Reflections on July 4th

Today is July 4th, the day that we celebrate our independence.  Our Founders signed the Declaration of Independence on July 4th, pledging to give their lives, fortunes, and sacred honor to a cause that was far above their own individual wants and needs.  It's easy for us to remember only the fight for independence on this day.  But what was the ground of that fight?  To what did the Founders appeal to in effectuating their separation from Great Britain? It's important to note that as Lincoln said, the famous words of the Declaration's second paragraph talking of the self-evident truth that all men are created equal and that among the rights we hold by nature are life, liberty, and the pursuit of happiness were not necessary to declare us independent from the British.

What then did all of that language mean, if anything?

Let's take a minute and learn from Lincoln and Calvin Coolidge on the meaning and significance of the words our Founders shouted to the world in that hot, muggy summer of 1776.  Lincoln, who gave a speech (part of which is excerpted below) on July 10th, 1858 in response to a speech given by Stephen Douglas the night before, said the following about the Declaration and what it meant (and still means):

Now, it happens that we meet together once every year, sometime about the 4th of July, for some reason or other. These 4th of July gatherings I suppose have their uses. If you will indulge me, I will state what I suppose to be some of them.

We are now a mighty nation, we are thirty—or about thirty millions of people, and we own and inhabit about one-fifteenth part of the dry land of the whole earth. We run our memory back over the pages of history for about eighty-two years and we discover that we were then a very small people in point of numbers, vastly inferior to what we are now, with a vastly less extent of country,—with vastly less of everything we deem desirable among men,—we look upon the change as exceedingly advantageous to us and to our posterity, and we fix upon something that happened away back, as in some way or other being connected with this rise of prosperity. We find a race of men living in that day whom we claim as our fathers and grandfathers; they were iron men, they fought for the principle that they were contending for; and we understood that by what they then did it has followed that the degree of prosperity that we now enjoy has come to us. We hold this annual celebration to remind ourselves of all the good done in this process of time of how it was done and who did it, and how we are historically connected with it; and we go from these meetings in better humor with ourselves—we feel more attached the one to the other and more firmly bound to the country we inhabit. In every way we are better men in the age, and race, and country in which we live for these celebrations. But after we have done all this we have not yet reached the whole. There is something else connected with it. We have besides these men—descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe—German, Irish, French and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that "We hold these truths to be self-evident, that all men are created equal," and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, (loud and long continued applause) and so they are.

That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world. [Applause.]

And this is from Calvin Coolidge on the 150th anniversary of the Declaration:

When we come to examine the action of the Continental Congress in adopting the Declaration of Independence in the light of what was set out in that great document and in the light of succeeding events, we can not escape the conclusion that it had a much broader and deeper significance than a mere secession of territory and the establishment of a new nation. Events of that nature have been taking place since the dawn of history. One empire after another has arisen, only to crumble away as its constituent parts separated from each other and set up independent governments of their own. Such actions long ago became commonplace. They have occurred too often to hold the attention of the world and command the admiration and reverence of humanity. There is something beyond the establishment of a new nation, great as that event would be, in the Declaration of Independence which has ever since caused it to be regarded as one of the great charters that not only was to liberate America but was everywhere to ennoble humanity.

It was not because it was proposed to establish a new nation, but because it was proposed to establish a nation on new principles, that July 4, 1776, has come to be regarded as one of the greatest days in history. Great ideas do not burst upon the world unannounced. They are reached by a gradual development over a length of time usually proportionate to their importance. This is especially true of the principles laid down in the Declaration of Independence. Three very definite propositions were set out in its preamble regarding the nature of mankind and therefore of government. These were the doctrine that all men are created equal, that they are endowed with certain inalienable rights, and that therefore the source of the just powers of government must be derived from the consent of the governed.

If no one is to be accounted as born into a superior station, if there is to be no ruling class, and if all possess rights which can neither be bartered away nor taken from them by any earthly power, it follows as a matter of course that the practical authority of the Government has to rest on the consent of the governed. While these principles were not altogether new in political action, and were very far from new in political speculation, they had never been assembled before and declared in such a combination. But remarkable as this may be, it is not the chief distinction of the Declaration of Independence. The importance of political speculation is not to be under-estimated, as I shall presently disclose. Until the idea is developed and the plan made there can be no action.

