There was a very important Supreme Court case that for all the bitter hatred of the Left, Clarence Thomas always points too as where some Court jurisprudence went wrong: the Slaughterhouse Cases (1873).
In that case, the Supreme Court eviscerated an important clause of the fourteenth amendment, the "Privileges and Immunities" clause, and moved on to innaugurate the era of substantive due process.
Now Thomas concern is the implication of the decision in the Slaughterhouse Cases for Civil Rights jurisprudence, which he correctly thinks started to go awry then as to rationalizations, lately under the Commerce Clause, if the more important part of the decision was that Courts would for sixty years strike down State and sometimes Federal law on the grounds that it violated the substance of economic liberty.
It got out of that business in 1937 and the Switch in Time that Saved Nine, if some have wanted it to come back in other guises, which the Court threw a bone to in hinting at a Tenth Amendment argument imlicitly in the Medicaid expansion, possibly.
But what Roberts decided not to do was return the Court to a business it got out of a long time ago, which was to pass on the validity of laws that the representatives of the People voted for on the grounds of the limited powers of the government, if he threw a bone to people on the issue of the Commerce Clause that may have significant impact over time.
Madison and most of the Framers of the Constitution, which did not include Jefferson and his Jacobin enthusiasms for a reason, feared majority rule's tendency to deteriorate into a tyranny for this reason in Federalist 10:
"But the most common and durable source of factions has been the various and unequal distribution of property."
That might well have underestimated something Roberts cited properly, which is the feedback loop of elections, something he is well aware of because it is why he is Chief Justice as to abortion.
Roe v Wade was a classic use of substantive due process reasoning, if it's been elided over because of the taint attached to substantive due process reasoning in matters of economic regulation, and it generated as much as anything the wave of conservative judges that followed, since it motivated a lot of people to vote for conservative candidates that economic interests in the past had made them democrats, like Catholics.
In the end, the People indirectly elect the judges through their choice for President, as to feedback loops in politics and law, if that is a slow one.
Roberts counted on that feedback loop in his decision if Obamacare turns out poorly, and has protected it in his campaign finance decisions as well as to if people really don't like the consequences of law, there is thanks to his jurisprudence no bound on their financial expression of that unhappiness either, if of course that will be the wealthier element in society on average, if hardly exclusively so.
Moreover, the more the Left frames its arguments in that class term, the more they will in fact meet with resistance of people who think the United States can be many things as to policy, if not the Soviet Union. Western Europe also isn't the Soviet Union, although America grew wealthier than Europe in no small measure because it was freer economically, so if those who out of envy and lust for power wish to impoverish us out of a supposed concern for equality, and Pol Pot was nothing if not equal, if we vote for them, we can look in the mirror as to who's to blame.
finis
TIP:
Enter the amount, and click "Tip" to submit!
Spencer Thripworth III
Robert Fuller
Kerry Lauerman
Con Chapman
Gerald Andersen
Steven J. Gulitti
Salon.com
Comments
The ruling properly puts the issue of the ACA and the Individual Mandate back in Congress where it belongs and retains The People's options. The People's options (twice, for emphasis).
However, if the 26 states challenge wasn't focused on "State's Rights," and thus the difference between the people's federal and state sovereignty, they could have advanced a SDP claim. The problem with that is if they prevailed, adios Romneycare and some less-or-un predictable, unintended consequences.
The difference in Citizens United is corporations aren't citizens or people. The violation of SDP Roberts & Co. committed was against the citizen-sovereigns' state and federal privileges to regulate creatures of their own creation. All citizens don't create all people, but all citizens do create those fictitious concentrations of power and privilege called corporations.
With Citizens United, Roberts denies The People the options he affords them in the ACA ruling. Unlike The People's ACA or abortion opinions, such as can be judged by polling, The People's rejection of Citizens United is far from an even split or a slight majority. The People are unambiguously outraged at the result of 5 robed guys denying them their Right to a political approach to regulate entities The People create.
