Initial Thoughts on the ObamaCare Oral Arguments

Today, the Supreme Court heard arguments over the constitutionality of the individual mandate in what is commonly called ObamaCare.  The transcript for the argument can be found here (audio can be located here).  My thoughts:

1. It was repeatedly argued by the Government that the mandate is necessarily because this market is "unique."  There are multiple problems with this argument.  For starters, the Government was never clear as to what "market" they were referring to, health care or health insurance.  They routinely switched between them, when in fact they are not interchangeable.  I can go to an emergency room without insurance.  And there is nothing unique about the health insurance market.  The government stated that "virtually everyone" and "everyone" is involved in the market (again, unclear as to which).  That's simply not true.  There are people who never use health insurance and can pay for health care on their own; so far, I've been one of them.  Maybe in the future that will change, but I'm smart enough to act accordingly. 
   
   There are markets in which literally everyone is involved, markets like food and clothing.  Medical care is not one of them.
   
2.  The government tried to argue that the health care market (whichever they were talking about) is unique because costs are shifted from the uninsured to the insured.  Again, this is not necessarily so: a great deal of medical costs could be and are paid out of pocket.  Most people do not experience major medical costs in any particular year.  The uninsured are, by and large, young people at less risk.  This mandate exists to force people who will not use medical care into the system at their cost, not for their benefit, in order to make the ban on using pre-existing conditions to determine insurance costs possible.  Without it, those health insurance companies go under and the whole system collapses. 
   
   Please note that this mandate isn't about helping the uninsured.  It's about using them as cash cows.  We place limits on Congress precisely to stop this sort of abuse.
   
3. The Government's understanding of economics is a muddled mess.  People not buying insurance and not using medical care are shifting costs to the insured and taxpayers?  Um, if the uninsured acted otherwise it is true that prices could be different, but that can be said of any other market in existence.  If more people bought guns, the prices of guns would be different; we do not thereby say people not owning guns are shifting the costs to those who do own guns.  We don't say those not buying Chevy Volts are shifting the costs to those who do. 
   
4. But what about those few uninsured who do end up costing the taxpayer by having the government pick up the tab?  Ok, riddle me this: how is giving some of them subsidized health care fixing that free rider problem?  These people can free ride because of government laws requiring healthcare providers to take care of them.  This is the result of unintended consequences of government interference, which of course requires more government interference, which will likely have unintended consequences requiring more government interference...
   
5. "Before you move on, could you express your limiting principle as succinctly as you possibly can?" ~Justice Alito.  That is on page 43; see if you can find the limiting principle to the Commerce Clause.  There isn't one.  The closest thing the Government comes to an answer is if Congress creates a regulatory scheme so freaking huge that everyone must be in it in order to work, well, so be it.  That's insane.  The larger the undertakings of Congress, the smaller become our individual rights according to the Constitution?  The whole reason we have the Constitution is to set boundaries to what Congress may do; the very fact that Congress wishes to go beyond those limits is not a constitutional argument that it may do so. 
   
6. This may very well come down to Justice Kennedy.  To Justice Kennedy: I know you don't want to make a big splash, that this is Obama's big political achievement and all.  It doesn't matter.  The Constitution, not the President's signature piece of legislation, is the Supreme Law of the Land.  We cannot set a precedent that each President may bypass the Constitution on one "Big Thing."  There is nothing about health care insurance that makes it unique.  The nation did not get entangled in this mess because it is something Congress needed to tackle, but because our President made it a campaign theme to get elected.  Again, there is absolutely nothing unique about this particular market in which you will find a limiting principle allowing an individual mandate in this case but only this case. 
   
7. It's hard to even comment on the Government's case, largely because it is incoherent.  They literally argued yesterday that the mandate is not a tax and today that it is (a point explicitly pointed out by some justices).  Their argument seems to be that the uninsured cost the insured, but the fact is most people don't experience large medical bills in any particular year.  Most that do are elderly, with insurance, in particular Medicare.  None of this points to a reason why Congress can compel people into commerce via the Commerce Clause in a way that doesn't open the door to future mandates. 
   
