Writing on the Double Yellow Line

Militant moderate, unwilling to concede any longer the terms of debate to the strident ideologues on the fringe. If you are a Democrat or a Republican, you're an ideologue. If you're a "moderate" who votes a nearly straight party-ticket, you're still an ideologue, but you at least have the decency to be ashamed of your ideology. ...and you're lying in the meantime.

Location: Illinois, United States

Saturday, April 07, 2012

Take the Fifth, Barry

Take the Fifth, Barry
©2012 Ross Williams

Barry Hussein, current President of the US, rose to prominence as a Community Organizer®, yes. But before that he was a Constitutional Law professor at Harvard. What I find most annoying about those who are Constitutional Law professors is how little they actually know about the Constitution. I’ve had occasion to describe the utter ignorance of several such twits in the last several months here. And Barry falls into that category himself.

Here’s the thing about the Constitution that most Constitutional Law professors, not to mention most Constitutional Law loyyers, as well as state and federal judges, fail and refuse to understand: it takes no special talent or knowledge to read the Constitution and figure out what it means. You don’t need a law degree – and frankly, a law degree usually only gets in the way.

The Constitution was written to be understood by semi-literate 18th century farmers. It was not written to need Joseph Smith’s magic glasses being worn by a legal shaman in order to divine its magical properties and nuance. When the Constitution is the supreme law of the land, then no law can be written, no rule prescribed, no policy enacted, and no edict ordained which contradicts it.


When the Constitution is a limitation of the powers of government, the upper limit on government, then the Constitution cannot be “interpreted” into being instead the government’s starting point allowing the government to do what it wants, when it wants, and just because it wants.


Which is what makes it all the more curious that Constitutional Law professor Barry Hussein, after the three days of Supreme Court hearing on Obamacare’s constitutionality, declared that while the Court has the final say, they need to “show deference” to the duly elected Congress on this matter. He said that failure to do so would be “unprecedented” “judicial activism”.

Excuse me? What would the Administration’s position be if Congress had, for example, passed a law requiring blacks to sit in the back of the bus, and the High Nine had declared that law an unconstitutional abrogation of Equal Protection? “Activist”? Would such a law require “deference”?

And yes, it is the same thing. Whether the legislature which passes laws is “duly elected” or not, their ability to do what We The People want – or in the case of Obamacare where popular support for the law was under 40% nationwide, what We The People do not want – is limited by the wording of the Constitution; unless the Constitution gives Congress the authority to legislate on a given topic, Congress can’t legislate on that topic. This isn’t difficult.

So what happens when Congress does legislate on a non-authorized topic? Can the Court say, “No, you can’t do that; you can’t make black people jump through hoops just because a majority of Americans are suspicious of them”? or is the Court required to accept the law on its face as the result of our holy democratic process, and ignore what we are actually allowed to do to each other, by inventing a desperate and disingenuous rationalization of why up is actually down?

As always, the answers to these and other probing questions is determined by which political party you lie down with. A Republican is very likely to view the Court overturning Obamacare as a proper response to a legislative overreach, while a Democrat is almost certain to see it as an “activist court” “legislating from the bench”. On the other hand, when the Court struck down the California referendum prohibiting gay marriage – the unquestionable Will of the People – Democrats were most likely to declare it the correct response to populist tyranny of the sort our Constitution was written to prevent, while Republicans were more likely to see it as an “activist court” “legislating from the bench”.

In truth, everyone’s partly right and everyone’s partly wrong ... except me. I am the only one I know of that is correct regardless of the legal issue under discussion. The Court was right to strike down the California referendum against gay marriage because Equal Protection isn’t limitable by mob rule; the Court will be right when it strikes down Obamacare because forcible inTRAstate commercialism is not a governmental authority, not even under the close-but-no-cigar inTERstate commerce clause. And if it doesn’t, the Court – as is often the case – will be wrong once again. The Constitution is not so hard to figure out that nine ninnies in black robes are needed to do it.

The Will of the People has no authority – through direct democracy, or by republican representation either one – to contravene the limitations of governance defined by our Constitution. We are not simply a democracy in this country. Democracy is, in its original form, little more than a posse, a mob of vigilantes with pitchforks and torches who demand to string up the local outcast for being unpopular.

A republic – if arrived at democratically – is often little more than the same mob of vigilantes once removed: pass the responsibility for lynching the outcast up to senior management. [If arrived at UNdemocratically, a republic is nothing more than a tool of the tyrant]. Both democracies and republics can abuse rights and vacuum up governmental power every bit as well as the basest of dictatorships can. ...and all three will cite Rule of Law as its excuse for doing so.

We are, instead, a constitutional democratic republic, with very clear and narrow limitations on the power of the government to boss its people around and we properly live under Rule of Liberty. The fact that the courts have failed to perform their jobs faithfully in tens of thousands of cases by turning the Constitution on its ear and rationalizing why up is down does not mean that their doing so is proper.

Even if Obamacare had been supported by more than 40% of Americans let alone the 50% that would have comprised a majority, it does not justify the Court allowing it to stand when the law’s requirements violate the Constitutional rules by which our country was defined to operate. Barry Hussein, the Constitutional Law professor, knows this, but he doesn’t seem to care.

If we don’t like the rules by which our country is defined to operate then we are free to change those rules, but we cannot simply pass laws which sidestep those rules as if they don’t exist. Barry Hussein, the Constitutional Law professor, knows this as well, but once again doesn’t seem to care.

A federal appeals court, hearing a legal motion made by Texas on yet another aspect of the disastrous Obamacare monstrosity which was being defended by Barry Hussein’s Justice Department, headed by Shyster General placeHolder, asked the Justice Department to please inform it what the Obama Administration thinks about the concept of Judicial Review. The judge[s] hearing the case were troubled by what seemed like an Executive Branch challenge to the authority of the Judicial Branch to check the power of the Legislative and Executive branches. This would be the most brazen and self-righteous challenge to the Judicial branch since Andrew Jackson overtly defied the Supreme Court’s ruling in favor of the Cherokee by saying, “That’s a fine ruling; now let’s see them enforce it.”

Jackson then ordered the Cherokee out of Georgia and forced them to walk all the way to Oklahoma ... just like the Court said he could not. It made all the papers, not to mention the history books, and has been uniformly frowned upon as an imperial abuse of Presidential power.

Abusing power is not wrong when it treats Indians like second class citizens, but acceptable when it does something the President believes is “good for the nation”. I’ll just remind us that forcing the Cherokee out of Georgia was viewed as “good for the nation” at the time it happened, as well. Abusing power is wrong, period, because it is an abuse of power.

Passing laws that exceed the power limits imposed by our Constitution is an abuse of legislative power. Implementing laws that exceed the power limits imposed by our Constitution is an abuse of Executive power. Telling the Court that it has no authority to defy legislative will democratically elected to pass laws of excessive power and to implement laws of excessive power is a broadside challenge, and essentially declares an intent to subvert our form of government. It’s bad enough when TSA and EPA and all the rest do this by teaspoon increments; the smug arrogance of Barry Hussein’s Administration is astounding.

This is why when Shyster General placeHolder submits his three page single-spaced brief to the 5th Circuit Court of Appeals explaining the Administration’s official position on Judicial Review, he has three options:
1] Continue to defy the Separation of Powers in a Jacksonian fit of pique and go down in history as a spoiled brat willing to turn yet another democracy into a dictatorship;
2] Reverse course and indicate to his acolytes and adherents that he is not the infallible National Savior they all believe him to be; or
3] Claim the 5th Amendment right to refuse to provide evidence against himself.

Take the Fifth, Barry. You’re all about blazing new trails. What’s one more?


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