It was the fact that our Declaration of Independence containing these immortal truths was the political action of a duly authorized and constituted representative public body in its sovereign capacity, supported by the force of general opinion and by the armies of Washington already in the field, which makes it the most important civil document in the world. It was not only the principles declared, but the fact that therewith a new nation was born which was to be founded upon those principles and which from that time forth in its development has actually maintained those principles, that makes this pronouncement an incomparable event in the history of government. It was an assertion that a people had arisen determined to make every necessary sacrifice for the support of these truths and by their practical application bring the War of Independence to a successful conclusion and adopt the Constitution of the United States with all that it has meant to civilization.

[...]

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers. 

Another Turncoat

Read this and weep:

Jonathan Krohn took the political world by storm at 2009’s Conservative Political Action Conference when, at just 13 years old, he delivered an impromptu rallying cry for conservatism that became a viral hit and had some pegging him as a future star of the Republican Party.

Now 17, Krohn — who went on to write a book, “Defining Conservatism,” that was blurbed by the likes of Newt Gingrich and Bill Bennett — still watches that speech from time to time, but it mostly makes him cringe because, well, he’s not a conservative anymore.

“I think it was naive,” Krohn now says of the speech. “It’s a 13-year-old kid saying stuff that he had heard for a long time.… I live in Georgia. We’re inundated with conservative talk in Georgia.… The speech was something that a 13-year-old does. You haven’t formed all your opinions. You’re really defeating yourself if you think you have all of your ideas in your head when you were 12 or 13. It’s impossible. You haven’t done enough.”

Krohn won’t go so far as to say he’s liberal, in part because his move away from conservatism was a move away from ideological boxes in general.

“I want to be Jonathan Krohn,” he said, “and I’m tired of being an ideology, and it’s not fun and it gets boring and it’s not who we are as individuals.”

But a quick rundown of his current political stances suggests a serious pendulum swing away from the right.

Gay marriage? In favor. Obamacare? “It’s a good idea.” Who would he vote for (if he could) in November? “Probably Barack Obama.” His favorite TV shows? “The Daily Show” and “The Colbert Report.” His favorite magazine? The New Yorker. And, perhaps telling of all, Krohn is enrolling this fall at a college not exactly known for its conservatism: New York University.

With John Roberts and now this, I don't think conservatism will be able to survive for much longer.  And of course, as everyone knows, once you reach 13, you never change any of your opinions for the rest of your life.

UPDATE:

Here is an excerpt from the second chapter of Krohn's book, which serves as an example of the great mind that conservatism has now lost: 

"Now that we have finished our discussion of old school conservatism and the constitution, let's move on to the next major aspect of the conservative belief system: the life issue. The life issue is near and dear to all conservatives. Does not life keep all of us alive? If it wasn't for life would we not surely be dead? Conservatives believe that life is something that everyone should have.

And obviously, as the Politico story implies, Krohn's conservative was conservatism at its most refined --  politically, morally, and intellectually.

Nordlinger on the Decision (the non-Lebron James Edition)

Jay Nordlinger has some thoughts on the Obamacare decision and the legacy of Chief Justice Roberts, among other things:

Let me try something out on you: People say, “Wait for the next election. Settle this thing — settle health care — in the political arena, where it belongs.” I have used this kind of language myself, about various issues. But, you know? Every branch has its duty. We have separation of powers in this country. We have checks and balances.

The executive doesn’t have carte blanche for four years; Congress doesn’t have carte blanche, for any period. We do not elect a czar, who has four years to do whatever he wants, while the rest of us say, “Relax: There’ll be an election in due course.”

Remember, Richard Nixon won 49 states in 1972. It was one of the biggest presidential blowouts in American history. Within two years, he was forced from office.

If a bill is unconstitutional, it is the duty of the Supreme Court to say so. Every branch has a role, every officer has a part to play.

On the idea that "elections have consequences":

It is conservative doctrine that special prosecutors, or independent counsel (or counsels), are bunk. I’m sure this doctrine is right. I have been mouthing anti-special-prosecutor arguments since the 1980s. I believe them.

But this is what I get stuck on: How can a Justice Department, for example, investigate itself? How can people who work for the attorney general properly investigate him?