8. The opponents case is much clearer: the individual mandate is a novel idea that deserves strict scrutiny.  If it stands, there is no aspect of our lives that cannot be regulated, as not participating is just as much "commerce" as participating.  We have a government of limited, enumerated powers, and such an all encompassing power is inconsistent with a limited government.
   
   The opponents of ObamaCare were clear and concise.  The Government's case is a muddled mess, depending on shifting meanings of which market they are talking about, what shifting costs are, who they are shifted from and to, how they are shifted, and without a limiting principle on Congress should Congress decide to be really ambitious.  I've largely defended the opposition to ObamaCare, largely because it is the only position that can be defended.  Today's oral argument drove that point home, as commentators across the spectrum noted the Government's lack of preparation, in particular in comparison to the opposition.  That there are four justices that have never been in doubt is proof those four justices are intent on giving Congress unlimited powers come hell or high water; nearly every conservative justice has been considered a possible "Yes" vote, showing their intellectual honesty.  They want to see if this can work within the Constitution of limited governments, while their left leaning colleagues see no need to have such limits.  
   
   
   It's going to be a long wait until June. 

An Extremely Important Case

"The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained?"

~Justice Marshall, Marbury v Madison

"But there is another way to look at these precedents—that the Court either should stop saying that a meaningful limit on Congress’s commerce powers exists or prove that it is so."

~Judge Sutton, in his concurring opinion upholding ObamaCare

Last March, I compared the arguments over the constitutionality of ObamaCare as put forward by a liberal and a conservative circuit court decision.  The Supreme Court will take up the issue over the next three days. 

I cannot stress enough how important this case is.  I fully believe the bill should be struck down, not because it is too expensive (it is), not because the American People didn't want it (they didn't), nor because there was no transparency in the process (there wasn't); it should not be struck down because it undermines American civic virtue (it does), not because we were lied about how expensive it will be (we were), nor because it increases medical costs while reducing coverage and causing people to lose their current insurance. 

This individual mandate must go because if it stands, the Constitution will cease to be the bastion of our individual liberties.  If Congress can force us into commerce, it may regulate any aspect of our lives it so chooses.  The entire idea of a limited federal government of enumerated powers will dissolve if absolutely anything Congress would like to do can be justified by the Commerce Clause; as the Founding Fathers didn't just pen "Congress has carte blanche", I think it is safe to say this was not their intention. 

Those who like this bill will accuse me of wanting the bill struck down for purely policy reasons.  To them I ask, where is the limit of the Commerce Clause?  I will not accept the response that there is none.  If that argument is upheld, all Congress will ever need to do again is invoke the words "Commerce Clause" and declare the issue settled. 

Limits on what government may or may not do are extremely important.  I get it that the supporters of this bill think it is all sorts of awesome, but that does not change the fact that they lack a constitutional argument outside of Congress has absolute power to do as it likes.  If you annihilate the limits of government, you cannot then cite those same obliterated limits when another political party obtains power in Washington and starts using this new found mandate power in ways you don't like.  Why?  Because they'll simply quote your defense of ObamaCare. 

This is Pandora's Box.  Don't open it. 

Arizona Free Press Enterprise v. Bennett

The Supreme Court released its ruling today on Arizona Free Press Enterprise v. Bennett, a 1st Amendment case dealing with campaign financing. Under Arizona's law, once a candidate privately funding his own campaign hit a specific level of fundraising, all publicly funded candidates would receive a matching donation, dollar for dollar, paid by the taxpayers, to keep those publicly funded candidates matched with privately funded candidates. Arizona's law was struck down in a 5-4 decision, with the usual suspects on each side of the case and Kennedy joining the majority. The general idea is that candidates must not be required to fund opposing viewpoints. As each publicly funded candidate receives a dollar for every dollar raised above the limit set by the law on private funding, each dollar raised can lead to multiple dollars of spending against the candidate, paid for by the taxpayer.

