Sunday, July 01, 2012

Did CJ Roberts exercise the Judicial Restraint conservatives have been asking for?

Judicial restraint is the idea that judges should defer to the will of lawmakers whenever possible, turning to the U.S. Constitution on only the rarest of occasions in order to nullify a duly-enacted law. One of the earliest and most influential proponents of this idea was Supreme Court Justice Oliver Wendell Holmes (1841-1935), who routinely criticized his fellow justices for striking down legislation and preventing “the right of the majority to embody their opinions in law.” As Holmes once put it, “If my fellow citizens want to go to Hell I will help them. It’s my job.”

Holmes was a great hero to the left-leaning activists of the Progressive era, who enjoyed reading his sharply-worded dissents attacking the Court’s majority for striking down various economic regulations. But judicial restraint has also had its champions on the American right. Conservative legal icon Robert Bork, for example, famously argued that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities,” and that judges should therefore act accordingly by deferring to lawmakers on most matters.

Chief Justice John Roberts also believes in judicial restraint, or judicial modesty, as he described it during his 2005 Senate confirmation hearings, and that belief came shining through yesterday in his majority opinion in National Federation of Independent Business v. Sebelius. Although Roberts rejected the Obama administration’s novel claim that Congress may force Americans to buy health insurance as part of its power to regulate interstate commerce, he nonetheless found the health insurance mandate to be lawful under a different constitutional provision, Congress’ power to “lay and collect taxes.”

“The text of a statute can sometimes have more than one possible meaning,” Roberts wrote, before proceeding to embrace the only possible meaning that would allow the statute to survive. “The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution,” he continued. “Granting the Act the full measure of deference owed to federal statutes, it can be so read.”

And so judicial restraint reared its head. In fact, as an authority for his deferential maneuvering, Roberts turned to none other than Justice Holmes, citing the famous jurist’s concurring opinion in the 1928 case of Blodgett v. Holden, which declared, “between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”

In other words, the tie goes to the government.

Many of Roberts’ critics will no doubt be tempted to denounce this ruling as an example of judicial activism. But in fact the opposite is true. By employing a method of statutory interpretation designed to give Congress and the White House the benefit of the doubt, Roberts exhibited the hallmarks of judicial restraint. “It is not our job,” he declared, taking yet another page from Holmes’ playbook, “to protect the people from the consequences of their political choices.”

Today’s conservatives frequently complain about the dangers of judicial activism. Perhaps now they’ll be more alert to the dangers of judicial restraint.



Legislative Dishonesty: The Indian Child Welfare Act doesn’t promote child welfare

By Thomas Sowell

Nowhere is political rhetoric more shameless — or more dangerous — than in the pious names that politicians give to the legislation they pass. Perhaps the most egregious example is the so-called Indian Child Welfare Act, which callously sacrifices the welfare of Indian children.

Time and again, children with some American Indian ancestry, who have been adopted by families that are not of that ancestry, have been suddenly taken by law from the only parents they have ever known and transferred to some distant Indian reservation, to live among strangers in a world they know nothing about.

You might think that the sight of bewildered, desperate, and weeping children in court, crying out for Mommy and Daddy as they are forcibly removed from people who have cared for them for years, might cause those who are seizing them to relent. But no! Such children are routinely sacrificed on the altar of the Indian Child Welfare Act.

The child might be two years old or twelve. But the legal rights of a biological relative and tribal authorities trump the well-being of the child, even if that biological relative has been a complete stranger to the child.

Some years ago, the chairman of the U.S. Civil Rights Commission visited a 14-year-old girl who had been removed from her adoptive parents and was living on an Indian reservation, where she was miserable. But when the story came out, outrage was directed not at those who had ruined this girl’s life, but at the member of the Civil Rights Commission who had dared to intrude on the sacred soil of the Indian reservation.

Similar things have happened to black children raised by white foster parents. There is no congressional legislation in these cases, but the dogmatism of social workers and so-called social-welfare departments can lead to the same results. However, the absence of federal legislation enables those judges who have common sense, and common decency, to prevent similar tragedies.
What is behind such perverse racial policies? Theories, ideologies, and presumptions of superior wisdom and virtue. It has been known for centuries that there are people, especially among the intelligentsia, who love humanity in the abstract but are not all that concerned about what happens to the actual flesh-and-blood human beings who are subjected to their grand visions and policies.

If the vogue is that children should be raised in their own racial culture, that overrules other considerations. As T. S. Eliot said, long ago: “Half of the harm that is done in this world is due to people who want to feel important. They don’t mean to do harm — but the harm does not interest them. Or they do not see it, or they justify it because they are absorbed in the endless struggle to think well of themselves.”

But the rest of us need to be on guard against their rhetoric. Nor is the Indian Child Welfare Act the only piece of legislation whose effects are the direct opposite of its title.

