July 2, 2012
I was standing in the room where Abraham Lincoln drafted the Emancipation Proclamation when I heard the news. I was visiting the Lincoln Cottage with some good friends from Scottsdale, Arizona, when we got the word: The Supreme Court had upheld President Obama's takeover of health care and John Roberts had written the majority opinion. I was shocked. My first thought: Now all Americans' freedom is in danger. The good work of President Lincoln in jeopardy. A government of the people, by the people, for the people cannot be reconciled with an all-embracing health control regime that issues mandates.
Some conservatives are taking consolation from the thought that Roberts said no to using the Commerce Clause as a means to bind us by government edicts. This is cold consolation. If Congress can do this through its taxing power, what can it not do? All a Pelosi Congress would have to do is to define an activity, craft a penalty for Americans not engaging in that activity, and have it upheld under this precedent as a tax. How can this measure be a tax when those who wrote it, those who introduced it, those who defended it, and those who voted to pass it, all vehemently denied that it was a tax? And if it is a tax, why did it not have to originate in the House of Representatives? My copy of the Heritage Guide to the Constitution makes it clear the Founders wanted to keep "power of the purse" in people's House as a check on the power of the more aristocratic Senate.
Is this too silly an obstacle? Is this too basic? John Roberts muffed the administering of the Oath of Office to President Obama. Might we imagine he overlooked this little detail, as well?
My friends are telling me that this volte-face by Roberts is "not as bad as Souter." Really? I was in the room when Souter was approved by the Senate Judiciary Committee. I remember well looking over to pro-life friends as they shrugged their shoulders. Souter was a blank slate. This non-entity, this squirrelly recluse from the New Hampshire woods, was never a man in whom we placed any hope or confidence. And when this nowhere man was confirmed, I crossed my fingers, hoping that Gov. Sununu of the Granite State knew better than we did.
I was soon disabused, however. The Saturday after he was confirmed, my wife handed me a clipping from the Washington Post "Style" section. It said Justice David Souter had asked the clerk at the supermarket in his new Georgetown neighborhood if the can of tuna he had purchased was "dolphin safe." Instantly, my heart sank and I knew that the fate of millions of unborn children had been sealed. Souter left Washington after twenty dismal years here, unsung and unhung.
We were assured by staunch Reaganauts that John Roberts was a committed and fearless constitutionalist. We did not expect that he would in every case rule as we would have him rule. Still, we respected his intellectual integrity. No one in 2005 dreamed that he would re-write the greatest power grab in American history in order to find it constitutional. The tortured logic of the Roberts ruling defies history and reason. And it gives every impression of having been cobbled together at the last minute in some feckless attempt to prove the Court is not partisan.
The Court should be partisan--for ordered liberty, for the rule of law, for the Constitution itself. What Roberts has achieved with this dog's breakfast of a ruling will only hold the Court up for renewed scorn. After nearly forty years of Roe v. Wade, after the slaughter of fifty-five million innocents, one might have thought there were more important considerations in the minds of a learned jurist than the prestige of his "eminent tribunal." Apparently not.
Many political commentators are giving Roberts credit for playing chess while we mere mortals play poker. He is being described as a clever Machiavellian who knows how to energize the conservative base for the November elections.
If that is true, why should we respect him as the honest and dispassionate "umpire" he vowed under oath that he would be? His duty was to rule whether this law could be reconciled with the Constitution we revere. He failed manifestly do to so. If any of the kudos bestowed on him as a supreme politician are true, the sense of betrayal would only be sharper. The British have a saying that applies here: "Too clever by half."
We Americans might instead identify with Theodore Roosevelt's keen disappointment in one of his chosen justices: "I could carve out of a banana a judge with more backbone than that!"
We have no choice now but to replace those who crafted this legislative power grab, repeal the health care takeover, and restore the Constitution as the the Great Charter that guarantees the blessings of liberty to ourselves and our posterity.