For example: imagine there are four candidates, one privately raising money and three relying on public funding. The privately funded candidate hits the limit and now finds himself in a bind. If he raises another $1,000 to get his message out, his opponents receive a total of $2840 ($3000-6% to supposedly match the cost of private fundraising). Clearly, this freezes the privately funded candidates free speech, as any additional speech by him leads to a threefold increase for his competition paid for by the state.

There are two things I wish to point out about this case. The first is about campaign finance laws in general. Campaign ads may be annoying, but they are not evil. Democracy requires free speech, in particular during elections. Campaign fundraising is directed solely at propagating information for public consumption, i.e. free political speech. To limit how much people may say during an election is to limit their speech; there is no way around that.

Secondly, I wish to examine the dissent of Justice Kagan. The introduction to her dissent shows a lot about her understanding of the role of government and the role of judiciary within the government. She begins with an analogy between two states, both of which are supposedly corrupt because of campaign expenditures. I don't disagree with Justice Kagan that there is a strong tendency in democracies for candidates to buy support with government largess. I would recommend fighting this tendency by reducing the power of the government and hence the spoils they may kick back to favored voters. Justice Kagan takes a different view: remove (or at least seriously weaken) the ability of private citizens to speak and give that power to the government.

The problems here should be fairly obvious. Politicians do not just reward donors with paybacks; they tend to favor the lower class with free government programs and zero percent tax rates. Politicians are not elected by "special interests" but by the majority of all voters. I am appalled that anyone would believe silencing the voice of interests in America is the proper role of government! Massive amounts of money spent on campaigns is not a bad sign. I would have to imagine "elections" in Saddam's Iraq were fairly cheap affairs. There is no officeholder in this nation who holds that office due to "wealthy contributors." Every officeholder is elected by the majority of voters.

If you wish to reduce corruption, reduce the power of government to spend. The government has no proper role in either reducing the ability of some candidates to speak or of increasing the ability of others. I am not compelled to vote for the person with the most money, and if a candidate cannot raise funds, it is a good indicator that the candidate is not particularly favored by the electorate. The government has no compelling interest in holding some candidates down or raising others up; that is a power bound to be abused.

"By supplanting private cash in elections, public financing eliminates the source of political corruption."

Absolutely not. Increased government spending for favored groups can be promoted with public funding as well as private and will be more of an incentive for large numbers of lower and middle class supporters to vote for a candidate. This is still corruption. Public funding only eliminates the voice of private citizens from speaking their minds.

Kagan's focus on reducing political corruption and such via public funding shows a misplaced view for a member of the judiciary. The question at hand is not whether public funding increases or decreases corruption; the only question at hand is whether Arizona may pass such a law or not. Under the theory of incorporation, state governments are bound by the First Amendment, the sole role of which is to reduce the power of the government. It has been long established that government actions that do not outright ban speech but having a chilling effect upon it are illegal. Clearly, a law that threatens to pour cash into opponents coffers if a candidate raises money for political speech will cause a candidate not to raise money and hence not participate in speech. Kagan's emphasis is that of a legislator, not a judge. The law needs to be her sole guiding principle, not her idea of what our political society should look like.

Can Congress Regulate Inactivity?

But men may construe things after their fashion,
Clean from the purpose of the things themselves.

Cicero, from Shakespeare's Julius Caesar

President Obama's health care bill was passed one year ago today, but as most observers know, its fate is still in question. While the bill has had the necessary Legislative and Executive support, the question still to be answered will come from the Judiciary. That question is, is this legislation in accordance with the Constitution? The various benefits and costs of the bill appropriately belong to the Legislative branch and should be discussed in any effort to repeal the bill, but when discussing the legality of the measure, all such issues become moot. The only question at hand is, does the federal government have the authority to pass such a bill?