As I said, I get stuck on that. People say, “Well, sort it out at the ballot box. There’s always another election.” True. But don’t you kind of have to obey the law before then? I mean, you can’t stick your tongue out at the law and say, “You’ll have your chance in the appropriate November,” can you?

This one is so true, it hurts:

Conservative, or Republican-appointed, justices are always crossing over to the liberal side. We have seen Roberts. You had Burger, O’Connor, Souter, others. You have Kennedy. Do the liberals ever cross over to the conservative side? Aren’t their votes pretty much in the bag, rock-solid predictable? Isn’t all the “swinging” action from the right, so to speak? Conservatives are always “surprising” us. Do liberals ever surprise?

And finally:

As a senator, Obama voted against Roberts’s confirmation, and against Alito’s. He could never have guessed that Roberts would throw him a lifeline. I couldn’t have guessed either.

With respect to Jay's final observation, in 2005 then-Senator Obama said during Roberts' confirmation  hearings that he would ultimately not vote to confirm him because "[Roberts] has far more often used his formidable skills on behalf of the strong in opposition to the weak."  But in the Obamacare case, the side that won was the big insurance companies.  Interesting.

The Switch in Time that Saved None

Jan Crawford at CBS News reports that Chief Justice Roberts sided with Justices Scalia, Kennedy, Thomas, and Alito until about a month before the majority opinion was due.  (The majority opinion was due on June 1st and the dissents were due on June 15th).  Here is the relevant portion:

Ironically, Justice Anthony Kennedy - believed by many conservatives to be the justice most likely to defect and vote for the law - led the effort to try to bring Roberts back to the fold.

"He was relentless," one source said of Kennedy's efforts. "He was very engaged in this."

But this time, Roberts held firm. And so the conservatives handed him their own message which, as one justice put it, essentially translated into, "You're on your own."

The conservatives refused to join any aspect of his opinion, including sections with which they agreed, such as his analysis imposing limits on Congress' power under the Commerce Clause, the sources said.

Instead, the four joined forces and crafted a highly unusual, unsigned joint dissent. They deliberately ignored Roberts' decision, the sources said, as if they were no longer even willing to engage with him in debate.

And what may have prompted the switch:

Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They've explained that they don't want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

There were countless news articles in May warning of damage to the Court - and to Roberts' reputation - if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, "wobbly," the sources said.

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation.

Some informed observers outside the Court flatly reject the idea that Roberts buckled to liberal pressure, or was stared down by the President. They instead believe that Roberts realized the historical consequences of a ruling striking down the landmark health care law. There was no doctrinal background for the Court to fall back on - nothing in prior Supreme Court cases - to say the individual mandate crossed a constitutional line.

The case raised entirely new issues of power. Never before had Congress tried to force Americans to buy a private product; as a result, never before had the Court ruled Congress lacked that power. It was completely uncharted waters.

To strike down the mandate as exceeding the Commerce Clause, the Court would have to craft a new theory, which could have opened it up to criticism that it reached out to declare the President' health care law unconstitutional.

Roberts was willing to draw that line, but in a way that decided future cases, and not the massive health care case.

Ultimately, as Crawford notes, no one knows truly why Roberts switched his vote.

I have come across many conservatives who have been trying to find out why Roberts "betrayed us."  I think the more plausible explanation is that he honestly believes in the doctrine he voiced at his confirmation hearings:  that the constitutionality of laws duly enacted by Congress should be given almost the benefit of the doubt.  The Court should take the position of "judicial modesty" and not overturn these laws for light and transient causes.

The problem then involves what goes today for conservative jurisprudence.  This is the larger and more important question.  Until we dive into this, this problem will continue to plague Republican appointees to the Supreme Court.

Sorting Through the Rubble

At Right Reason, John Eastman takes apart Chief Justice Roberts' majority opinion in very clear, precise language.  Among some of the highlights (and lowlights):

...the Chief manipulated the law to treat it as a tax, and then held that the taxing power is broad enough to uphold this law.

