United Liberty

As the Supreme Court will hear oral arguments this week on both Hollingsworth v. Perry - the challenge to California’s Proposition 8, which banned gay marriage in the state - and U.S. v. Windsor - the challenge to the 1996 Defense of Marriage Act (DOMA), which recognized marriage at the federal level as between a man and a woman – state and federal laws effecting marriage equality face their first legal confrontation with the Judicial Branch. Herein I make the constitutional case for marriage equality that respects both individual and religious liberties.

Last week, Senator Rand Paul proposed removing federal recognition of marriage - for everyone – telling Bob Costa at the National Review:

Dr. Nathan Griffith is an associate professor of political science at Belmont University in Nashville, Tennessee. He teaches constitutional law, European politics, political economy, and methodology. He is currently on sabbatical while he finishes a forthcoming textbook on American government.

On the last day of the year past, Louis Michael Seidman wrote an op-ed in the New York Times advocating that we “give up on the Constitution,” as our following it had left us “teeter(ing) at the edge of fiscal chaos.”  He asks why “a lame-duck House, 27 members of which were defeated for re-election, (should) have a stranglehold on our economy?  Why does a grotesquely malapportioned Senate get to decide the nation’s fate?”  The heart of his objection comes with this:

“Imagine that after careful study a government official—say, the president (sic) or one of the party leaders in Congress—reaches a considered judgment that a particular course of action is best for the country.  Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action.  Is it even remotely rational that the official should change his or her mind because of this divination?”

Gun rights had been enjoying a miniature golden age.  Following the Supreme Court decisions of Heller and McDonald, gun rights advocates have kind of been skating on cloud nine.  Even the halfhearted pushed by President Obama for more gun control, spurred on by violent crime south of the border, sputtered and died following “Operation Fast and Furious” came to light.  Unfortunately, that seems to be changing.

From Politico:

More Americans prioritize gun control above Second Amendment rights by the widest margin since President Barack Obama took office, according to a new poll released Thursday in wake of the Sandy Hook Elementary School shootings.

Forty-nine percent of those polled said it’s more important to control gun ownership, compared to 42 percent who say it’s more important to protect Americans’ rights to own guns, according to a Pew Research Center Poll.

Those of us that oppose President Barack Obama’s health care law are still no doubt wondering what exactly happened on Thursday when the Supreme Court, in a 5 to 4 decision, opted to keep the individual mandate in place under the Taxing Power of Congress. If you’re still trying to figure out the details of the decision, Philip Klein has put together a good primer on the ruling, breaking it down as simply as the bizarre, confusing opinion can be explained.

The decision does give a break to President Obama, who has been struggling with the weak economy and shaky polling as of late. But, as Michael Barone notes, it may all be short-lived thanks to the law’s unpopularity and now the headache that comes with a clearly defined tax hike on Americans.

But what do we make of the decision itself? There is a lot there to parse through, but here are some points that may help explain parts of the decision and the tenuous future of a push to repeal ObamaCare.

Well, it’s the day after Obamacare was ruled Constitutional. I thought I would wake up feeling much like yesterday: dejected. But a funny thing happened. I read a couple of pieces that left me optimistic about the long term effects of yesterday’s ruling.

The first one was a great article by Sean Trende, over at RealClearPolitics. Not only does he juxtapose the Roberts opinion with Chief Justice John Marshall’s in the Marbury v Madison case, but he also offers some interesting insights:

1. The law still has a good chance of not being implemented.

Let’s start with Roberts’ presumed crass political considerations. Namely, as a conservative Republican, he would not want the health care law implemented. But if Mitt Romney wins the November election, it is highly likely that Republicans will win the Senate as well. Right now, Romney probably has no worse than a 50-50 chance of being elected. I honestly don’t think in the long run this changes things that much. The next jobs report will have a much greater impact on Obama’s re-election bid over the long haul than this decision.

If Republicans win the Senate and presidency, the law is doomed. They will use reconciliation to repeal it, or to gut it. In fact, since the court essentially allowed states to opt out of the Medicaid expansion, there’s a chance that the bill would no longer reduce the deficit if a large state like Texas opted out. This makes the use of reconciliation much easier.

2. Doctrinally, The Federalist Society got everything it wanted.

SCOTUSblog reports that the Supreme Court has upheld the individual mandate and the rest of Patient Protection and Affordable Care Act, though the “federal government’s power to terminate states’ Medicaid funds is narrowly read.” Writing for the majority, Chief Justice John Roberts explains that the individual mandate is a tax.

The decision is certainly interesting because Solicitor General Donald Verrilli argued that the individual mandate wasn’t a tax back in March. And that was an argument with which members seemed to agree.

Stay tuned for a link to the opinion and further updates.

[10:22am] SCOTUSblog notes that Roberts’ vote, not Kennedy’s, saved ObamaCare. It was 5 to 4 decision.

[10:24am] Based on what we know right now, the implication is that the Commerce Clause was not expanded as a result of the decision. But we can’t say for sure until we see the opinion of the court.