It is my belief that the bill is unconstitutional as Congress lacks the power to regulate inactivity. The act requires individuals to purchase "appropriate" health care coverage; failure to do so leads to fines or jail time up to five years.

The courts in this nation are generally bound by precedent, meaning current decisions are not supposed to radically differ from principles established in prior cases. This prevents chaos from overtaking our system of hundreds of courts, providing a final answer to legal questions. It is not iron clad, however, nor should it be. Poorly decided cases should be overturned, as should any case decided against the Constitution in the past.

Defenders of this act say the Commerce Clause and the Necessary and Proper Clause in Article 1, Section 8 provide authority for Congress to mandate each citizen buy health care. These clauses read:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

...

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Ironically, these were among the least and most controversial aspects of the Constitutional Convention. The commerce clause was not a source of much contention, as prior to the adoption of the Constitution states created their own money and imposed tariffs on one another. The confusion of this system created a wide acceptance of Congress to regulate trade to prevent such friction in trade across state lines and to increase the reliability of American currency abroad. Giving Congress the power to pass all laws "necessary and proper" was far more controversial, however, given the obvious propensity of lawmakers to declare anything they do necessary and proper.

Currently, these issues concerning the health care bill are passing through different courts. Decisions have been handed down supporting and opposing the constitutionality of the bill. Probably the two most representative cases are Judge Kessler's opinion in support and Judge Vinson's opinion in opposition. Both cases boil down to the same question: may Congress regulate individuals who are not actively participating in trade?

Judge Kessler, in support of the bill, says:

It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality. [pg 45]

Judge Vinson, in opposition, sees things differently:

It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. If it has the power to compel an otherwise passive individual into a commercial transaction with a third party merely by asserting --- as was done in the Act --- that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. [pg 42]

Both sides note that there is no direct precedence concerning regulating inactivity (Judge Vinson points to this as evidence that Congress has never understood the Commerce Clause to include such a power). There are, however, past decisions concerning the Commerce Clause that can give us a clue as to what "commerce" properly means.

Chief Justice John Marshall was one of the greatest and most prolific judges to serve on the Supreme Court; he is also known for expanding the power of the federal government, pursuing a fairly loose construction on the enumerated powers. However, he makes it perfectly clear in McColloch v. Maryland that the federal government is indeed limited to those enumerated powers.

This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted. [pg 405]

The problem, of course, is in determining the extent of those powers. Congress may do more than is specifically said in the Constitution, so long as those new powers are necessary and proper to the use of an enumerated power. Marshall takes a broad view on what Congress may do to further enumerated powers (unlike Thomas Jefferson, who believed any act of Congress had to be absolutely necessary rather than expedient towards achieving an enumerated power).

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional. [pg 421]

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. [pg 423]

The question now is what is meant by the commerce clause and whether the individual mandate is in pursuance of an enumerated power. Marshall gives us a definition in the case of Gibbons v. Ogden:

Commerce, undoubtedly, is traffic, but it is something more: it is intercourse. [pg189]

Intercourse is not a mental act within a single skull; it is the exchange of goods and services between different owners. This, however, is the most damning part:

They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass. [pg 203]

Commerce was understood to be an activity between people by Chief Justice Marshall, who as I said was a Federalist responsible for expanding the powers of the federal government. It would never have occurred to him, as it did Judge Kessler, that merely thinking about anything that could remotely be economic constitutes trade which Congress may regulate.

