Judge Roberts’ decision forces Americans to stand on their own two feet — and that’s a good thing *UPDATED*

[UPDATE:  Since I wrote this post, there is now reason to believe that Roberts issued his opinion for the wrong reasons, not the right ones.  If I were to rewrite this post today, I would be less charitable to the man.  Nevertheless, putting aside Roberts’ motives, I stand by the substance of my post, which is that it forces conservatives to recognize that they cannot look to any branch of the government for succor from Big Government.]

Now that the first shock of the Roberts opinion is over, many conservatives are very busy digging through the pile of manure, confident that there’s a pony in there somewhere.  In this, we are distinct from our Progressive/Democrat counterparts, who would be busy rioting in the streets and sending death threats to John Roberts.

Having had more than 24 hours to come to terms with the decision, I’m beginning to think that there may indeed be a pony (or several ponies) hiding in there somewhere.  Moreover, I’m also realizing that Roberts, despite the apparent wackiness of his decision, stayed true to his constitutional roots.

As is always the case with me, I build my argument slowly, so please bear with me.  I’ll try to maintain some tension and excitement as I go.

Speaking of tension and excitement, my first point involves a screaming fight some colleagues of mine got into yesterday.  Because they’re nice folks, it wasn’t a vicious, personal, ad hominem fight.  They just kept making the same points over and over again, at ever-increasing volume.  They seem to have locked into the same line of reasoning that says that, if you speak really LOUDLY to someone who doesn’t understand English, you will make yourself understood.

The topic my friends were debating was whether heroin should be legal or not.  One side staunchly opposed legality because heroin is so dangerous; the other side equally staunchly advocated legalizing the drug, because it has benefits that go beyond the medicinal.  (I’ll take the other side’s word for it, since recreational heroin seems merely self-indulgent to me.)

What was fascinating was that both sides laid claim to the government to support their argument.  Those who feared heroin’s risks felt that only the government could protect Americans from the drug’s dangers.  Those who believed it should be legalized, after pointing out correctly that making heroin illegal doesn’t stop either its use or the societal downsides, believed that only government could manage heroin.  These people envisioned corner dispensaries, apparently along the line of the DMV.

At a facetious level, I have to agree with the guy who wants to put heroin in government hands.  Can you think of anything that would make heroin less appealing than having to deal with government functionaries a la your local DMV?  I can just see it now:  Long lines, rude clerks, poor quality service, mountainous bureaucracy and, to make it worse, you’ve got the joneses the whole time.

At a more serious level, both sides were right and both were wrong.  Making heroin illegal hasn’t stopped heroin use, just as it hasn’t stopped marijuana use, or underage drinking.  Putting it in government hands, however, is a recipe for corruption and still won’t stem abuse.  It will just make the government the pusher, which is a sleazy and awful idea.

Perhaps the smartest thing is to legalize heroin and put it into the free market.  Then, as we do with alcohol, we punish behaviors that stem from the abuse, such as driving under the influence or, less directly, any robberies, assaults, etc., that results from someone’s need for the drug or use of the drug. Let individuals make their choices.

Of course, some individuals aren’t in a position to make a choice.  They get the burdens, not the benefits.  Which leads me, inevitably, to Prohibition.  (Believe it or not, I’m still on track to a rip-roaring conclusion about Justice Roberts’ opinion.)

Prohibition was not the result of whacked out Church ladies, anxious to destroy all joy in the world.  Instead, it arose in response to an alcohol-soaked culture, one that saw working men instantly spending their paychecks at the local saloon.  “Father, dear Father, come home with me now,” wasn’t just a maudlin song; it was real life for tens of thousands of children, begging their father to leave the saloon and bring what little remained of his week’s pay home to the family.  Of course, when father came home, there was always the risk that he’d beat the living daylights out of Mama and the kids, but as long as he brought some money with him, what could you do?

The Dry Movement was a direct response to America’s sodden state.  But here’s the thing:  the reason Prohibition passed was because the culture changed so radically that a critical mass of Americans could force a change to the Constitution.  By 1920 — and this is something no one at the time realized — the paradigm shift in American culture was probably sufficient to change its drinking habits without coercive pressure from the federal government.  Drinking was no longer morally acceptable in many communities, which were already dry by 1920.  Local values controlled.  People who hated alcohol could move to a Dry town or they could agitate to change things within their own communities.