The Obama administration introduced legislation called the “Employee Free Choice Act.” What would it do? Destroy the free choice of workers as to whether or not they want to be represented by a labor union.

The National Labor Relations Act of 1935 gave workers the right to a federally conducted secret-ballot election, in which they could vote to have a union or not have a union. But, as more and more workers in recent years have voted not to have a union, union bosses have pushed for a law to allow this decision to be made without a secret ballot. This would allow union organizers to use pressure and coercion on those who don’t want to have a union.

Since union bosses contributed both money and manpower to the election of Barack Obama, it is hardly surprising that he was willing to reciprocate with the Employee Free Choice Act.

In this case, the act failed to pass in Congress. But President Obama accomplished some of its goals by appointing pro-union members to the National Labor Relations Board, whose regulations tilted elections in the unions’ favor.

If you can’t be bothered to look beyond rhetoric to realities, don’t complain about bad laws, or even about the degeneration of law itself into arbitrary rule over what was once a free people.



The worldwide Leftist program: Creating dependency

It's already well underway in Britain, where ever larger numbers of young people choose a life on welfare rather than work


In an age of the globalization of everything from bird flu to bad debts, we still try to compartmentalize, pretending that what happens in Athens, stays in Athens. Thus, too many Americans fail to connect the massive attempt at wealth transfer (and wealth destruction) behind Obamacare to the wild irresponsibility of southern Europe's socialist government models that have led multiple states to practical, if not yet formal, bankruptcy.

But problems ranging from the Democratic Party's efforts to turn illegal immigrants into still more electoral slaves, to Greek or Spanish demands that hardworking Germans pick up their lifestyle tabs, all have the same roots: The Left's lust for power and its preferred means of seizing power today: Addicting the least-productive and utterly unproductive members of society to giveaway programs funded by the diminishing number of citizens willing to study, work and pay taxes.

Obamacare isn't about alleviating suffering. It's about keeping poor people poor by enmeshing them in a web of addictive hand-outs that keep them dependent on government. Every leftwing "social" program has the ultimate goal of destroying incentives for self-improvement, while piling on the incentives for parasitical behavior.

Whenever a leftist politician speaks of "social justice" or "justice" of any kind, get ready to write a check to the government, if you earn an honest living. To Leftists, social justice means only two things: First, empowering the Lumpenproletariat (society's bottom-feeders, against whom Karl Marx warned us, by the way) to create an electoral mob that will always vote to preserve and increase hand-outs; and, second, punishing responsible citizens who have done something constructive with their lives.

In Europe itself, we see a sharp north-south divide (with France, under its new idiot-left president, opting to align itself with the bankrupt south, the financial equivalent of Napoleon's invasion of Russia). In the north, most governments pursue sound fiscal policies and restrain their socialist impulses within the limits of affordability. In the German case, two traditions have resulted in one of the world's soundest economies, despite soft-core socialism: The old, unfashionable, academically derided "Protestant Work Ethic," and the worthy old Prussian admonition to live a life of Mehr sein als schein ("Live within your budget and don't flash bling"). [Literally: More being than appearing -- JR]

In Europe and here, the Left has proven that the old saying "There's no free lunch!" is a lie, at least for a while. There's a free lunch every day, as long as someone else can be conned or forced into picking up the tab. Eventually, though, the famine years arrive.

Here at home, it's often been observed that a fundamental problem is that "we've made poverty too comfortable," thus removing incentives for people to study, work and better their lives. That's absolutely true: When you willfully contribute nothing to society throughout your lifetime, while using food stamps to buy chips, candy, soda and frozen dinners, and then bill the government for your self-inflicted health problems while couch-surfing through a "life of poverty" that includes a cell phone and a flat-screen television, well, there are, unfortunately, plenty of human beings content to be narcotized into slavery on the left's vast, soul-destroying electoral plantations. The left uses government giveaways to bribe the poor to stay poor.

Why? The left craves power. Once upon a time, it craved power for imagined noble ends. Now it's just about the power itself. Leftists know full well how soul-crushing conditions are in the ghettos, barrios and poor-white communities in which they confine their supporters, keeping them on a life-support drip-feed of benefits (brilliantly constructed so that anyone who tries to fight their way out of the poverty trap immediately loses multiple advantages reserved for those content to remain willing slaves).

What has our Left done for the poor except to addict them to poverty? What has the European left done for the poor except to promise a fairy-tale ending, only to leave the "workers and peasants" to face the Big Bad Wolves of mass unemployment, endless debt and lifelong disappointment?

There is no dignity in living on hand-outs. But that's just fine with the Left: The destruction of individual dignity, the reduction of pride from a matter of real achievement to status based on running shoes, is one of the left's most vital tools in subverting our republic ("How ya gonna keep ‘em down on the block, once that they've read Ayn Rand?" The ultimate nightmare of the American left is a literate minority population). Note that, on the rare occasion when a minority celebrity calls for personal responsibility and educational reform, the left attacks him or her immediately, savagely and enduringly.