Unfortunately, the Supreme Court was strong armed into supporting President Franklin Roosevelt's New Deal policies. The meaning of commerce was greatly expanded, so that the actions of a single person could be regulated by Congress, as was decided by Wickard v. Filburn. I believe the Court erred in this decision, but for the sake of argument I will grant it, just to prove that even this decision did not push the Commerce Clause far enough to encompass this health care act. As the Court noted:

For nearly a century, however, decisions of this Court under the Commerce Clause dealt rarely with questions of what Congress might do in the exercise of its granted power under the Clause and almost entirely with the permissibility of state activity which it was claimed discriminated against or burdened interstate commerce. During this period there was perhaps little occasion for the affirmative exercise of the commerce power, and the influence of the Clause on American life and law was a negative one, resulting almost wholly from its operation as a restraint upon the powers of the states. [pg 121]

The Court admits that the Commerce Clause had been viewed as a check on the states from preventing trade, rather than as a tool for expanding Federal intervention into our lives. This new power, by their own admission, was a radical departure from the understanding of the judiciary for over a century. But even here, the Court required an individual to be participating in some activity before Congress could regulate.

Granting Congress the power to regulate inactivity, where no goods or services are even produced, much less exchanged, is to hand carte blanche to the federal government. There is not a moment of our lives that theoretically could not be used to influence interstate trade; that is enough for Congress to be able to regulate us in whatever manner they desire. Granting this conception of the Commerce Clause would eliminate the fundamental principle of limited government from our current system. The American people did not grant this power to Congress at the founding of our Republic, it has never been understood to be otherwise up until this point, and Congress may not assume such power to itself without an amendment to the Constitution. As no such amendment has been passed, the judiciary absolutely must uphold the provisions of the contract between the People and the Government limiting Congress' ability to regulate trade.

Thoughts Concerning Lochner v New York: Justice Holmes' Dissent

Lochner v The State of New York
198 U.S. 45
Argued February 23, 24, 1905.
Decided April 17, 1905.

Lochner is, in many ways, the most abused case ever to have been decided by the Supreme Court. While the issue of how many hours a person may work in a confectionery bakery is not particularly salient any longer, ideas such as the right of contract, judicial activism, and states' rights are, all of which are touched upon in this short case. I intend to skip over the majority decision and focus on the famous dissent of Justice Oliver Wendell Holmes, Jr. For the record, I believe the Court erred in its decision. The Court overstepped its boundaries in telling a particular state what it may or may not do, so long as due process is followed.

Justice Holmes' extremely short dissent is remarkable for the heights of wisdom and the depths of folly it achieves in so short a space:

"This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law."

Consider these three sentences. In the first sentence, Justice Holmes' errs in believing the case was decided by an economic theory rather than a constitutional theory, namely that the 14th Amendment prevents states from unduly taking away liberty or property. Regardless of the merits of that philosophy, it is inherently a judicial rather than economic theory. In the very next sentence, Mr. Holmes describes what a judicial activist, legislative from the bench, would do if that justice believed the Court should base controversies based on their opinion of the facts at hand rather than on the law. He rightly condemns this stance, but then proceeds to go too far by apparently stating the majority may impose any such law it wishes, when our Founding Fathers set up our government in a way as to specifically avoid tyrannies based upon majority factions. Indeed, Justice Holmes goes so far as to say apparently tyrannical state laws cannot be overturned by the Court, which I believe goes much too far and ignores both the 14th Amendment and Article IV, Section 4 of the Constitution, providing for a republican form of government to the states.

"The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."

Whether he meant to do so or not, Justice Holmes rightly points out that all government taxation and regulation is restrictive upon personal liberty. Here we come to the crux of the matter. We establish government solely in order to safeguard the rights of Life, Liberty, and the Pursuit of Happiness (paraphrased version of property, courtesy of the philosopher John Locke), as is stated in our Declaration of Independence. Governments which become destructive to those ends may be abolished, according to that same Declaration. Government requires a sacrifice of some of these rights to protect the rest, but where is the line to be drawn? At what point does the government cease to be the protector of these God given rights and transform into the greatest threat instead? Justice Holmes gives no answer, but his willingness to abide by the decision of any majority is distressing to an extreme.

