis added.)"
For more, please see THE GENERAL WELFARE CLAUSE: "How a Constitutional Restraint Was Transformed Into a Constitutional Power (adapted from my Chronicles article of about ten years ago).
Posted by: Judge Bartley | 06/29/2012 at 11:04 PM
The so called "liberal" justices on the Supreme Court are never questions marks. One can say with 100% certainty the way that they will vote on every major case.
No Democrat nomination to the Supreme Court has been seriously challenged since before Truman. Abe Fortas's elevation to chief justice was opposed (by Democrats and Republicans) because of his corruption, but the Republicans have never provided any sort of opposition on a Constitutional or philosophical basis.
Like all Republican promises, the GOP's incessant campaign rhetoric about the importance of electing Republicans, because they will put conservatives on the bench, is just a lie. Almost all of the worst justices of the last 100 years have been appointed by Republicans. When the Republicans do nominate a decent jurist, like Bork, they let him twist in the wind and be picked apart by the rabid Left, without providing any support.
The Republican Party's view of the Supreme Court is to never upset the delicate balance of at least five dedicated progressives, with no more than three that can be defined as conservative. Every time that a Souter, Warren, Burger, etc. is nominated by a Republican, there are always, fallbacks as to why they turn out to be committed Leftists, instead of what was promised. The two most-often-used excuses are: "that was the best we could do" and "he tricked us."
The reason for all of the above is that the Republican Party has never been a conservative party. The power base in the Republican Party never shifted to the South and West, like we were told and the "real conservatives" never wrested power from the "Rockefeller Republicans" in 1964. After twelve years of George Bush I and II this should be common knowledge. (In reality, we had twenty years of Bush, as most of Bush Sr.'s cronies ran the show during the Reagan administration.) The powerbase of the Republican Party still lies in the heart of the Deep North, where it has been from the beginning.
Posted by: M. Droney | 06/29/2012 at 07:56 PM
One good bit of American political wisdom deserves another, of the same vintage:
If voting could do any good, it would be illegal.
Posted by: Ray Olson | 06/29/2012 at 06:04 PM
The debt cycle collapse that we are descending into over the next five years will be a historical super crisis and turning point for the US. Will the country emerge from the crisis by renewing liberty and freedom, or emerge as a totalitarian collectivist State? I fear that the latter is most likely. With the shredding of the Constitution and the rule of the power and pleasure principles US society and polity have descended to the level of thuggery and lies. For the State and its sycophants the ends justify the means! And the State is ready to grab all the power it can in the next crisis.
I spent my whole life believing in American and Western civilization but near the end of my life I see it for what it is - deception and lies, propelled by its self-hatred, not worthy of its inheritance. The debasement of the US Constitution or of any good principle that we have inherited no longer surprises me. The West is on a crusade to debase any good principle still left standing.
Posted by: RogerSpenser | 06/29/2012 at 05:35 PM