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Death of an Ideal

Thirty years or so ago, I told my father that the US had reached a tipping point, and that the ballot box was no longer an effective check on a government that “evinces a design to reduce them[us] under absolute Despotism.” I was of the opinion that Jefferson was right, and that the bullet was going to be the inevitable outcome. My father, a wise and learned man, suggested that I was unnecessarily fatalistic and that there would be corrections in due course. I am sad to say, it appears he was wrong.

Last week, the Supreme Court handed down its ruling on the ACA, more commonly known as “Obamacare.” In a 5-4 ruling, the court held that the, inter alia, the individual mandate wasn’t a mandate but a taxable option, that a penalty wasn’t a penalty but a tax, and that tax wasn’t a tax but a penalty, depending on which law you cared to apply. The real upshot of the law is that the court, using the taxing power granted Congress by the Constitution, has upheld the requirement that you buy insurance, like it or not. The Congress has compelled you to buy a product, enforceable not by the commerce clause, but by the IRS. The government now has no limitations on what it may compel you to do or refrain from doing. It is the latest in a series of cases that began in the forties, and continues til today.

Shortly before World War 2, Congress passed a law that among other things, regulated the market for wheat. This was done to prop up the price of wheat. A farmer, like many other farmers, grew some wheat on his farm and used some of it to feed his family, and some to feed his livestock. The government found out, and prosecuted him for it. The Supreme Court, in the case of Wickard v. Filburn 317 U.S. 111 (1942) held that by using his own wheat instead of buying it, Filburn had impacted interstate commerce, and Congress was well within its power to regulate such behavior.

In a twinkling, private property rights began their slide into the socialist maw which culminated recently in a determination by a bunch of lawyers called the Supreme Court that if the government wanted your property because they had a better use for it, you were out. See Kelo v. City of New London 545 U.S. 469 (2005)

Filburn was a necessary product of our first socialist president. Under the new socialism of Obama, the usurpation of property has gone from real to personal property. He takes whole industries and wipes out the personal property of stockholder, bond holders and creditors. See, for example, GM. And instanter, we have the Obamacare ruling.

There will be articles by the score on both sides of the issue; some excoriating the court for their ruling, some applauding them for it. Very few will realize ultimate import of the decision. The US Constitution, and the Republic it produced, is dead. Dead and gone.

We may, someday, force the contours of the government back, get back some semblance of a charter for liberty, but the odds are against us. With the Supreme Court in charge of “interpreting” any new charter, the chances for an enduring freedom are slender. The lawyers have too large a stake in chaos for an orderly free society to be built on the ruins of this one. We have had our shot and we blew it.

If you have any doubts about the death of the Constitution, one need only consult the McCain-Feingold act. “Congress shall make NO law…abridging the freedom of speech.”(Emphasis mine) Not some laws, or but NO laws. Freedom of speech, as well as religion, are totally immune from regulation. The real “wall of separation” in the first amendment is the wall prohibiting congress from impeding any of the rights enumerated therein. Except that the Supreme Court has continually breached that wall. This body of lawyers found that McCain-Feingold, the law that limits free speech about candidates during elections, is constitutional. To whom do you appeal when the Court has become an engine of social change?

Did you ever wonder where the court got the power to decide what is and is not constitutional?Who says that the Supreme Court is the arbiter of the meaning of the Constitution? They did, in 1803. In Marbury v. Madison, 5 U.S. 137 (1803) they said they were the sole judge of the meaning of the document. And nobody disagreed. So the idea of three separate and equal branches of government died in 1803. It is no longer the case, but our political class includes it among its standard collection of lies they tell to the working class stiffs that keep the wheels of commerce lubricated with their sweat and blood.