"But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Justice Holmes is correct in a technical sense that our Constitution does not blatantly adopt any particular economic theory, but he is wrong to assume all economic theories can be compatible with the Constitution. A paternalistic state, by definition, removes people from the pursuit of happiness and substitutes itself in their place, assuming the government knows better for the people's well being than the people do. Every tyrant believes the same. Should individuals be debased enough to despise the pursuit of happiness in their own lives and wish to outsource those decision to another is their own personal decision, but to impose that notion, with force, on others who do not agree is to deny them one of their inalienable rights. Overarching governments leave no outs for those who wish to live their own lives; they face a government perverted in its aims, destroying our rights rather than preserving them.

"General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss."

The very reason we have this Constitution, with the Bill of Rights and succeeding Amendments, is to prevent the "dominant opinion" from being imposed tyrannically! Just about any dominant opinion is likely to be met by a minority opinion, composed of rational and fair men who believe the proposed statute infringe upon fundamental principles as have been understood throughout the history of our nation. Liberty means to be free to act or not as we see fit; a dominant opinion that forces us to act or not act in a particular way is the exact opposite of liberty.

Justice Holmes illustrates two extremely important principles for our judiciary, though he only seems to agree with one of them. In the first, justices must respect the rule of law and put this higher than their own policy judgments. We elect legislators to create the law; we place justices on the bench to make rulings based on those laws, not their own desires. But secondly, the Constitution is the supreme law of the land, which no majority may override save by a Constitutional Amendment. Wherever the government and the dominant opinion overstep their enumerated powers, wherever they cease to be the protectors of our unalienable rights and transform into the greatest threat instead, the judiciary must step in. While we cannot abide judicial activism, judicial abandonment is the equivalent of abandoning the concept of limited government and individual rights in favor of an unchecked tyranny of the majority.

Thoughts Concerning Citizens United v. Federal Election Commission

Citizens United v. Federal Elections Commission 558 U.S. ___ (2010)
Argued March 24, 2009
Reargued September 9, 2009
Decided January 21, 2010

This recent decision touching on election finance laws concerning corporate contributions has created quite a stir over the last few weeks, even leading to a Presidential dressing down face to face with members of the Supreme Court during his State of the Union. That this case or its decision should be so controversial surprised me until I noticed a common thread among those who disagree with the outcome. Dissenters almost always argue that this decision is wrong because it will allow corporations to spend a great deal of money in future political campaigns, causing all sorts of woe. Whether that will actually be the case or not is actually irrelevant, however. The question at hand is whether the Federal Government had the authority to pass such a law at all, not whether the law was good or bad policy. Such policy outcomes should not even be raised in discussions concerning Citizens United as they are moot if there is no Constitutional authority allowing such laws to stand.

First off, let me remind the readers that Article VI of the Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

That same Constitution is amended in the first Amendment to state:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Simply put, 1) judges are bound to rule only on laws that are in accordance with the Constitution. 2) The Constitution explicitly prohibits Congress from passing any law abridging the freedom of speech. 3) Laws prohibiting speech are not in pursuance of this aspect of the Constitution; ergo, 4) such laws are not laws at all and judges have no responsibility to follow them.

I do not think anyone will question the deductive logic of this syllogism. The question now is, does the Bipartisan Campaign Reform Act of 2002 abridge free speech? I believe it did, as did the Court. If a corporation published any advocacy within 60 days of an election, it would have committed a felony. Clearly, there is a law banning an action, and in this case that action is political speech. The 1st Amendment exists mainly for the protection of political speech, which is considered to be the heart and soul of democracy itself. I ask my reader to please read the 1st Amendment again, in particular the part stating Congress shall make no law abridging the freedom of speech; note there are no exceptions made. Any case of Congress banning political speech by an American citizen or groups thereof (the right of the people peaceably to assemble) is unconstitutional.