Once the government stepped in to control alcohol (and it was controlled, rather than completely prohibited, as certain religious or “medicinal” brews were still allowed), all Hell broke loose.  We became a nation of scofflaws, organized crime, and corrupt law enforcement.  Yes, drinking did continue to diminish, but it had already been diminishing before the Feds stepped in.  All that happened with government-control is that bad things happened too.

You can see an analogous situation with Johnson’s Great Society.  In the years leading to it, two things happened in America:  The Civil Rights movement, which focused on the serious wrongs done to black Americans, and which was a topic that dominated America’s intellectual airspace; and the rise of the black middle class, which happened behind the scenes as the culture changed.

Laws banning discrimination rightly addressed the Civil Rights crimes.  However, the Democrats added to the mix huge changes in welfare, i.e., Government-involvement in black lives.  As is so often the case with the government good intentions, the massive legislative intervention into American life — and, specifically, into black American’s lives — reversed black folk’s economic advancement.  If the government could just have stopped itself with leveling the playing field, it’s questionable whether today blacks would consistently rank among America’s poorest, least educated, and crime-ridden population.  The problem was that, in the 1960s, as in the 1920s, Americans, especially educated Americans, couldn’t conceive of an organic solution to a visible problem.  Government had to “fix” things.

Which, at long last, gets me back to health care and Justice Roberts’ decision.  (And you doubted that I would ever loop back to my main point.  Oh, ye of little faith!)  Roberts wrote the decision at the end of a 90 year continuum holding that Government fixes problems and the Supreme Court fixes Government.  This approach makes “We, the people” unnecessary.  Rather than elections being the corrective, the Court is the corrective — except that the Court’s make-up is controlled by the Government.  (Remember the Bork debacle?)

Roberts refused to play this game.  He slapped back the Democrats’ hands when it came to the Commerce Clause, telling them that the federal government cannot legislate inactivity.  And he held — quite correctly — that if there’s any possible way for the Court to salvage a law, it must do so.  His salvaging was to say that, this particular law, written in this particular way, with these particular controls over the people, can be salvaged by calling it a tax.  It’s an ugly decision, but probably a correct one.  And then he tossed the whole thing back to the American people.

I can just see Roberts’ thought-process (although he might have thought in more polite terms):  You idiots elected a Congress and president that used every kind of political chicanery known to man in order to pass the biggest tax in American history and one that, moreover, completely corrupts the free market system.  It’s not the Supreme Court’s responsibility to correct that kind of thing, provided that the judges can, as I did, find a smidgen of constitutionality in it.  There’s an election coming up in November.  Let’s hope you’ve wised up enough to figure out that my Supreme Court is returning power to “We, the people.”  We will not pull your chestnuts out of the fire.  We will not legislate from the bench.  We will construe things as narrowly as possible.  If you, the people, don’t like it, you, the people, elect different representatives.

In the short run, this is an enormously painful pile of manure for American conservatives.  In the long run (a run that, I hope, includes November 2012), if we Americans are smart and genuinely believe in our liberties, we’ll find so many ponies in that manure we’ll be able to have a pony parade right up to the steps of White House and both Houses of Congress.


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  • jj

    Nice try.  But this coming on top of Monday’s Arizona decision leaves me with Coulter’s 7/20/05 column.

  • Michael Adams

    Really good essay. It was as if you’d come over for coffee, and I certainly had a nice time. I always love to hear anyone discuss something about which they are actually knowledgeable.
    In re: Obamacare, one of the biggest ironies is that, with about fifteen million uninsured people in the country, that is, people who want or need health insurance but can not get because of income or health conditions, we could have covered all of them for about seventy five billion dollars, five thousand a head times fifteen. So now we are spending nearly two TRILLION and wrecking the greatest health care in the world. They plan to tax real estate transactions, and walkers and canes, and anything else that comes to mind. I could go on, but my grandsons are here, and I want to enjoy them in the reduced number of years I have remaining.