For that matter, what has our self-declared-as-black president done to improve education for minorities and reduce minority unemployment? How many black or Latino executives, exactly, worked at Solyndra?

For me, the Obamacare agenda was never really about the health of the American people. Instead, it's another wealth-transfer (and wealth-destruction) tool that removes yet another incentive for individual citizens to better their lives. It's also about further dismantling our sense of personal responsibility, broadening the sense of victimhood yet again. The "free lunch" of universal health care would be paid for by those who work in order to provide endless care, premium for those who refuse to work or to take any responsibility for their own physical condition.

The message of the Left long has been: Nothing is your fault, you're all victims of the dark forces of free enterprise ("Freedom is slavery," as Big Brother put it). Obamacare was designed to extend that message to: "Eat like a pig, smoke like a chimney, drink life a fish and stay put on your sofa-and, as long as you vote the Left's party line, you'll get the same benefits as someone who has worked steadily for fifty years to support a family.

The worst addiction crisis in our country isn't to illegal drugs, but to life-numbing government giveaway programs that purposely kill ambition among the poor.

Oh, and the Left's recent discovery of the suffering middle class (suffering because of the Left's bankrupting programs)? Don't believe it. The academic left has always despised the petty bourgeois, while merely envying the wealthy. The middle-class shopkeeper or small-town entrepreneur was always immune to the Left's inanity, while at least some of the rich could be conned into a guilt-trip and big donations.

As for those of us with jobs, the Left wants us to be in debt, in doubt, and hurting. The new dream of the American Left is to turn productive citizens into a new class of victims. And, true to the European model the American left emulates, our leftists close their eyes to the fact that somebody has to make money to pay taxes, or, eventually, there's no funding for anything. When it comes to balancing the books, the Left has always taken the Mr. Micawber view that "Something will turn up."

Welcome to Greece: It's always about wealth transfers, even as the last wealth disappears.

At a time when the American Left dreams of turning ten million illegal immigrants into ten million permanently impoverished voters, it's time to relook the entire leftist experiment we've endured for the last half-century. Food stamps? Sure, for the deserving or disabled. But no junk food or desserts of any kind. Computerized supermarket inventory and check-out programs could easily manage this-but it won't happen, because politicians from both parties would rather foster obesity than take on potato-chip manufacturers. And let's routinely recheck eligibility and make it a felony to sell food stamps to a third party. Benefits fraud? Lose all government benefits for the rest of your life. Voting rights? Time for a step backward (the Left's outrageous objections to voter ID laws show just how corrupt the Democrats have become). No individual or family tax return? No right to vote. No high-school diploma? No right to vote. Citizens don't just have rights. Responsibilities come first.

As for health care, I support enlightened rationing that, while allowing for "no-fault" serious diseases or accidents caused by others, incentivizes citizens to take at least some responsibility for their own health. If I bust my ass to stay in shape, I shouldn't have to pay for extravagant care for the shamelessly self-indulgent. Past a reasonable point, you should have to pay your own way if you've abused your body for decades. If you want endless platinum care for ailments you've inflicted on yourself, take out your checkbook.

Not a single cowardly politicians in either party will admit it, but without laws that foster personal responsibility for our health, our health-care system will bankrupt us, whether Obamacare can be repealed or not.

Frau Bundeskanzlerin Merkel, stick to your refusal to pay off the credit cards of spendthrift Greeks. My fellow Amerians, stand up for the fundamental value that, above all, made this country great, the belief that personal responsibility is the building block of freedom.

I would not undo "social" programs that help the genuinely needy, but I'd damned well make sure that "needy" meant physically or mentally helpless to help themselves, not lazy, cynical and content to remain illiterate.

There's a line from the 1960s that I used to trot out for a laugh. Faced with today's degenerate entitlement culture, I've come to see authentic wisdom in the saying. It's from the Reverend Ike, the Little Richard of evangelists, who, when asked about his Cadillacs and jewelry, said, "The best thing you can do for the poor is not to be one of them."

Work hard, pay your bills, and take responsibility for your own life. That, my friends, is true American patriotism.




List of backup or "mirror" sites here or here -- for readers in China or for everyone when blogspot is "down" or failing to update. Email me here (Hotmail address). My Home Pages are here (Academic) or here (Pictorial) or here (Personal)


The Big Lie of the late 20th century was that Nazism was Rightist. It was in fact typical of the Leftism of its day. It was only to the Right of Stalin's Communism. The very word "Nazi" is a German abbreviation for "National Socialist" (Nationalsozialist) and the full name of Hitler's political party (translated) was "The National Socialist German Workers' Party" (In German: Nationalsozialistische Deutsche Arbeiterpartei)


1 comment:

DailyKenn said...

Legislative Dishonesty: The Indian Child Welfare Act doesn’t promote child welfare

Trail of tears?