It really is that simple. Congress cannot ban peaceful political speech (no exceptions); this bill banned speech for peaceful corporations; ergo, it is unconstitutional. Critics of this ruling need to show how Congress has the authority to ban political speech by corporations within the framework of the Constitution. The 1st Amendment is perfectly clear on this, so I am not sure where a critic could even begin to defend the constitutionality of such a ban, which probably explains why most critics have taken to populist attacks not based on the Constitution. There are significant flaws with that argument, too, but as I mentioned, that point is moot until some critic presents a convincing case that the Federal Government has the authority to ban such speech.

Thoughts Concerning Roe v Wade

ROE v. WADE, 410 U.S. 113 (1973)

Argued December 13, 1971
Reargued October 11, 1972
Decided January 22, 1973

Roe v Wade is arguably the most famous and controversial case ever decided by the Supreme Court. It touches on a number of issues that will likely never be completely settled, such as when life begins, when rights begin, and the flexibility of interpretation of the Constitution. The question at hand is not whether abortion should be allowed or not; the question is, can the state bar women from having this procedure? While this Court declared the states could not, I maintain that the Court did not base this decision on the Constitution, that the Constitution clearly leaves this power with the states, that abortion is not a fundamental or explicit right protected by the Constitution, and that this was a political decision the Court had no right to make.

Summary

I intend to summarize only the aspects of the case dealing with the final argument. Other sections of the case will not be summarized, though to avoid the pitfall of waiving off anything inconvenient as not relevant, I will explain why particular sections are not worth going into detail.

Sections I-IV of the majority's decision deal with whether the plaintiffs had standing on this issue, ruling that Roe does while another plaintiff, "Doe", does not. I do not see a controversy worth discussing herein these sections as they state that the plaintiffs can indeed bring this case to court, something I do not disagree with. They have no bearing on the actual decision, however, and are therefore not relevant to this discussion.

Section V states the plaintiffs claim, that abortions are a protected right under the 14th Amendment or "in personal, marital, familial, and sexual privacy" that was supposedly "discovered" in Griswold v Connecticut (a case worth discussing in its own right at another time).

Section VI is a strange section in that it details the history of legal and moral thought on abortion going back to Greek times. It constitutes a large portion of the case's text. Unfortunately, it does not deal with the Constitution; while this information may be interesting, it is not indicative of whether there is a Constitutional right to abortions. This is, in legal terms, called obiter dictum. It has no place in this decision as it in no way informs us as to how the Constitution should be interpreted on this issue. This section, though verbose, is irrelevant to the actual discussion at hand.

Section VII resembles section VI but focuses on reasons used to justify abortion bans in the United States. However, as the Court explicitly makes this section the basis for its decision, it needs to be summarized. Three particular reasons are put forth: Victorian concern over "immoral conduct," the medical aspect for the mother, and the protection of prenatal life. The State of Texas did not choose to defend the first and was dropped. The second reason was supposedly used during an era when such procedures were dangerous but states still need to regulate such procedures. The third argument stands if the State has an interest or duty to protect life or the potential for life.

Section VIII is the heart of the issue in that it attempts to find a Constitutional basis for a right to abortion. The Court explicitly acknowledges that "The Constitution does not explicitly mention any right of privacy"; however, the Court argues that rights discovered in the penumbras of the Bill of Rights include a right to privacy. They conclude that "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." However, the Court also recognizes that the State has a duty to protect life at some stage, so an unlimited right to abortion does not exist.

Section IX deals with objections made by both parties to this middle ground decision. The Constitution does not state when life begins; all mentions of "persons" appear to be postnatal. The Court also acknowledges that the woman's "right to privacy" is murky since it involves another living being, the fetus, which the state may at some point protect. Again, prenatal beings have never been accorded the full rights of law according to the Court's history.

Section X acknowledges the State's progressive interest in protecting prenatal life as the pregnancy continues. States have a "compelling" interest at "viability." Texas' law was too broad and therefore was unconstitutional.

While Section XI claims to summarize the case, it actually points out something new: "For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Abortions prior to this point cannot be regulated.

