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The Spectacle Blog
That is really the fundamental question at stake in the Obamacare case. Many countries are governed by unwritten constitutions, a patchwork of court decisions, legal and political precedents, laws, and customs that shape the boundaries of government rather than any single document. Over the past eighty years, the United States has increasingly moved to that system as well. But even the post-New Deal, post-World War II consensus has always tried to appeal to our written Constitution for authority, which its champions have pretended to revere as a living document.
This case is the biggest conflicit between the unwritten constitution that gives the federal government virtually unlimited power to, as Laurence Silberman puts it, “forge national solutions to national problems” and the actual Constitution on which Washington bases its legitimacy, a document that created a limited federal government of enumerated powers.
Those powers, by the way, are delegated by the states and the people. Who delegated the power to impose an individual mandate? In our system, only through a supermajority of states can the people delegate powers to the central government. Are we now a unitary state in which new powers can be delegated simply by giving one candidate running on a particular platform 53 percent of the national popular vote? (And even that delegation would be dubious, since Obamacare wasn’t even written when Barack Obama was elected president, and he originally campaigned as an opponent of the individual mandate.)
These are the questions the Supreme Court will answer. And as I argue today on the main site, we can’t be sure even the Republican-appointed justices will get them right.
Jack in Wi| 11.14.11 @ 2:19PM
Obamacare, Roe vs Wade, The Patriot act, and undeclared endless wars forever. The Constitution has been used for toilet paper since the New Deal and is going downhill fast.
RJ| 11.14.11 @ 3:06PM
Our Founding Fathers knew that the Constitution was not self-enforcing. It is up to the people to ensure that those in power honor the limits placed on them.
James Madison said it well in his October 17, 1788 letter to his friend, Thomas Jefferson: "My own opinion has always been in favor of a bill of rights; provided 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 supposed it might be of use, and if properly executed could not be of disservice. … 4 because experience proves the inefficacy of a bill of rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current."
Bill| 11.14.11 @ 3:55PM
Yes, we do. Loud and clear.
Ken (Old Texican)| 11.14.11 @ 4:25PM
James, finally it is we the people who will decide, not 9 justices. The Second ammendment assures that. If our courts and our Congress fails to defend the constitution as they swore to do, then we have no other choice do we?
P. Retzel| 11.14.11 @ 9:06PM
When you start talking about second amendment remedies for what is fundamentally a political disagreement that could and should be decided at the ballot box, you make the Paulbots look sane and reasonable. Get a grip. Damage that took generations to accumulate will not be undone quickly enough to suite the MTV generation or the OWS crowd but that's no excuse for replacing your brain with bull feces.
LC JB | 11.14.11 @ 10:48PM
No sir ! We left issues being a matter of political disagreement long ago. We really aren't interested in fixing things to suit the folks you mentioned. They are the problem ! We ask for a limited and honest government, not one that can and will use any method they choose to circumvent the Will of the People. The issue IS that the ballot box has been folded, spindled and mutilated such that people the founders would have never considered having the same political 'weight' as those who do have 'skin in the game'. The real Americans out here can't even rely on the courts to fairly adjudicate our grievances. We're simply people that can see NO way out of the dilemma, save a miracle that perhaps a merciful G-d may provide us. You have many millions feeling their backs against the wall. Don't scoff at our reasoned views of this as BS or a simple "political disagreement' that insulting to many here as well as a likely red-herring your tossing in.
LC JB | 11.14.11 @ 10:52PM
PS- and I sure as hell, NOT a PaulBot. They're the ones using playground epithets in response to honest debate.
LC JB | 11.14.11 @ 10:41PM
Ken- As we like to say Door #1 is the "soapbox"- The Tea party, et al. Door #2-the 'ballot' box, which is abandoning us with nearly half the country of the 'recipient' class, expecting and demanding more of others' labor, while contributing nothing, and the final and ultimately deciding, Door#3- the "ammo box". I fear Door #1 is less influential than we would like, especially with a democrat and establishment republican party, along with a hopelessly biased MSM, all gunning to minimize, demonize and discounting it's importance as a real grass-roots representation of We The People. Door #2 at this point in our history is probably incapable of providing us with critical relief for the Republic, leaving us with what we all have feared for a long time, the 'Ammo Box'. I do believe that we are very, very nearly to a 2nd Amendment solution for a movement consciously hell-bent on converting our beloved Republic into a failed model of some European Fabian Socialist Phantasy state.
It is truly a sad day, and our detractors are completely clueless of what they face in opposition.