If anything resembles the arbitrary stripping of Rights of the Soviet Union, Citizens U fits that description to a T.
Besides, CU isn't about the 14th, it's about a speaker's corporate identity and, under the 1st amendment, their right to speak and the "right" of the public to hear them...even though 80%+ don't want to hear them.
That aside, CU is a reversal of Founding Principles and the laws they used to govern corporations to limit their power and influence. Back in that day, corps were forbidden ANY participation in politics...for damn good reason.
It is not the strongest way of saying corporations are people, although they are certainly capable of suing.
There exists a book called ....shoot.... have to look this up, open access orders is the point, in which the ability to freely incorporate as a right is laid out as important to freedom. There are agency issues as to the shareholders and management interests not being the same, per the corporations donating, but the same is true of any collectivity, unions included; careful what one asks for there. TR banned that in federal elections, but then people engjineered their way around that always. As long as people know who is paying, or so the argument goes, they will infer interest.
"Corporations are People" is a legal fiction with no basis in fact; a corporation's "personhood" can be wiped away with the stroke of a pen, and that happens every day without the least protest from Anti-Abortion advocates. The vast majority of people wisely reject the Court's ruling in Citizens United because it doesn't meet what ought to be the most obvious requirement of any law -- that it have some basis in reality.
The day a corporation dies of cancer (other than metaphorically) will be the day the Citizens United decision is accepted in the Court of Public Opinion.
The ACA decision, on the other hand, has far more basis in reality than does Citizens United. No reasonable person would argue that corporations don't already have too powerful enough voice in our politics, just as no reasonable person would argue that our healthcare system isn't in drastic need of reform.
Robert's may be a corporate conservative, but that alone doesn't make him a fool -- as is the case with so many apologists for the Freemarket Faith. Robert's is well aware the public now views the Court as just another partisan playground. Thanks to Bush v Gore and Citizens United, the Court's reputation has never been worse.
But speculation that Robert's sought to resurrect the Court's reputation with his unexpected decision in ACA is just that -- speculation. That speculation is belied by the Court's refusal to hear the State of Montana's case, which would have obviously necessitated revisiting the horrible decision in Citizen's United. If Robert's decision in ACA truly was motivated by rehabilitating the Court's reputation, he would have insisted that case be reviewed.
While it's always dangerous to speculate on the motives of another person -- particularly a person so far removed from one's own weltview -- I suspect Ted Frier has it about right -- beware of Greeks -- or legal geeks -- bearing "gifts". The fact that the ACA ruling also puts clamps on the Commerce Clause is evidence that ruling may well be a Trojan Horse.
I didn't decry the ACA decision in what I wrote, although Roberts had to twist around a lot to do that, if you read what I wrote here as to the logic of limiting substantive due proces implicitly as part of his ruling.
Law as above politics is something of a myth, but if it is totally a myth, get ready for martial law, as that is how republics finish if there is no bound on the will of the Demos historically speaking.
Yes, in a perfect world, we wouldn't need rules -- hell, in a perfect world, we wouldn't even need reason. But this ain't a perfect world, and like it or not, we need rules to protect the rest of us from the worst of us. Thus, there's every reason to limit what the Koch Bros, Sheldon Adelson and their ilk can do to our politics, and to deny that is to indeed force citizens to participate in a suicide pact.
Citizens United reminds me of nothing so much as that universally reviled dictum from the Third-World "one man, one vote, one time." That's always the outcome when religion -- including Freemarket religion -- is substituted for reason. And I'm pretty sure the Founders were with me on that.
The EPA exists because of non-profits, and now there is a literal army of such people, in which private industry hedges in that field, and so cannot be treated as a unitary actor as to corporate power. Granted, sometimes "Capital" lines up one way, but it is the nature of the relative to a command system, de-centralized in character, which leaves plenty of room for non-profits and like minded people to lobby for what they want.
As to the power of the corporate form in things you like, Universities are large scale actors in American politics as to creating an ideological climate that on average favors people like you as to faculty selection. Maybe that's a good thing, but it is quite real.