Criticism

The Court's decision is based exclusively on the concept of "privacy." However, as the Court itself admitted, there is no Constitutional provision for a "right to privacy." I find the argument that such "rights" can be found in the "penumbras" of legal terms rather frightening. Their argument can almost be summarized as "I claim such a right in this murky legal region; dare prove me wrong." A great many horrible things can be defended with a similar argument. How do I know a right to rape does not exist in those "penumbras?" Sounds ridiculous, but try proving it is not there. Our legal theory needs to be based on more solid ground.

This decision was based primarily in 14th Amendment to the Constitution, along with the 9th. This Amendment consists of five sections; 2-5 deal with the right to vote for representatives, judicial and executive functionaries, Confederate debt not being a responsibility of the United States, and Congress' ability to enforce this Amendment. Only the 1st section has relevance today. It states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The supposed right to abortion is not going to be found in the first sentence concerning citizenship. The privileges and immunities of the citizens of this nation are laid out in the Bill of Rights and following Amendments; none of them say abortion is a right, so this does not apply, either. In theory, this law could apply to men if they could become pregnant; that there is a biological difference between men and women is not a violation of the equal protection clause.

The only part of the 14th Amendment that could relate to abortion is whether the State is depriving the pregnant woman her life, liberty, or property sans due process. Punishment of abortion could take any of those forms (capital, imprisonment, or fines). The question is, are laws restricting abortion in accordance with due process? The procedural aspects are hard to challenge: this issue is not one delegated to the Federal Government; no Amendment or provision in the Constitution explicitly prohibits this law; the law was created by a republican form of government guaranteed by the Constitution. Where, exactly, was "due process" violated in banning abortions?

The actual impact of having to take a baby to term is that the woman cannot remove the infant from her body until nature chooses to do so. This might be seen as the State violating a woman's liberty in controlling her own person. However, this is not a punishment; the State did not impregnate her. In the vast majority of cases, the woman had an option to have sex and exercised it, an act of liberty which carries repercussions the woman may not pawn off. Those concerning rape are a different matter; I am not certain the State cannot prohibit abortions there, either, as again it is not the State inflicting a punishment. The 14th Amendment does not, in any way, shape, or form, defend a "right" to an abortion.

What about the 9th Amendment? It states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This is a problematic Amendment, along with the 8th, that I believe the Founding Fathers erred in including. However, it is still the Supreme Law of the Land and has legal force...if it can be understood. And so I pose to those who use this Amendment to defend any case, what are the "rights" mentioned in this case and how did you discover them? How does a proposed "right" become valid under this Amendment while the ridiculous "right to rape" does not? Until a sound theory is put forth for determining what rights this Amendment speaks of and how we shall know them, I propose we employ the 10th Amendment, which reserves all powers not expressly delegated to the Federal Government to the States and to the People, who may give such powers to the States as they see fit via republican forms of government. That being so, the people of Texas gave the power to restrict abortions to the State. The Constitution is actually fairly clear here: this is a power reserved to the States to deal with as they see fit and the Supreme Court has no jurisdiction to overrule the People of Texas or any other State that may choose to restrict abortions.

Note the distinctions between my opinion and that of the majority's. I am capable of citing the Constitution without resorting to magical hidden realms of penumbras. I take the areas supposedly protecting such a right and analyze them word for word.

In terms of shear reason, this case was a disaster. The Court actually claims that after the 1st trimester abortions can be regulated but not before. Where in the Constitution does the Court find this? It doesn't even claim such a foundation, but rather than the dictum explaining the past of abortion. Even if that history is accurate, the Court does not have any right to impose its views on the people. Such decisions are left to the democratic institutions that represent the people. The Court has a right and a duty to step in when the Federal Government exercises powers not delegated to them; when the State Governments exercise powers delegated to the Federal Government; and when either violates express rights protected in the Constitution. Outside of that, however, the Court performs an illegal and tyrannical legislative function that the Constitution does not give it legitimacy to perform. This is clearly such a situation.