P. Retzel| 11.14.11 @ 11:26PM
If you're going to go there then spell it out. In this "second amendment solution" who do you picture yourself aiming your guns at? And how do you imagine that situation working out for you?
LC JB | 11.15.11 @ 12:13AM
There will be total chaos initially, that's a certainty. At some point the government will attempt to save themselves by ordering the US Military to attack citizens domestically, followed by local government doing the same with police forces. This will be a mixed bag of results. I see large numbers of both police and military as ignoring those orders. After some finite period of time, there will arise a more-or-less organized militia composed of ordinary armed citizens, as well as the aforementioned folks unwilling to fire on their neighbors. Certainly no one can see any real detailed ways in which this will happen therefore trying to goad me into making some sort of 'crystal ball' cognition I won't go any farther. I assure you I'm NOT an extremist paramilitary type, armed to the teeth and living in some type of fringe commune/encampment. There are many, many of us ordinary citizens that see this coming and the specifics of it we can't see, and we're praying that it doesn't have to happen. I'm not ready to give up on processes we have in place at the moment. The issue is that there are a lot of hot-heads, locking and loading and waiting for some unforeseen event putting them over the edge. As for who I am my guns at? Simple, anyone trying to take them away. That will pretty well suffice for recognizing an enemy. The situation will NOT work out well for perhaps many thousands of us willing to hit the reset button. It's not about us, I took an oath a long time ago and it didn't have an expiration date on it. I will sacrifice my life, so my children and grand-children and generation's of peoples kids and grandkids have the opportunity to live in the marvelous Republican form of government our ancestors built. I do not expect to live through it all. I also have no aspirations to become a national or state for that matter, type of leader. I can command a small unit of men (and probably women this go-round too) but that's the limit of my skill set, as other than a 5th columnist type. In summary you're barking up the wrong tree trying to paint me into being something YOU think those of us sharing this common viewpoint are like. It ain't so.
Ken (Old Texican)| 11.15.11 @ 8:13AM
LC JB
Pretty good outline, sir. I'm a pretty good prophet.
check it out.
www.americaalonesaidno.com
George S| 11.14.11 @ 4:52PM
Well, at least we still abide by the age restrictions imposed for Congress and the President.
Ken (Old Texican)| 11.14.11 @ 4:55PM
George,
you forgot the smilee face.
PattyMor| 11.14.11 @ 5:08PM
Hey don't you see the Social Security, Medicare, Medicaid, Snap, Public Housing, Welfare, Education, Energy, Healthcare clauses right next to the Right to Privacy? I'm sure they're all there since men in Black Robes have said they're there.
Now they wouldn't lie to you, would they?
Clint| 11.14.11 @ 6:40PM
This Is Why There Is A Tea Party Rebellion.
Had Enough Yet ?
Rise Up In Rebellion.
Dixie Pixie| 11.14.11 @ 8:34PM
Who have got to be kidding me.
The 10th Amendment has been dead and forgotten for over a century.
That was the one who was going to keep the Federal government from expanding to its current size.
Simon Templar| 11.15.11 @ 1:26AM
Last time I checked I saw a written copy in Washington DC under glass. I think you can get a copy at any local bookstore as well.
The question is are you going to uphold it, fight for it, and live by it? Yes or No, please.
Simon Templar| 11.15.11 @ 1:41AM
There are 310 million people in The United States that support 3.1 million federal workers. That is the "1 percent and 99 percent" that you should be concerned about and the relationship that these two groups have with each other politically, and economically, and relative to the constitution.
Paul| 11.15.11 @ 7:26AM
The only way change will happen is to get people of change on the ballet and then to vote for them. As long as we keep sending the same BS spewing party line lifers on the ballet there will be no change. When my choice is lifer GOP or lifer Dem we end up with no choice. As long as the media decides who they want to endorse and ignore there sworn duty to report the news without prejudice, we will never have a choice. Dr. Ron Paul has a plan and yet the media may mention Dr. Paul as an after thought. Dr. Paul is either second or third depending on which poll you use yet you have no clue of this fact as the media continues to ignore the voice in the wilderness telling us how to solve the national debt, healthcare, foreign policy, and taxation. Vote for change. Vote Dr. Ron Paul the only insider who knows the constitution and has not been corrupted by the system.
Tim the Enchanter| 11.15.11 @ 10:18AM
What does a dance performed in slippers have to do with anything? Unless, of course, you meant "ballot" instead of "ballet".