The original untampered document speaks of what the government can’t do to you. It was a negative document in many ways. Congress shall make no laws, no person may be tried twice, no unreasonable searches without a warrant, etc. Occasionally there were positive recognition of rights; the Second amendment, for example. The substitute we have been given pushes what the government must do for, or to, you. Whatever the price of liberty is, we didn’t or wouldn’t pay it. We fell victim to the canard that compassion was a virtue that the government could force upon us. We decided that comfort and security were more important than liberty and freedom. And now, the government has become what Alexander Hamilton called “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.”

Kagan’s Disproportionate View

I have, so far, withheld comment on the Elena Kagan nomination. We all know by now, or should, that this is another in the long line of dog-and-pony shows that are judicial confirmation hearings. The Senators ask questions that show how little they know about both the constitution and the process of judging, bloviating solely for the TV to try to impress their constituents that they are Solomon-like in their wisdom. The nominees answer without answering, refusing to say what they, and we, already know. That is, how will they vote on the two or three really important questions that make up the bulk of what the public cares about from the Supreme Court.

Kagan is no different. A Clinton apparatchik, now an Obama functionary, we know two things. First, that with an almost filibuster-proof majority, she will be confirmed by the democrats regardless of republican complaints. That is the power that comes with a president whose party holds the senate. That is, of course, unless the republicans are in power. Then we hear the caterwauling from the dems about the need for “mainstream” judicial nominations. Which brings us to the second thing we know.

Kagan is clearly a liberal. We know her positions on almost any issue you care to name. Second Amendment? Against it. First Amendment? Against it. Abortion? For it. Gays in the military? For it. None of this is a surprise; Kagan is not some stealth backwater justice, coming out of nowhere. She is a Harvard educated liberal who has served two liberal presidents. So the fact that she is a liberal is largely irrelevant to my complaints. The country has had liberal justices before and survived. The country has had liberals hiding as conservatives, until they were confirmed, and survived. Even that bastion of liberal thought, Thurgood Marshall, couldn’t destroy the republic single-handedly.

What irks me about Kagan is not her politics, it’s her moral incompetence. Kagan is quoted as having said that “ ‘don’t ask, don’t tell’ is a moral injustice of the first order.” There are so many things wrong with that statement it almost boggles the mind.

First of all, “don’t ask, don’t tell” is a courtesy and a kindness, as well as a strategy to avoid refusing entry into the military for homosexuals or discharging the ones already in. We won’t ask if you are queer, and as long as you don’t tell us, we won’t care. It seems to be a reasonable policy to me, since that is largely how I conduct my life. I have never asked anyone with which sex they sleep, and I prefer not to be told. Having once been told, I must then alter my behavior.

Second, calling it a moral injustice does violence to both words. Whether or not to allow openly homosexual people to serve in the military is not a moral question, but a practical one. There are a number of military people who have studied the question, and believe that allowing open homosexuals in the military would endanger unit cohesiveness. I don’t know that to be true, but I do know the answer to that question is a functional one, not a moral one. One would not suggest allowing a quadriplegic to serve in an infantry unit, but no-one would say that decision had a moral component to it. As far as injustice goes, the concept of justice embodies the principle of treating like things alike. It is not unjust to treat homosexuals differently from heterosexuals in all circumstances. There are circumstances where homosexuality can rightly be considered to be a disqualifying condition.

Third, when Kagan says “first order’” she overstates its importance. It may be an important issue, but I would reserve “first order” for the problems that threaten our very existence. Abortion, islam, unchecked war on our southern border, starvation throughout the world, genocide are all fist order issues. Whether you can engage in sodomy, announce it publicly, and expect life to go on as usual, hardly reaches to the level I get exorcised about. Kagan, however, finds no difficulty in equating the “don’t ask, don’t tell” policy with the human holocaust that surrounds us daily.

I believe that Kagan is unqualified for the Supreme Court. Not for her politics, but for her incredibly deranged perception of what constitutes serious moral issues. It reflects a paucity of thought that is appalling in someone nominated for the court, as well as a lack of fundamental education in what constitutes morality and how to discern major from minor issues thereof.

It is very obvious, to me at least, that Kagan would be a favorite of the late Roman Hruska.

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