  • Wolf Howling

    A few comments.  One, in response to your post below, Roberts didn’t make the taxing power of Congress coextensive with the Commerce Clause, he expanded it beyond the permissible scope of the Commerce Clause.  There are limits on the Commerce Clause, there are now no limits on the power to tax, nor the scope of permissible bases for use of the taxing power.  True, in dicta – and thus not precedent – Roberts put a far far outer limit on the Commerce Clause.  That is but scant comfort given that he has made of the taxing power a new and more potent Frankenstein’s monster.  I truly wonder what, in the long run, our nation will come to resemble.  We can’t get much further afield from the original meaning of our Constitution and survive.

    Two, I am not inclined to give Roberts an inch on this.  His fundamental responsibility is to show fidelity to the Constitution, irrespective of where that leads him.  His vote on this can be seen, in the best of lights, as some sort of pragmatism.  The mandate is no more a tax designed to raise revenue than a pig is a unicorn.  Judicial activism, for whatever reason, including the advancement of conservative causes, is an abomination.  Roberts is just one more in a long line of jurists who present a clear and present danger to our nation.  Never, never again can we have a President nominate a stealth candidate to the Supreme Court.  

    Lastly, the pewter lining in this incredibly dark, rotating storm cloud is that, because the mandate is a tax, it is not subject to super-majority voting rules in the Senate.  It can be rescinded with a simple majority.  That is not necessarily true of the rest of the 2700 pages of excrement, which means Roberts has not only rewritten the Constitution, but he has placed our nation in a wholly untenable position where it will now be decades, if ever, before this monstrosity can be fully unwound.       

  • http://bookwormroom.com Bookworm

    Are you guys saying there are no ponies? :(

    I refuse to believe that for one simple — and completely visceral and illogical — reason, namely, the fact that I have to have enough hope left in me to get out of bed every morning. In any event, we’re stuck with this decision and must cope with it. 

  • lee

    Alas! I don’t trust that enough of the people will vote with any intelligence in their decision. Maybe I lived too long in Marin…. Whether Romney wins in November, I think we will still stuck with this monstrosity, because, well, Congress. (If “pro” is the opposite of “con,” what is the opposite of “progress?”) And there are too many districts who will vote the same damned fools back in just because it’s a DEMOCRAT. Marin would vote for Charles Manson, if he were running as a Democrat. And with leaders like Pelosi, the Dems have no principles.

  • jj

    The most interesting – and troublesome – thing to me remains the dissent.  Read the dissent, it’s trying to tell you something.  I write.  I do it a lot, always have, and it generally pays, so – if you grant me a couple of second’s worth of presumed expertise – I’ll make an observation or two about that dissent.  Observation #1 is: it wasn’t written as a dissent.  It was written as a majority opinion.  The language is expressive of what the writer presumed was the received wisdom, and that’s how he wrote.  He isn’t trying to convince anybody of anything, he’s reporting, and – #2 – he never references any point in the majority opinion, even to disagree with it.  Rather as though when he was writing it was beneath notice, like any other minority view.  It didn’t exist as a majority opinion.
    That, to me, is very troubling – and goddamed annoying, frankly, because what it very clearly indicates is that someone – stand up and be counted, Dread Pirate Roberts – registered a vote, and then changed his mind.  The question is the usual: why?  I don’t know, nor do I pretend to know – but it ain’t good!  That much I damned well do know!
     And then of course the way he went about it is also just amazing.  The law as written and passed was obviously – to children! – not constitutional.  So, impelled by God knows what, what does Roberts do?  He rewrites it, recasts the unconstitutional law, thereby allowing him to recast the argument, and ta-da!  Nobody on this planet ever at any time considered this in the light he apparently did, and the entire Obimbo administration – not to mention Jugears himself – have expended several metric tons of verbiage denying it was what Roberts has made it into in order to save it: a tax.  They have put in time and labor strenuously denying it – loudly and often!  It couldn’t pass muster as they would have had it, so he just took it upon himself to make some, um… alterations, let’s call them.  Yeah, that works!
     Room full of crap.  Warehouse full.  No pony.

  • MacG

    Don’t you guys know that Roberts only did what he did to make Obama a fibber? :)

  • notomarx

    I really enjoyed this essay.  Well put together, with pictures for effect.  Now I’ll re-read and do some thinking about this very important issue.  I am tending to agree with your second and third thoughts.
    I also get a little frustrated with all the complaints about someone else should do something about it. Time to find me a few more ponies.

