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Side Stepping The Constitution

From Rand Simberg at PJ Media, How Republics Die:

But the Founders foresaw this sort of thing. That is why they put a provision into the founding document to deal with it. The proper way to address the issue, in terms of making  SSM universal, was not to manufacture a new right from the Constitution, but rather to amend it. But that is something that hasn’t happened in a long time, because it is (rightly) difficult to do, and the Congress, the courts and the public have become too impatient, and prefer to sidestep it (which in fact has happened in, among other things, the federal War on Drugs, which somehow didn’t seem to require an amendment even though the prohibition of alcohol did).

The Constitution was meant to be the bedrock of laws, and the laws were to be enacted by the Congress, and signed by the president, not ignored or superseded by the president, or rewritten by the chief justice, to satisfy their own preferences, or those of others, even a majority. We are neither a tyranny of men, or that of a majority. As has often been told, when Benjamin Franklin came out of the Constitutional Convention, a woman asked him, “Mr. Franklin, what have you given us?” His reply: “A republic, madam, if you can keep it.”

When we ignore and side step the Constitutional and legal process to achieve a desired end, the bedrock starts to turn to sand. When the laws are ignored by those who have sworn to uphold or review them, the rule of law itself disintegrates. When the public doesn’t care, or understand the role of the branches of government, but votes anyway for people who tell them they’ll just give them stuff they like, that is how republics are lost.

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Repellant Legislation

Doctor Leo Spaceman

From The Weekly Standard in 2010, The Process is the Substance by Matthew Continetti:

Once the shock wore off, the Democrats decided that if they could not pass their reform following normal procedure, they would simply change the procedure. Hence the decision to pursue “reconciliation,” a parliamentary measure under which budgets can pass the Senate by a simple majority. Except even that wasn’t enough. For reconciliation to happen, the House would have to pass the original Senate bill—a bill which even the speaker of the House admitted no one wanted to vote for. Solution: Change the procedure again, this time “deeming” the Senate bill passed without actually voting for it. Dismiss the public outcry over all these changes as flippant objections to mere “process.” And in order to ensure a positive score from the Congressional Budget Office, game the system so that the taxes come first, the spending comes later, Medicare “savings” are double-counted, and a student-loan reform applies to health care’s price tag. One cannot judge the full consequences of health care reform. What can be judged is the manner by which Democrats have governed over the last year. They have been partisan and ideological, derisive and dismissive. They try to legislate massive changes to American society and the American economy by the tiniest of margins and the most arcane of methods. The process has taken on a substance all its own. And it’s repellent.

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Legislative Intent


from Petterico’s Pontifications, King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies:


There is much disagreement about this on both sides. The conservatives point to Jonathan Gruber, a central ObamaCare drafter. The lefties note that Gruber was elected by nobody, and they point to a complete absence of any reliable evidence by an actual legislator saying that they wanted to use subsidies to coerce the states. (The famous Baucus statement is pretty ambiguous, even according to Michael Cannon, not to mention the fact that Baucusadmitted he didn’t even read the bill.) Frankly, I don’t think the winning position in this murky debate is very clear. Whatever the origin of the “established by the state” language, I think the best explanation of its retention in the final bill is that the legislators foolishly assumed every state would set up an exchange. They guessed . . . poorly.

My own personal opinion is that allowing one’s self to be dragged into the muck of a messy debate about intent misses the point. My view is that arguing about legislative intent is a fool’s errand, because as I said way back in 2010,there really is no such thing as legislative intent:

[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text.


Tips to Instapundit.

Legislative intent would appear to be a significant development in our court.

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Uninhibited Power


from The Washington Post, On Obamacare, John Roberts helps overthrow the Constitution by George Will


Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate. This fulfills the Roberts Doctrine that it is a judicial function to construe laws in ways that make them perform better, meaning more efficiently, than they would as written by Congress.

Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anti constitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights. Besides violating the separation of powers, this approach raises serious issues about whether litigants before the courts are receiving the process that is due to them under the Constitution.”

The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.

Roberts says “we must respect the role of the Legislature” but “[A] fair reading of legislation demands a fair understanding of the legislative plan.” However, he goes beyond “understanding” the plan; he adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.


This ruling is part of a long trend in progressivsim to counter the ideas of checks and balances and thus increase central power.

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Judicial Nihilsim

From Rand Simberg at PJ Media, How Republics Die:

As I noted on Twitter yesterday, it is entirely possible to like the outcome of a court ruling (or legislation) while being appalled at the process by which it was achieved. For instance, one can be both pro-choice and still believe (as in fact Ruth Bader Ginsburg does) that Roe v. Wade was wrongly decided.

But too many people (including, apparently and sadly, many of the justices themselves, perhaps even including the chief justice) think that the purpose of the Supreme Court is to give them things they like, like subsidies for health care, or the right to marry someone of the same sex. They care only about the results, and are utterly indifferent to the process (as we saw with the way the PPACA was passed). They believe that the ends, if sufficiently desirable, always justify the means.

But the means matter.

If, as Chief Justice Roberts implied yesterday, ambiguous laws can  be changed by judges per their divination of legislative intent, then there is no law except what the judges think it is. (I would note that in fact his reasoning was fundamentally flawed by his statement that it was Congress’s goal to simply “improve insurance markets.” I think their intent was to increase their control over our health providers, and ultimately lead us down a path to single payer. But neither of us knows.) This was not judicial activism — it was judicial nihilism.