[10:26am] Remember when President Obama said the mandate wasn’t a tax.

[10:27am] The Commerce Clause is untouched by the opinion. The majority only ruled the mandate constitutional as a tax, via SCOTUSblog: “Justice Ginsburg makes clear that the vote is 5-4 on sustaining the mandate as a form of tax. Her opinion, for herself and Sotomayor, Breyer and Kagan, joins the key section of Roberts opinion on that point. She would go further and uphold the mandate under the Commerce Clause, which Roberts wouldn’t. Her opinion on Commerce does not control.”

[10:49am] And here is the opinion.

As you know, the Supreme Court did not rule yesterday on the Patient Protection and Affordable Care Act. Many observers speculated that they would not rule on the Arizona immigration case and ObamaCare on the same day. Everyone is now looking to Thursday, which is the last day the Supreme Court will deliver opinions for the current term.

The thinking right now is that Chief Justice John Roberts will write the majority opinion, which leads opponents of ObamaCare to believe that, at the very least, the individual mandate will be struck down. Sen. Mike Lee (R-UT), who clerked for Justice Samuel Alito, is among those that express this thinking, as noted by Philip Klein:

Sen. Mike Lee, R-Utah, a former clerk to Justice Sam Alito, said that if Chief John Roberts writes the majority opinion in the health care case, as some have speculated, it would make it “substantially more likely” that the Supreme Court would strike down the individual mandate.

Following the release of today’s decisions, SCOTUSblog’s Tom Goldstein suggested that the decision on the constitutionality of President Obama’s health care law would “almost certainly” be written by Roberts, based on the authorship of recent opinions.

“It certainly would not surprise me,” Lee told the Washington Examiner, standing outside the Court after this morning’s opinions where handed down. “It would not be unusual for a Chief Justice to assign to himself a decision of monumental importance. This certainly fits into that category.”

For the last few days the Supreme Court has listened to a case in which they have been asked to decide the constitutionality of the individual mandate of the Affordable Care Act.

This case is not about health care. It’s not about lowering premiums or rectifying the problem of the uninsured shifting healthcare costs to the insured, it’s not about increasing access to health care. It is simply a debate between whether or not the federal government is adhering more to the principles of individualism or collectivism.

The individual mandate is based upon the principle of collectivism which is the opposite of the principle of individualism,which the federal government was originally founded upon. But over the course of the last 225 years after the Constitution was ratified more and more laws have been passed that were based upon the ideas of collectivism and most have been upheld as “constitutional” by the Supreme Court.

Ayn Rand wrote in her awesome essay, Textbook of Americanisms, that “Individualism holds that man has unalienable rights which can not be taken away from him by any other man, nor by any number, group or collective of men. Therefore each man exists for his own sake and not for the sake of the group.”

On the other hand the Individual Mandate which forces every American to purchase a product is based upon the ideas of collectivism because it’s the majority who are using the force of Government to coerce individuals to act in a certain way.

In Textbook of Americanisms, Ayn Rand explained what the principle of collectivism really boils down to:

Today, the Supreme Court will take up perhaps one of the most important cases we’ll see in our lifetime. Over the next three days, members of the nation’s High Court will hear arguments on the constitutionality of the Patient Protection and Affordable Care Act (PPACA), also known as ObamaCare.

While we’ve seen several important cases over the 20 years that have dealt with economic and civil liberties — including property rights, free speech, and habeas corpus, Department of Health and Human Services v. Florida deals directly with the limitations placed on Congress by the Constitution.

The question of whether or not ObamaCare is good policy is meaningless to the Supreme Court. The issue at hand isn’t that law won’t keep health insurance premiums, or because it raises taxes or that it is unpopular with the American public. The only thing that matters, or at least should matter, is the Constitution.

During today’s oral arguments, the Supreme Court will hear an hour of arguments on whether or not legal challenges to the individual mandate are barred by the Anti-Injunction Act. The reason for this question is because the penalities that would be imposed by the individual mandate won’t be in place until 2014. Since no one has been necessarily impacted by the policy, the theory is that the court could punt until it’s implement.

This week marked the 220th anniversary of the ratification of the first ten amendments to the U.S. Constitution, collectively known as the Bill of Rights. Many Americans today would be surprised to learn that the Bill of Rights was adamantly opposed by some of the Founding Fathers, including Alexander Hamilton. Why? Hamilton explained in Federalist No. 84, declaring “I…affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous…For why declare that things shall not be done which there is no power to do?” This alluded to the rule of “inclusio unius est exclusion alterius” (the inclusion of one thing necessarily excludes all others), whereby the very enumeration of certain rights as being free from regulation implied that all others were subject to the general legislative powers of the Congress.

Hamilton understood that the Constitution strictly limited the powers of the federal government, and feared a bill of rights would open the door for expansion of congressional power. James Madison, the “Father of the Constitution”, agreed there was not necessarily a need for the Bill of Rights, but was also not opposed to one. As he explained in an October 1788 letter to Thomas Jefferson, “My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.”