  • Danny Lemieux

    Bottom line, the American people put into power the people that crafted and voted through Obamacare. It is right that the American people now have to use the legislature to undo Obamacare. I am not optimistic that they will do that.

  • ralphsteadman

    Why didn’t CJ Roberts opinion prominently feature his intent to remand this matter to the electorate?  If this was his intent, why did the plain spoken Hoosier rewrite the ACA as tax law?
    The court stokes the electorate with burdensome taxation to foment the appearance of an apolitical court.  From the founding to Bush 41, American history has not been kind to those perceived to have abused taxation powers.
    The semantics are more complex, but this loopy assertion may as well have emanated from Pelosi as from the court.
    The court’s position seems to be that it will exercise its self-appointed Marbury powers over all political and social issues except when a thorny issue arises that may impact the stature of the court as august apolitical visionaries.  Cowardice of the first order.
    How can a judicial body staffed with ideological water-carriers produce anything else but perversions of the law?  
    It is silly to expect any other outcome.


      One day, deep into the future when the historians write about how Obamacare was born with only a fractional chance of surviving and would have died had it not been for Mary Shelley [read: John Roberts] who was so taken with his own ego maniacal legacy rather than the Constitution, he threw off his black robe, donned a white surgical coat and gave us a 21st century monstrosity that will survive in a variety of forms, morphing from one election to the next. The footnote to history will read a Bush appointed CJ (which will forever stain the conservative side to match the already stained and sullied progressive side of the aisle).


    “But this coming on top of Monday’s Arizona decision leaves me with Coulter’s 7/20/05 column.”

    Anyone looking for the link from jj’s comment above, here it is:
    “Stealth nominees have never turned out to be a pleasant surprise for conservatives. Never. Not ever.”

  • http://ymarsakar.wordpress.com Ymarsakar

    I don’t care any ponies. The reality of this situation is that Americans will have to fight a war, again, to resolve an issue they cannot resolve politically. That’s pretty simple and anyone, even a kid, can comprehend how that works.

  • Tonestaple

    Sorry, no ponies, not now, not ever, not in that stinking pile of horseshit called Obamacare.

    Roberts re-wrote the law.  How is that good news?  He did exactly what we have complained for decades that lefties do, only they generally re-write the entire constitution.  Roberts re-wrote the law and I would surely like to know why.

  • shirleyelizabeth

    My husband (CPA, specialty tax prep) has been doing a lot of research for work lately thanks to this. How were people ever convinced Obamacare wouldn’t increase taxes? It has changed thresholds and ceilings and HSA rules – all in the direction of more taxes – and added other random taxes (and not all of it even has any relation to health care). All along with the penalty, of course. Woohoo.
    All the while, our monthly premium has risen $75 and his (very irresponsible and white trash) brother and sister-in-law continue to have free coverage for their bi-monthly emergency room visits (for childrens fevers etc.). None of this is right.

  • http://OgBlog.net Earl

    A. Nice try, BW…no pony, not even one.  I largely agree with Wolf Howling’s second point.
    B. The “cost-shifting” problem we currently have could be substantially ameliorated if hospitals and other medical personnel were allowed to put a lien on a person’s assets when they don’t pay their bills. 
    Your contractor can do that.  So can your credit card company.  So why not your health care provider?
    And extend this to the 26+-year old professional student — add it to his/her student loan, which can’t be discharged in bankruptcy.
    Oh yes, indeed – I am sick and tired of paying other people’s bills when they’re perfectly capable of taking care of themselves but all the incentives are to leech off the rest of us and they don’t have the character to resist.

  • http://rau.3littlefoxes.com rau9

    What the Prohibition Experiment showed was:

    – NOT that federal prohibition worked
    – NOT that federal legalization worked

    – BUT that local efforts were most successful, both in reducing the excessive drinking, AND in changing the cultural attitudes toward drinking.

    More local, more better, when it comes to moral issues. 

  • jj

    Drudge is reporting that Roberts did indeed vote, then change what passes for his mind.  Which I knew, from the way the “dissent” was written.  It didn’t start out as a dissent, it started as the majority opinion.  So there you go, confirmation.  I hope Scalia, Thomas, and Alito will henceforth treat him with the contempt he merits.  Fine with me if the rest of his tenure is made miserable.

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