It has been an interesting five days since the 2016 election. Taking another swing at this blog after another extended absence. Thoughts and views haven’t changed much so a lot of the older content is still accurate, the only difference being the current roster of miscreants and demagogues have changed to match a world two years on. Here’s to seeing what happens next.
Category: Supreme Court
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
A curious note was passed my way regarding a recent court decision to prohibit the Pittsylvania County Board of Supervisors from holding a pre-meeting prayer that included the name Jesus. Couple that with the knee-jerk reaction from some state representatives in North Carolina who submitted a resolution to establish a state religion, and it’s another spin on the ‘religious freedom’ movement.
Going back to Virgina first, The article regarding the court decision can be found here and the ACLU has it’s own take here. In short, the County Board of Supervisors had deviated from the religious neutral prayer that most government organizations insist upon at the beginning of meetings for a clearly identifiable Christian one. This raised the hackles of one Mrs. Barbara Hudson, and she informed the Board that what they were doing was unconstitutional…which it is. The board more or less told her to shove off, and, true to form, the ACLU became involved. Mediation failed, and ‘lo the Judiciary is brought in to lay the smack down.
A similar incident occurred in North Carolina, in the district the that is represented by the state congressman that presented the resolution. The judicial response to the prayer is what inspired these two representatives, one of which wears the tea party badge with honor, to file this amazingly unconstitutional piece of legislation.
The ground level I’m getting to is this: They were informed that it was unconstitutional, and when informed of such they didn’t bother to research their position nor did they take it under consideration. They blew the challenge off for self-indignant or self-righteous reasons, failed to come to a compromise in court mandated mediation (a simple acquiescence would have sufficed), and in the end cost the taxpayers significant time and energy better spent addressing the issues of their respective county as well as the thousands, if not millions, of dollars in legal fees that will be assessed after the dust has finally settled.
The need, not desire but flat-out need, to invoke God at public government events also makes me wonder, as I have many times before, about the personal relationship with God that the believers are suppose to have, but seem very eager to show off in public. My understanding was that it was a deeply personal, one-on-one kind of relationship. One that cannot be impressed upon by the government, and, through that same clause, cannot be impressed upon others.
The comments on other articles claiming this is another attack on religious freedom by the Judiciary, the resolution goes on to itemize how these decisions are just that, but here’s the thing; the government, any government beholden to the Constitution of the United States America, cannot endorse any religion. The Supremacy Clause of the Constitution overrides state Constitutions and local legislatures. Its not an attack on religion when those affected are asking that the rules that apply to the situation be enforced accordingly. Somewhere along the line those who are pushing for “religious freedom” forgot what it was about.
The Representatives from North Carolina, short on civics lessons or long on sleeping in class, fail to realize that the federal government does have a say in what the states do. The power of the states lies in their people and the states capacity to represent themselves at the federal level. They rage about judicial oversight with regards to these, and many other social matters (and religion is a social matter), but fail to recall that the legislative, executive, and judicial branches are to balance each other. Should the legislative, or we’ll say the most representative body of the electorate, get a wild hair up it’s ass, it is up to the Judiciary (since the executive cannot directly interfere on state affairs) to apply the law as it is interpreted.
Does that mean that the “majority” might get a black eye supporting specific causes, yes. I’d point to school integration, inter-racial marriage, interstate commerce, property rights, voting rights, freedom of speech, and several thousand other decisions made by the Judicial branch that have in some respects hindered the majority from being a collective dick to a select group of people, but also protecting the body politic from those in both the state and federal realms from doing long-lasting harm.
There isn’t a gun being held to their heads saying that they must worship Allah, Amaterasu, or Cthulhu because there are explicit protections prohibiting the government from enforcing a state religion. That protection, however, does not guarantee that a specific religion will remain in the majority over the existence of a nation, or that the majority religion receives any special privileges or protections because it has the most, or most influential, followers. It appears that those that normally decry religious freedom forget that the government is designed to protect not only those practicing a religion from government interference, but also to protect those of us who don’t share their beliefs from being steamrolled by the them.
Stop frothing at the mouth for a moment and realize the long game moments
My stomach fell out when the decision on Thursday rolled down. I was a staunch believer that any variation of the individual mandate was a legal faux pa and had to be struck down. Then I read the Roberts decision and was illuminated to an entirely new way of operating in the government. I was seeing, for the first time, not a decision based on party politics or personal interest. No, I saw a straight out of myth ruling based on pure constitutional reasoning. Okay, there may have been some political wranglings in there, and I am thrilled that other pundits and writers like Michael Medved and Paul Begala were quick to point out the true victory for Republicans in the bill.
At the root of the Roberts decisions, aside from defining the mandate as a tax and throwing the life of the bill back into the hands of Congress which may very well fall into Republican hands in November, there was this little gem:
2. CHIEF JUSTICE ROBERTS concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the
Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.
(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549, 560. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by
purchasing a product, on the ground that their failure to do so affects interstate commerce. (link)
Roberts effectively stopped the government from mandating that a lack of participation in a specific filed of commerce amounted to having a direct impact on interstate commerce. In writing the decision this way he took the congressional, and largely Democratic, insistence to tell Americans what to do with their money, even when they are not spending it, and locked it away in that nasty little box known as ‘unconstitutional’.
Labeling the mandate as a tax was something the President was specific about avoiding during the creation and vote on the bill. Even after it was enacted they President and Democratic members of congress were adamant that it was not a tax, but when they went to the line the only legal way to argue it, and to save any resemblance of the mandate, was to label it just that. However, in doing so it lost that shiny aspect of a social program that could be administered by an Executive Branch organization, and was put back in the hands of Congress.
Lastly, there is the matter of the tax itself. I’ve seen the posts on social websites and heard my conservative friends gnash their teeth and scream to the heavens about how individual liberty is dead, how freedom is no longer found in the United States, and I chuckle. The issue will be revised. CNN pointed out, not 30 minutes after the decision was made, that the tax can only be challenged, by law, after it has gone into effect. That means in January of 2014, the first year the penalties, excuse me, Taxes are in place, there will be another lawsuit, another challenge, and another Supreme Court decision,
Chief Justice Roberts looked to the future on this decision, and he ruled, not as a conservative or a liberal, but as any judge should. He put the balls back in their respective courts, taking the power to create taxes away from the executive and giving it back to the legislative, and told the nation that the President would not be playing with that ball anymore. At least, not in that capacity.
UPDATE: A site I frequently visit (www.neveryetmelted.com) has a fantastic article on this and links to several other articles. I’d strongly recommend bookmarking it if you get a chance.
Old Jeffersonian 