Category Archives: Constitution

UPDATED: Healthscare Halted?

Constitution, Democrats, Healthcare, Individual Rights, Individualism Vs. Collectivism, Justice, Law, Natural Law

“I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate,” Judge Roger Vinson writes. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.” (http://www.campaignforliberty.com/blog.php?view=40520) District Judge Roger Vinson hails form in Pensacola, Florida. He sided with 26 suing states.

Will those Senators who’re up for re-election in 2012 bring themselves to vote with their lower-chamber colleagues to repeal the thing? Will the same representatives admit that forcing an individual to purchase a product is wrong, and certainly beyond their mandate?

I doubt it. They’ll tell us that the (Rousseauist) common good, as defined by the state, takes precedent over the common man. We have not heard the last from Obama’s advancing Politburo Of Proctologists.

UPDATE: Vinson’s is really a beautifully written and reasoned Decision. It cleaves to the Constitution. Keith Olbermann’s proxies have begun to tarnish Judge Vinson as a judicial activist, whatever that means. Do these sound like unfair proceedings?

Both sides have filed strong and well researched memoranda in support of their motions for summary judgment (“Mem.”), responses in opposition (“Opp.”), and replies (“Reply”) in further support. I held a lengthy hearing and oral argument on the motions December 16, 2010 (“Tr.”). In addition to this extensive briefing by the parties, numerous organizations and individuals were granted leave to, and did, file amicus curiae briefs (sixteen total) in support of the arguments and claims at issue.

“… I conclude that the individual mandate seeks to regulate economic inactivity, which is the very opposite of economic activity. And because activity is required under the Commerce Clause, the individual mandate exceeds Congress’ commerce power, as it is understood, defined, and applied in the existing Supreme Court case law….”

AND:
The individual mandate is outside Congress’ Commerce Clause power, and it cannot be otherwise authorized by an assertion of power under the Necessary and Proper Clause. It is not Constitutional. Accordingly, summary judgment must be
granted in favor of the plaintiffs… ”

Also adjudicated was the state plaintiffs objection “to the fundamental and ‘massive’
changes in the nature and scope of the Medicaid program that the Act will bring about. They contend that the Act violates the Spending Clause [U.S. Const. art. I, § 8, cl. 1] as it significantly expands and alters the Medicaid program to such an extent they cannot afford the newly-imposed costs and burdens. They insist that they have no choice but to remain in Medicaid as amended by the Act, which will eventually require them to ‘run their budgets off a cliff.’ This is alleged to violate the Constitutional spending principles set forth in South Dakota v. Dole, 483 U.S. 203, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987), and in other cases.5 Under Dole, there are four restrictions on Congress’ Constitutional spending
power: (1) the spending must be for the general welfare; (2) the conditions must be stated clearly and unambiguously; (3) the conditions must bear a relationship to the purpose of the program; and 4) the conditions imposed may not require states ‘to engage in activities that would themselves be unconstitutional.’ Supra, 483 U.S. at 207-10. In addition, a spending condition cannot be ‘coercive.’ This conceptional requirement is also from Dole, where the Supreme Court speculated (in dicta at the end of that opinion) that ‘in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’ … If that line is crossed, the Spending Clause is violated.”

[SNIP]

Left-liberals believe a judicial activist is someone who reverses precedent. Republicans think a judicial activist is someone who disobeys the President. That’s the sum total of how the two parties relate to the law.

Rand Paul Revs-Up

Constitution, Debt, Economy, IMMIGRATION

Sen. Rand Paul is certainly showing his sclerotic Republican colleagues how it’s done. The son of Ron has proposed $500 billion in spending cuts to take effect in a year. A laid-back Mitch McConnell, the Senate Republican Leader, showed some curiosity: “There is widespread interest in the Republican conference for spending cuts that pay more than lip service to reducing the debt.” (http://www.businessweek.com/ap/financialnews/D9L094PO1.htm)

How nice.

How will the Republican establishment grapple with Rand’s perfectly reasonable quest to limit the automatic grant of citizenship to the children of illegal immigrants, unless certain conditions are met. (http://www.foxnews.com/politics/2011/01/28/senate-proposal-amend-constitution-restrict-birthright-citizenship/#ixzz1CUTO6zXN)

Limit? Now that’s a new concept. To stop the American Welfare State at the Rio Grande—now that would be mean. (Besides, Mitch doesn’t pay for it.)