There are several problems with that. First, the President and leaders in Congress argued vociferously that the individual mandate was not a tax. Second, Congress did not impose a tax; it imposed a penalty for failure to comply with a regulatory mandate. Third, if it is a tax, the Anti-Injunction Act deprives the Court to even here the case. Fourth, the so-called "tax" did not originate in the House of Representatives, as Article I, Section 7 of the Constitution requires. It originated in the Senate. (Yes, I know: Technically the Senate stripped down a House bill that was languishing there, and then used that bill number as the vehicle for the Obamacare legislation. To say that the bill therefore "originated" in the House is a fraud.) Fifth, the power to tax is to provide for the "general welfare," not effectuate massive transfers of wealth from one group of citizens to another. And sixth, if it were a "tax," it would be a direct tax, but one that is not apportioned according to population, as required by Article I, Section 9, clause 4 of the Constitution.

Eastman points us to a post written by Rob Natelson who argues that Roberts missed a crucial distinction, which would have been evident to the Founders, on the question of taxes:

In Founding-Era parlance a “tax” is a measure adopted primarily for the production of revenue—that is, to raise funds “to pay the Debts and provide for the Common Defence and general Welfare of the United States.” While it is true that the Founders recognized that a bona fide revenue measure could serve the subsidiary goal of influencing behavior, the principal purpose had to be financial for it to qualify as a tax.

[...]

While there were some exceptions (for example, although taxes on ownership of capital and household goods were direct, excises on ownership of luxury goods were indirect) the usual line of distinction was that direct taxes were imposed on status, while indirect taxes were imposed on transactions. A tax that one must pay despite doing nothing is the quintessential direct tax.

Now, back to Eastman on an important point that I had not yet seen voiced:

The signature accomplishment of the Rehnquist Court was to restore the foundational idea that the Commerce power had limits, but it has been clear for some that that accomplishment is meaningless if Congress can simply shift to the Tax and Spend power to accomplish the same unconstitutional ends. 

Many people who lift up Roberts' opinion as conservative, that it finally constructs a limit to the Commerce Clause, have missed the boat.  I thought the Rhenquist Court already did that in U.S. v. Lopez, among other cases.  And that Court struck down the Gun Free School Zones Act in Lopez on the grounds that it violated the already expansive reading of the Commerce Clause established in that infamous case, Wickard v. Filburn.

Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito, argued that for Congress, compelling commerce in order to regulate it is a bridge too far.  But for Roberts, that's like constructing a concrete barrier a mile off of a cliff, when it actually was intended to stop cars from going over in the first place.  Saying that Congress doesn't have that kind of power is really not saying a whole lot in light of the fact that, as Roberts and the four liberal justices hold, the government's taxing power now becomes virtually unlimited.

The solace that can be taken from the circumstances we now find ourselves in:

Is there a silver lining? Yes. But it is not simply that this issue now becomes a rallying cry for those who would seek, following the next election, to repeal Obamacare. No; it must be more than that. It must be a repudiation so strong that the Court's decision itself is repudiated. In 1798, Congress passed the Alien & Sedition Acts, making it a crime to criticize the government. There was a huge outcry against the Acts, but the lower courts upheld them as constitutional. Thomas Jefferson waged his campaign for President in the Election of 1800 largely on repudiating those Acts. He was successful, but the Acts were not just repealed (or more accurately, left to expire). They were repudiated. Jefferson pardoned every one of the conscientious objectors who had been convicted under the Acts, and the judgment of history has been that the Court decisions holding the Acts constitutional were profoundly wrong. That is the exercise of true power by a truly sovereign people. That is the metal of which free men and women must be made if they are to remain free. That is now our charge, and our moment to take our place in the pantheon of American patriots, defenders of freedom, is now. Will we prove ourselves worthy of the task?

Democracy or Deception?

Something very important that I did not get to in my earlier post:  Chief Justice Roberts voices in a number of places in the majority opinion that the Supreme Court is not "consder[ing] whether the Act embodies sound policy."  He ends the opinion by stating that “the Court does not express any opinion on the wisdom of the Affordable Care Act” because “[u]nder the Constitution, that judgment is reserved to the people.”

That's fine but it's only fine if something very important is overlooked.   As Paul Mirengoff notes:

The legislature and the executive represented to the public that the mandate is not a tax. Ordinarily, the use of labels is not particularly relevant, and perhaps labels should not carry much weight here. However, when the labels affixed, and the framing used, by the people’s branches clearly are designed to make legislation palatable to the people, it can be argued that deference to democracy does not militate in favor of stretching to reject the labels and the framing through the “fairly possible” test. Here, the president and his fellow Democrats labeled and framed the exaction for not purchasing health insurance as a penalty because taxes are unpopular. 

