The Thinking 

Why a Constitution at all?

June 29, 2012


HERE IS a concise and well-written statement by Thomas Patrick Burke of the Wynnewood Institute on why the Supreme Court’s ruling on Obamacare is wrong:

What is the purpose of a constitution? It is to limit the powers of government, for otherwise there is no necessary limit to them. Some people believe the purpose of a constitution is to create a government in the first place. But a government can be created without any constitution. The feudal governments of earlier times had no constitutions. Many countries that officially have constitutions pay no attention to them in practice because an individual or a party holds all the reins of power outside of the constitution. There was a time when George Washington could probably have done something similar. A constitution is necessary only if you wish to place specific limitations and restrictions on government’s legitimate powers.

Although the United States possesses a constitution, many people are not happy with it, however, and do not agree with it, but wish to abolish it. Their chief reason for this is that it is not based on “social justice,” or material equality and redistribution, but on ordinary justice, which upholds merit and desert instead. They want to see ordinary justice replaced by “social justice.” This is true in general of the Left. The health care act is a gigantic act of redistribution, which redistributes a very large amount of money from some classes to others and redistributes power from the people to the federal government. It is pure “social justice.” Its main supporters are precisely those who wish to abolish the constitution. The Chief Justice has now concluded he has an obligation to support the legislation as constitutional because it was passed by an elected government. But the aim of the Left is to use the constitution to abolish the constitution. It cannot be the obligation of the Supreme Court to assist in this. Rather its obligation is to save the constitution by saving genuine justice and not its spurious imitation, “social justice.” The Chief Justice has missed the larger picture, looking at the legislation from too narrow a perspective. He has apparently not asked himself the central question which every judge must ask: what is just? He has misunderstood what it means to be a judge at all, let alone the Chief Justice of the United States.

                          — Comments —

Carolyn writes:

I think Mr. Burke is underestimating the intelligence of the Chief Justice. Never get involved in a land war in Asia, never go in against a Sicilian when death is on the line, and never underestimate the abilities of a legal scholar to write a subtle decision containing wheels within wheels.

Step back and look at the big picture here:

1) We know that Obama threatened the Court in no uncertain terms–uphold this or else!

2) There are some tantalizing indications in the dissent (which is unsigned) that it may actually have been authored by Roberts, who then changed his vote late in the proceedings.

3) Roberts interpreted the Commerce, Taxing and Spending, and Necessary and Proper Clauses much more conservatively than they’ve been interpreted in, oh, say, our lifetimes. This is really, in most respects except the bottom line, a very conservative opinion.

4) His rationale for upholding is absolutely the flimsiest (i.e., most likely to be later overturned) one possible. He’s no dummy. Ask yourself why a very smart man would choose as a rationale an absolutely illogical one that the President, the Congress and every other court that heard this case rejected out-of-hand.

5) He repeatedly states that he’s not ruling on whether it’s a good law, and that the people can throw the bums who wrote this law out if they (the people) don’t like the law. In fact, that’s the note on which he ends the decision, the last thing he wants to leave you with. Again, ask yourself why.

What scenario can you come up with that explains all those points?

What if the Chief Justice (who has been a consistent conservative all along), far from going over to the dark side, is trying to protect the Court from being gutted by Obama and at the same time hoping that this decision will light a fire under opponents of the law and encourage them to throw the bums out and repeal the law? (Given the fact that Romney has raised over $4.6 million since the decision was announced Thursday, it’s looking so far as if that gamble might just pay off!)

More details and support here.

Laura writes:

If, as you say, Roberts ruled in this case purely for political reasons, i.e., to get Americans to overturn the law, then he is no conservative nor is he upholding his duty to abide by the Constitution.

I’m not sure where you get the idea that Roberts has been a consistent conservative. During his confirmation hearings, for instance, he stated that he would consider the “real-life impact” of judicial rulings. What’s conservative about that?

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