ANN COULTER is often an ace on matters of law: “Democrats act as if the right to run across the border when you’re eight and a half months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.”

… this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it sneaked in when no one was looking, and now we have to let it stay.
The 14th Amendment was added after the Civil War to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. …
The drafters of the 14th Amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. …

MORE.

UPDATE III: State of the Union: a ‘Disgusting Spectacle’ (Derb: Defeatist or Realist?)

Barack Obama, Constitution, Democrats, English, History, Intellectualism, Intelligence, Literature, Politics, Propaganda, Reason, Republicans, Technology, The State, The Zeitgeist

Article II, Section 3 of the Constitution required that the president “shall from time to time give to Congress information of the state of Union.” Like everything in the Constitution, a modest thing has morphed into a monstrosity.

A “Stalinesque extravaganza” that ought to offend “anyone of a republican (small ‘r’ …) sensibility,” is how National Review’s John Derbyshire describes the State of the Union speech. “American politics frequently throws up disgusting spectacles. It throws up one most years in January: the State of the Union speech,” writes Derb in “We Are Doomed: Reclaiming Conservative Pessimism,” a book I discussed in “Derb Is Right: ‘We Are Doomed'” (http://www.ilanamercer.com/phprunner/public_article_list_view.php?editid1=580).

John goes on to furnish the quotidian details of how “the great man” is announced, how he makes an entrance; the way “the legislators jostle to catch his eye” and receive his favor. “On the podium at last, the president offers up preposterously grandiose assurances of protection, provision, and moral guidance from his government, these declarations of benevolent omnipotence punctuated by standing ovations and cheers from legislators” (p. 45).

Then there is the display of “Lenny Skutniks” in the audience, “model citizens chosen in order to represent some quality the president will call on us to admire and emulate” (this year it’ll be the family of the little girl who was murdered by the Tucson shooter).

Derb analyzes this monarchical, contrived tradition against the backdrop of the steady inflation of the presidential office, and a trend “away from ‘prose’ to ‘poetry’; away from substantive argument to “hot air.”

The president of the USA is now “pontiff, in touch with Divinity, to be addressed like the Almighty.”

Prepare to puke. The antidote is “WE ARE DOOMED.”

UPDATE I (Jan 25.): Robert, have you even read “WE ARE DOOMED”? Derb is a paleo-libertarian and a bloody good writer at that.

UPDATE II (Jan. 26): Derb: Defeatist or Realist? Van Wijk: I did not know you were among the happy faced, cheery conservatives who eschew reality and insist that the band of fools plays on, as the Titanic goes down.

Almost all of Derb’s misery making factual survey of America, in We Are Doomed, is correct (bar his biological determinism, which is supposed to sunder free will, but is not convincing). In fact, it mirrors a lot of what I’ve said and written (why, I’m cited in the book vis-a-vis Robert Putnum). There is no getting out from under:

1) Crippling government debt

2) The layers of crap culture and cultural products (literally: did you know that the MOMA, or its British equivalent, stores bodily waste in hundreds of vials produced as art?)

3) Perverted intellectual and moral standards

4) Crops of affirmatively appointed leaders, in all fields of endeavor, which will be with us for decades, if not longer, because of (1) and (2), among other reasons.

What’s your problem with that (Derb’s) rational, reality based conclusion—an analysis effected over the years in these (my own) pixelated pages?

Isn’t it clear that freedom and mass society—unfettered democracy, mass immigration mainly of voracious tax consumers with a visceral hatred for the history and historical majority of this country, on and on—cannot coexist?

It does not mean that one doesn’t continue to fight (I do), but it’s a losing proposition. Talented, industrious, taxpayers—doing highly skilled work—will become less numerous and more burdened with the years. This shrinking tax-base will be working to keep the voracious racial Idiocracy, represented faithfully by the political and intellectual class, in the style to which they have become accustomed.

(As aside: My source in one of America’s most lauded corporations, brilliant in his performance and intellectual leadership, is forever being told to develop his sorry “emotional intelligence”—even given books about this crap—as he solves the most complex of technical and logical problems. Why? because the manly, forceful, algorithmic iteration of facts, without dissolving into tears and embracing the intellectually halt and lame and dysfunctional around you: that is BAD. Men like that are not dismissed, because few can replace them. But they are cornered and cowed. Wanna tell me that a society that disempowers and subdues talent will survive?)

