SCOTUS Observations

Reading the Roberts opinion in the challenge to Obamacare has convinced me of a couple of things.  One, stare decisis is killing the coherence of the law.  Wickard v. Fillburn, like Jason Vorhees of Friday the 13th, refuses to die.  As long as it keeps being propped up, there will exist no practical limit to the abuse of the commerce clause.  Two, Estase is very happy he did not become a lawyer, as the pedantry of these arguments makes one long for the forthright simplicity of medieval metaphysics.  Three, although many commentators have excoriated Justice Roberts for the claim that the government may not force you to buy insurance, but may heavily tax you for not buying insurance, the really scary person in the room was Ruth Bader Ginsburg, who not only believes in the broadly constructed commerce clause, but apparently also believes that the Federal Government has the right to coerce the states into expanding Medicaid into an entirely different program than what it originally was.  So, apparently, Justice Ginsburg does not see state governments and the Federal Government as relative equals, which is what federalism suggests, but she thinks that states are merely a dependent appendage of the Federal Government, which can compel the states to do whatever it bids.

Some commentators also act surprised that Roberts is a moderate.  I saw that right away when he was being confirmed, and said he believed in the right to privacy.  Anyone who is over the age of 13 knows that that meant that Roberts was saying by that that he would uphold Roe v. Wade.  So for people to now be surprised that Roberts isn't a Scalia is a little naive.

Rights Preceeding Constitution?

First Things.com has an excellent Hadley Arkes column called "Natural Rights Trump Obamacare, or Should,"  wherein the excellent Mr. Arkes raises the excellent, and ignored, question of whether conservatives can/should go beyond black letter constitutional law in defending freedom and the right to life.  It is a pressing constitutional and moral question:  do our legal rights start and end with the constitution?  It is even more pressing, as the Balkinization blog offers a new piece of liberal obfuscation-- the term "sail originalism," which seems like living constitution under a different name.  It is a commonplace of conservative and libertarian legal commentary that the commerce clause has been perverted by Supreme Court decisions since the New Deal, but it is probably impossible to return to original intentions of only regulating interstate commerce.

The Glorious Uncertainty of the Law

Hat tip to Boniface at Unam Sanctum Catholicum:  The Grand Duke of Luxumbourg is divested of his veto power for having stood up to the leftist euthanasia law created by Parliament.

Thus, as in America, the constitutions of nations can always be altered for the furtherance of abortion and euthanasia.  In 1973, a previously unknown constitutional right was created as "the prenumbra of a shadow."  You see, constitutional rights do not have to appear in the black-letter law--they can be invented!  The Supreme Court can essentially act as though they were a nine-man Constitutional Convention, and they do not even have to send their creations back to the states for ratification.  The theme song for the international left may as well be Judas Priest's "Breaking the Law."

Limits of Judicial Review

"Nor should it ever be lost sight of, that the government of the United States is one of limited and enumberated powers; and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people what they have not chosen to do for themselves(p144). Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research(p157). To resign an exposition so sanctioned, would be to deliver over the country to interminable doubts; and to make the constitution, not a written system of government, but a false and delusive text, upon which every sucessive age of speculatists and statesmen might build any system, suited to their own views and opinions(p378)."
Justice Joseph Story
Commentaries on the Constitution