Sometimes, the most dangerous dog in the junkyard is the one who's injured. The one every one thinks is beaten: everyone, that is, except for said, junkyard dog.
My Grandfther, an African American Indian who grew up in Oklahoma in the late 1890's used to always tell me:
...boy, you caint ever turn your back on someone you beat...even when they put down they gun or they knife and surrender, no matter what they say, you give'em a chance to get back at you, they will...
My Grandfather was talking about what happened in Tulsa sometime in the early 1920's: when the white folks burned down what was known at the time as the Black Wall Street. Most of my kin who lived through that mess passed down to all us kids a simple rule:
...ain't nothin' that good means you take it for granted. Nothin'
As I grew up in suburban Detroit, I never understood what that meant, but the older I get, the more it slowly dawns on me.
Call me crazy, but I got to get this off my chest so I can move on and think about something, anything, else. Don't get me wrong: like most of ya'all out there I'm happier than a pig in slop that President Obama and the Democratic Party has accomplished an incredible feat of skill, determination and plain old fashioned true American Grit in passing comprehensive Health Care Insurance Reform. But something is still sticking in my craw and I can't quite put my finger on it.
For quite some time I have been looking over the recent Supreme Court Decision regarding Campaign Finance and there is something about that decision I want draw your attention to for a moment if I may.
Fidelity to precedent—the policy of stare decisis—is vital
to the proper exercise of the judicial function. "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."
That is from the Chief Justice himself. Sounds pretty good doesn't it? But there is more.
Stare decisis is... a "principle of policy.".... When considering whether to reexamine a prior erroneous holding, we must balance the importance of having constitutional questions decided against the importance of having them decided right.
The usage of the word "right" kind of makes my ears prick up, but that may just be me. I can't presume to speak for any one of you. The thing is a lot of what we have come to take for granted, civil rights, Campaign Finance reform, even Roe v. Wade, rests solely on the provisions which Stare Decisis had, before the recent Supreme Court decision, firmly established in the Corpus Polis Veritas of the body politic across the previous generations.
Interestingly enough, Justice Roberts bases the bulwark of his reasoning on this issue on the 1944 rulings of Associate Justice Robert H. Jackson.
As Justice Jackson explained, this requires a "sober appraisal of the disadvantages of the innovation as well as those of the questioned case, a weighing of practical effects of one against the other."... In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion." Its greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent
What Justice Roberts has done here is to set the stage for setting aside stare decisis because of Judicial Interpretation. So, what does this have any thing to do with the recently passed HCR legislation particularly with it's statutory emphasis on compulsory mandates?
Well, for starters, the Attorney General of my home state here in Michigan, along with a gaggle of other Attorneys General from across the country, are of the mind, I wager, that "fidelity to precedent" will be suspended in their favor in much the same way it was in favor of corporations suddenly defined as individuals complete with the inherent individual human rights of free speech.
Okay, may be I am an alarmist who doesn't get out of the house enough and probably spends way too much time talking to himself. Before you give up on me and turn to another diary, if you have gotten this far, please, consider the following:
Attorneys for the Government will undoubtedly base their defense on the commerce clause in conjunction with the supremacy clause of the constitution:
The Commerce Clause is an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribe. Dispute exists as to the range of powers granted to Congress by the Commerce Clause... the clause is often paired with the Necessary and Proper Clause, the combination used to take a broad, expansive perspective of these powers. Many strict constructionists deny that this is the proper application of the Commerce Clause.
Normally, this would be a sound defense strategy. However, for it to work in the Court, the sitting Justice or Justices must feel the same way about Stare Decisis as defense council. Unfortunately, judging by some accounts:
Many strict constructionists deny that this is the proper application of the Commerce Clause
AND:
It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent
THIS MAY NOT AT ALL BE THE CASE.
Staff writer for the Washington Post, Randy Barnett, sets the stage for the opposition in this question with his March 21st article: "Is Health Care Reform Constitutional?"
...the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds...
Yet, as provocative as this perspective may be for the Attorney's General lining up to bring their case (s) to court, in close examination of the same Constitution both sides will eventually have to claim, there remains one particular Amendment, the Ninth Amendment, that I feel will be a crucial "high ground" one side or the other will have to occupy first in order to prevail, even in the conservative and strict constructionist atmosphere of the current Supreme Court of the United States.
Amendment 9 - Construction of Constitution. Ratified 12/15/1791. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
On the one hand, if it is demonstrated that the mandates element of Health Care Insurance Reform protect certain rights of Americans who otherwise are disparaged by the status quo, then a 5-4 decision may go in their favor. On the other hand, for the other side to argue that mandates are unconstitutional, they will have to demonstrate that:
....Like Madison's draft, the final text of the Ninth Amendment speaks of other rights than those enumerated in the Constitution. The character of those other rights was indicated by Madison in his speech introducing the Bill of Rights...and it follows, that all that are not granted by the constitution are retained; that the constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government.
In other words, for the other side to prevail and thereby effectively jeopardize a vital "third leg" to the three legged stool metaphor of Health Care Insurance Reform, they most likely will maintain that Federal Mandates intrude upon the "residuum" being the rights of the people not specifically granted but inherently implied by the Constitution.
It remains for the Government then that even though:
... these arguments are not entirely without foundation...they are not as conclusive to the extent it has been proposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse.
Basically, what Health Insurance Reform may come down to are the 21 words that make up the 9th Amendment: almost like blackjack where whomever reaches "21" first wins and just like the card game, there is no second place.
For the Government to prevail, I maintain, for any one who is still reading this, Council must redefine compulsory ownership specifically as "participation through constructed condition."
The overall parity and equality of the greatest common number of American citizens, must be argued in relation to the General Health, Welfare and Public Safety and Security depend facilitated through the mutual cooperation of State, Federal and local agencies as the Underlying role of Government.
Constitutional construction on its face must reflect this connection with AND without precedent. For either side to rely solely on Stare Decisis either in support or refutation of its position, will not be sufficient for victory. Totally owning the discourse regarding the Underlying Role of the Federal Government in this issue, on the other hand will be.
I'm not going to get excited by any of this: after all, I could be wrong or simply telling the reader what she or he already knows all too well. But this was on my mind and I had to get it off my chest.
I did not specifically mention anything about the Turner Diaries or the Michigan Militia or Tea Bagger Extremists, and if you've gotten this far, you may be asking yourself that very same question. But, they are there: in between the lines. Ultimately, what I'm arguing is that no matter how good things appear don't stop thinking. Victory should never trump reason or just common good sense.
Take it or leave it, for what it's worth.
A Few Thoughts from
Tom