Politics, not qualifications, will decide the Gorsuch nomination

Commentary by James Shott

Senate Democrats are doing the Stanky Legg Two-step in order to dance away from confirming a nominee to the U.S. Supreme Court who is a federal judge provably as devoted to following the U.S. Constitution and the body of federal law as any nominee in many years.

Judge Neil Gorsuch, whose record on the bench of the 10^th Circuit Court of Appeals is as nearly perfect as one can hope to achieve, is precisely the type of judge the Founders had in mind when they wrote the Constitution, a man in the mold of the late Antonin Scalia, whose vacancy he has been nominated to fill.

Testifying before the Senate Judiciary Committee, Gorsuch said his law clerks had compiled information about his ten years on the bench of the 10^th Circuit, which covers about 20 percent of the U.S. He has participated in more than 2,700 appeals, 97 percent of those cases were decided unanimously, and he was in the majority 99 percent of the time. How much more mainstream can one be?

His record clearly identifies him as a mainstream appellate judge, as has the American Bar Association, not an ideologue, or someone who plays favorites. Nevertheless, an exercise designed for confirming a qualified person to sit on the nation’s highest court has devolved into a political war.

U.S. law is a system of rules that govern behavior. Rules and laws must be followed and not following laws has penalties. In the U.S. laws are not static; they can be amended or repealed, but they must be amended or repealed through a specific process. However, some people – primarily liberal Americans – believe that this process may be circumvented by the rulings of activist judges when laws get in the way of their inclinations.

Gorsuch’s adherence to the law is the primary objection to his nomination, although some say it is also because the Republican majority in the Senate refused to take up the nomination of Judge Merrick Garland for the seat Gorsuch is now nominated for.

This, too, points to a Democrat anomaly. A principle relating to this situation arose in the U.S. Senate in 1992 when then-Sen. Joseph Biden, D-Del., who was chair of the Judiciary Committee, said on the Senate floor that filling Supreme Court vacancies “that would occur in the full throes of an election year,” must be held to a different standard. Citing “a majority of his predecessors,” Biden said that the president, George H.W. Bush, should delay naming a replacement, which would de-politicize the nomination, at least for a while.

In March of last year, “in the full throes of an election year,” President Barack Obama ignored the advice that Biden, who was then his Vice President, had offered on the matter years before and nominated Judge Garland. The Republican Senate Majority Leader, Mitch McConnell, R-Ky., however, liked Biden’s theory, and would not schedule hearings for Garland.

Democrats want judges that decide legal issues on whether their decisions fit the passions of the moment or have their preferred impact on the people, and therefore disapprove of the necessity to appoint judges that follow the Constitution and the law.

Minority Leader Sen. Charles Schumer, D-N.Y., is upset with Republicans over the Merrick Garland issue, and will therefore not vote to confirm the highly qualified and squeaky-clean Gorsuch.

He spent 20 minutes on the Senate floor urging his fellow Democrats to oppose Trump’s nominee. Gorsuch, he said, “was unable to convince me he would be a mainstream justice who could rule free from the biases of politics and ideology.” And he said that Gorsuch “is someone who almost instinctively favors the powerful over the weak, corporations over Americans,” Schumer said. “He declined to answer question after question with any substance,” he said, referring to Gorsuch’s refusal to express his political beliefs or to prejudge issues that may come before the Court.

Others have equally irrelevant objections:

** Sen. Kamala Harris, D-Cal.: "As U.S. senators, we have an obligation to also examine a nominee's legal approach and ask whether he or she considers the impact of those decisions on our society and the daily lives of our people."

** "I cannot trust that President Trump is acting in the best interest of our country or our democracy and that I cannot support moving forward with his choice for the court," said Sen. Patty Murray, D-Wash.

** Virginia Democrat and former vice presidential candidate Sen. Tim Kaine explained that, “After meeting with Judge Gorsuch and reviewing his testimony and past decisions, I’ve observed that he has repeatedly taken an activist approach to cases involving a woman’s right to make her own decisions about her health.” Kaine clearly does not understand judicial activism.

Senate Democrats threaten a filibuster to prevent a confirmation vote and ending the filibuster requires 60 votes. With 52 Republican senators, that will require the support of eight Democrats, and will be difficult to achieve.

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Following the lead of former Nevada Democrat Harry Reid when he was Majority Leader, Republicans can use the “nuclear option” to allow a simple majority vote to confirm Gorsuch. Majority Leader McConnell has pledged that one way or another, Gorsuch will be confirmed.

Presidential campaign has not focused much on important issues

Commentary by James Shott

The presidential campaign has not adequately addressed the issues and problems facing the United States, but the next president has a mountain of problems needing attention.

Looking at polls from major news organizations – CBS News/New York Times; ABC News/Washington Post; NBC News/Wall Street Journal – from May through October of this year, the economy/jobs is the leading issue in all polls, followed by the combination of terrorism, national security and immigration. Tam Warner Minton, writing on The Huffington Post blog, suggests that the Supreme Court is the most important of the issues.

All of these issues are important, but two of them – The economy/jobs; and the U.S. Supreme Court – are already affecting the country.

The thing to remember when evaluating the way Donald Trump and Hillary Clinton approach these problems is that one of them loves and lives for big and bigger government, while the other plainly prefers the private sector.