Isn’t it idiotic to attack the messenger, Derb? In any case, I’m glad you don’t attack me for advancing a similar message for years.

UPDATE III: To the letter about his alleged taste in poetry, Derb has provided some references in the Comments sections below. What about Louis MacNeice? I’m a poetry primitive, but I quite liked MacNeice.

UPDATED: Net Neutrality Odyssey

Business, Constitution, Fascism, Free Markets, Internet, Private Property, Technology

If they are not, the FCC’s new Net Neutrality rules sound awfully like price fixing, or a kind of Internet Civil Rights Act, where everyone must be allowed access to everything without discrimination based on, well, what and how much you purchase.

Ruled by regulators we certainly are.

Article I, Section 1, of the United States Constitution, provides that:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

So what is the Federal Communications Commission (FCC) doing regulating the Internet? Nothing out of the ordinary is the answer. The FCC is just doing what all America’s extra-Constitutional government agencies do: manage all aspects of American life. Hence the term “The Managerial State.”

ROBERT M. MCDOWELL, a Republican commissioner of the Federal Communications Commission, calls the FCC’s unconstitutional power grab a “jaw-dropping interventionist chutzpah”; a bypasses of “branches of our government in the dogged pursuit of needless and harmful regulation.”

Let us not forget that the Net Neutrality odyssey began with that bastard Bush. As Wired reports, “In 2005, then-FCC chairman Michael Powell issued a set of principles, the so-called Four Freedoms, which said that internet users had the right to use the lawful software and services they want to on the internet, access their choice of content, use whatever devices they like, and get meaningful information about how their online service plan works.”

Note the Bush boy’s UN-like language: “Four Freedoms.”

This is important: “Both wireless and fixed broadband service providers will have to explain how they manage congestion on their networks. Cable and DSL companies will have to let you use the applications, online services and devices that you want to. Meanwhile, wireless companies will be prohibited from blocking websites and internet telephony services like Skype. Cable and DSL providers would be barred from ‘unreasonably’ discriminating against various online services.”

An Internet Civil Rights Act of sorts.

The one thing that bothers me is this: Is Comcast, for example, not a franchise (“a privilege or right officially granted a person or a group by a government”)? The kind of areal monopoly they enjoy and less-than-optimal service they provide in the market seems to suggest that possibility.

Franchise status might also explain why, as Wired observed, “There was one group … which seemed content with the new rules: the nation’s cable and telecommunications companies, including AT&T, Comcast and Verizon. They’ve been making the rounds in recent weeks signaling their support for Chairman Julius Genachowski’s compromise deal.”

UPDATE (Dec. 22): GREAT MINDS. Michelle Malkin also finds Civil Rights language to be the appropriate source of metaphor to describe the impetus of laws that’ll mandate equal Internet access to all irrespective of the cost of a product or service.

Under the FCC’s new regime, the market will be fattened and socialized and the price system sundered. This means worse service for all paying customers as the incentive to innovate are removed. When will Out “Overlords Who Art in DC” UNDERSTAND that the price and profit system is the key to prosperity? The correct answer is “never.”

VIA MICHELLE:

Undaunted promoters of Obama FCC chairman Julius Genachowski’s “open Internet” plan to expand regulatory authority over the Internet have couched their online power grab in the rhetoric of civil rights. On Monday, FCC Commissioner Michael Copps proclaimed: “Universal access to broadband needs to be seen as a civil right…[though] not many people have talked about it that way.” Opposing the government Internet takeover blueprint, in other words, is tantamount to supporting segregation. Cunning propaganda, that.

“Broadband is becoming a basic necessity,” civil rights activist Benjamin Hooks added. And earlier this month, fellow FCC panelist Mignon Clyburn, daughter of Congressional Black Caucus leader and Number Three House Democrat James Clyburn of South Carolina, declared that free (read: taxpayer-subsidized) access to the Internet is not only a civil right for every “nappy-headed child” in America, but essential to their self-esteem. Every minority child, she said, “deserves to be not only connected, but to be proud of who he or she is.”