Thoughts for July Fourth

By | July 4, 2013 | 0 Comments



In writing the majority opinion upholding ObamaCare, Chief Justice Roberts noted that he gave great deference to a statute enacted by Congress. In fact, he actually rewrote it, claiming it is a tax and therefore within the constitutional powers of Congress. He ignored the fact that backers of the law, including the president, repeatedly declared it is not a tax. Roberts also ignored the fact that the bill originated in the Senate, while revenue bills must originate in the House. But since Roberts declared that it is a tax, he could cast the deciding vote in the 5-4 opinion upholding ObamaCare. Roberts bent over backwards to show deference to Congress.

In the contrary, in writing the 5-4 majority opinion that in effect overturned Proposition 8, Roberts gave no deference at all to the voters of California, our most populous state, who enacted it. Instead, he denied them even the right to complain in court (“standing”) when a federal district court judge overturned what they had approved. The voters wanted the definition of marriage to remain the same as it has been in all societies since the beginning of history – that is, between a man and a woman. Too bad! The judge said no, and because of Roberts, the judge’s decision is final and unappealable.
Speaking of deference to lawmakers, consider this: ObamaCare covered roughly 2700 pages of dense legalese. Few if any of the senators and representatives who voted for it actually read it. Recall that then-Speaker Pelosi noted that we would have to pass the bill to find out what was in it. So who wrote it? Congressional staffers? Outside interests? Klingons? Who knows? Nevertheless, Chief Justice Roberts and the majority of the Court showed deference to the so-called “lawmakers,” who had only a vague notion of the law they were making.
On the other hand, Prop. 8 consisted of precisely one sentence: “Only marriage between a man and a woman is valid or recognized in California.” This simple concept is understandable by anyone of even limited intelligence. And it was approved by over 52% of California voters, a larger margin of victory than Barack Obama achieved in either national election.
In short, members of Congress voting for an incredibly complex bill they had not read received great deference. But citizens voting for a clear, one-sentence initiative received only contempt. That really says it all.
If my vote is thrown out because I belong to some minority group, I can seek redress in court. But if the votes of all Californians – including mine – are thrown out, we can’t go to court. We have no “standing” because we weren’t specifically injured by same-sex marriage. Maybe not, but we were specifically injured because our votes were thrown out. That is so obvious a point that even the Supreme Court of the United States should be able see it. But apparently it is so clear-cut a point that only “common” people like me can see it.
Perhaps law school and years of legal experience train one to see the complex but to ignore the straightforward. Perhaps the Supreme Court should include one non-lawyer, just as many state medical boards include one non-physician. Nearsightedness and a narrow focus may be useful in a watchmaker, but they can be dangerous in a public official. Perhaps a non-lawyer could add a broader view, one that includes practical considerations. Imaginative theories and clever abstractions may bring high marks in a law-school seminar. But in the real world, they can cause serious trouble.
Disenfranchising the voters of an entire state is depressing at best – and infuriating at worst. It is rumored that Roberts voted to uphold ObamaCare because he did not want the Supreme Court to be seen as depriving people of health care. But he had no scruples about being seen as depriving people of their vote. Nevertheless, the “right” to government-run health care is a recent invention. The right to vote is fundamental to a free nation, a right that antedates the Constitution by centuries. It is a massive understatement to note that the Court got its priorities wrong.
We Californians passed an initiative statute defining marriage as between one man and one woman. The state Supreme Court threw it out as violating the California Constitution. Then we passed the same measure again, but now as an initiative amendment to the California Constitution.
This time a federal judge threw it out as violating the U.S. Constitution. When the governor and state attorney general failed to carry out their oaths of office by refusing to defend Prop. 8 in court, a group of its backers and law professors stepped in to carry on the suit. And now the U.S. Supreme Court tells us, the voters, that we have no right to sue, so we should just shut up and do as we’re told.
In the case of ObamaCare, Roberts and the majority of the Court deferred to the lawmakers, Congress. But in the case of Prop. 8, Roberts and the majority of the Court disrespected and flouted the lawmakers, the people themselves. Yes, there are legalistic, technical reasons a constitutional-law professor could quote. But the bottom line is that the Supreme Court respects Congress but disrespects the American people.
And that is the crucial problem – a government that disrespects the “common” people and sees itself as superior to them; a government that believes only it knows what is good for the “common” people, so it has the power to shove its agenda down the people’s throats. Until that problem is resolved, all other national problems are secondary. Until that problem is resolved, the Declaration of Independence and the Constitution are, in effect, nice-sounding but fundamentally meaningless verbiage.
On July Fourth, while there is still time, let us consider this undoing of the American Revolution.


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