Of course, the chief justice argued that the individual mandate is a tax, not a penalty as it had been called when it was brought before the American people.

In addition:

If the mandate had been struck down as a penalty, the people’s representatives could then try to enact it as a tax. This remedy would vindicate democracy because the mandate would then be enacted or rejected without the earlier deception, in the form and under the label that is required for it to pass constitutional muster. 

It's seems as though Roberts has taken for granted that what was passed by Congress and what came out of the Supreme Court was in essence the same thing.  It is not.  The arguments the Obama Administration and Democrats in Congress used to convince the American people that the law was needed (and they never really did convince the people in the first place) and what they eventually passed out of Congress is at odds with what the Supreme Court said what the law is.  Written law by definition cannot have two different meanings at the same time.  So in effect, the people, in one way or another, have been deceived.

A New Birth

I'm back and boy, did I pick some week to take a break.  So I guess the Supreme Court issued some important ruling on Thursday... .

I'm just starting to dive into the amount of material already written about NFIB v. Sebelius, otherwise known as the Obamacare decision, so it will probably take at least a few posts to begin to parse everything out.  But I am already taking away a few important things:

• In a 5-4 decision, Chief Justice Roberts, along with Justices Ginsberg, Breyer, Sotomayor, and Kagan, found that the individual mandate portion of the Patient Protection and Affordable Care Act, among other major provisions of the law, is constitutional because it emanates from Congress's taxing power under the Constitution (Article I, Sec. 8).   The only section struck down (by a 7-2 majority) was the federal government's plan to withhold Medicaid funding from the states if they choose not to comply with that plan. 

• Roberts, along with Justices Scalia, Kennedy, Thomas, and Alito -- Ginsburg issued a dissent, which was joined by the other three liberals, in which she argued that the individual mandate was constitutional, even under the Commerce and Necessary and Proper Clauses -- smashed the Left's Commerce Clause and Necessary and Proper Clause arguments.  But for Roberts and the majority, instead of the government being able to compel citizens to do commerce, they can now compel citizens to transfer money so that it can be taxed.  I have already read a number of conservatives jumping for joy with Roberts' demolition of the main liberal arguments in favor of Obamacare, but this truly is a distinction without a difference.  (As Tommy DeSano has written, "Every tax has at its core the prerequisite of a transfer of money or value. Thanks to the ObamaCare ruling, not transferring money or value may now be taxed, the precise opposite of what a tax has been in the history of jurisprudence.")

• Charles Krauthammer and George Will, along with numerous other conservative commentators, have tried their best to twist out some kind of originalist or conservative reading out of what Roberts did in his majority opinion, but this really misses the forest for the trees.  Roberts may have stopped a leaking hole in a dam with some chewing gum , but he also helped prepare the explosives at the base of that very same dam. 

•  Jonah Goldberg has rightly called  the liberal and conservative arguments that praise Roberts for his "apolitical" stance in siding with the liberal wing of the Court as BS:

 In other words, if five conservative justices rule according to their well-known convictions, it’s illegitimate. But if Roberts twists himself like an illustration in the Kama Sutra to find a way to uphold the law, then that amounts to “leadership.”

• Rich Lowry offers this devastating indictment of the effectual truth of what the Supreme Court did on Thursday:

 Obamacare as passed by Congress didn’t pass constitutional muster. Obamacare as passed by the Supreme Court didn’t pass Congress — and might not have passed Congress had it been presented for an up-or-down vote festooned with yet another tax.

 As Rich notes, the tax argument was something that the Obama Administration vociferously denied when selling the plan to the American people.  The Administration's lawyers only used this argument in mid-March of this year when they argued their case in front of the Supreme Court--of course only on the off days from their other argument that it was not a tax but a penalty.

• Trying to write the next Marbury v. Madison or not, Chief Justice Roberts has done great damage to the Constitution. 

This country may have just had a new birth with this decision (of course, we won't know more fully until after the elections in November).  But it still remains to be seen whether that birth is in freedom or something more akin to tyranny.