Looking at the economy and job creation, Trump has actually created jobs through his hotels, golf courses and casinos; while Clinton’s decades in the public sector leaves her with no real experience in this important sphere.

Her approach to jobs and the economy will rely on increased regulation, reducing taxes on the middle class and making the rich pay more. The National Center for Policy Analysis (NCPA) analyzed the Clinton plan and said, “As currently presented, the Clinton tax proposals would increase taxes on high-income earners, reduce the exceptions to the corporate income tax, and increase estate taxes, in an effort to raise more revenue and bring greater equity to the current U.S. tax system. According to our NCPA-DCGE model, the plan would generate $615 billion in revenue over 10 years, with most of that increase coming from the federal personal income tax. The cost to the economy would be a net loss of 211,000 jobs by 2026, and a reduction in real GDP of 0.9 percent.”

Clinton has criticized Trump’s tax cutting policy, deriding it as “Trumped-up trickle-down,” a cute phrase, but a horribly ignorant economic reality. The NCPA explains why this idea will out perform Clinton’s: “Rather, insofar as tax cuts raise after-tax profits, they induce taxpayers to expand investment and, in so doing, wages, and jobs. Insofar as they raise after-tax wages, they induce taxpayers to enter the labor force and work longer hours. This is not the result of money “trickling down” from one person to another but of the reduction of disincentives to invest and work that are inherent to any tax code,” and especially one that punishes people with money to invest in job-creating economic activity.

Where the U.S. Supreme Court is concerned, it can cause great harm to the nation if Justices stray from their Constitutional limits, and they often do.

In response to a question in a presidential debate, Clinton said: “If I have the opportunity to make any Supreme Court appointments, I’m going to look broadly and widely for people who represent the diversity of our country, who bring some common-sense, real-world experience.”

This answer displays a shocking lack of understanding of the job of the Supreme Court, and the purpose and meaning of the U.S. Constitution. The Court’s duty and function have nothing to do with ideas of diversity, or the supposed benefits of real-world experience. Its job is essentially to resolve legal disputes, being sure always to uphold the principles of the Constitution.

The Constitution is alive, but it is not a “living document,” the meaning of which would change with the winds of societal preferences. The Founders based the Constitution upon important principles that were intended for the ages. They understood that at some future point there may be a true need for modification, and they created a mechanism for doing so. That mechanism is not simply a majority of Supreme Court Justices wanting to make a change; it is a clear and difficult process, difficult by design to prevent foolish modifications to satisfy some momentary desire.

There are essentially two approaches to how justices interpret the Constitution: conservatism/originalism, which honors and adheres to the actual language and original intent of the Constitution; and liberalism, which is a willingness to interpret the language for some social or political end, which results in making law from the bench instead of in the Congress, as the Constitution requires.

Packing the Court with Justices who do not honor the original meaning of the Constitution in order to achieve some narrow ideological objective is a form of subversion, and Hillary Clinton is married to that goal.

Donald Trump, on the other hand, understands the great wrong of that goal, and has vowed to nominate judicial conservatives/originalists to fill Court vacancies.

The left likes for things to be easy: easy border control and easy citizenship; easy changing of the Constitution; easy to vote through early voting and without a picture ID; and easy to live off of government support, rather than facing the rigors of a job, among them.

Such laxness and failure to uphold traditional standards makes it much easier to turn America to liberalism/socialism through subversive measures than trying to persuade people to accept it. We must resist these efforts.

Cross-posted from Observations

What's really important in this election

Commentary by James Shott

Almost everyone agrees that this is the most unusual election in his or her lifetime. We have two major party candidates with the highest disapproval ratings that anyone can remember. And each candidate’s supporters ignore the negatives and continue to support the candidate.

Democrat Hillary Clinton comes from decades in the political sphere as the wife of a governor, the wife of a president, a U.S. Senator and Secretary of State. Republican Donald Trump comes from decades in the private sector as a businessman and entertainment show producer, having first entered political life for the 2015 Republican primary.

Both have a long list of negatives their political enemies hope will disqualify them in the eyes of voters. However, there are important differences between them.

It wasn’t Donald Trump who for personal convenience as Secretary of State flaunted the rules and established procedures, taking the unprecedented step of evading the official secure government email system in favor of a private email server for government business, including classified information, then had the server scrubbed, destroying thousands of messages that were not only government property, but evidence, and then couldn’t provide a credible excuse for any of that.

It wasn’t Donald Trump whose possible-criminal situation caused untold irregularities in the operation of the State Department, the FBI and the Justice Department, including a “chance” meeting on an airport tarmac between the Secretary of State’s husband and the Attorney General of the United States, putting dozens of public servants in the position to destroy their credibility and trustworthiness to save Secretary of State’s backside.

It wasn’t Donald Trump whose vast experience in government in the U.S. Senate and the State Department resulted in neglecting dozens of requests for increased security prior to the terrorist attack in Benghazi, Libya resulting in the death of Ambassador Chris Stevens and three other brave Americans, and then tried blame a clear terrorist attack on an obscure Internet video, resulting in jailing the video’s producer.

And it wasn’t Donald Trump whose frequent profanity-laced tirades insulted and denigrated Secret Service agents and White House staffers.

But that was a long time ago, and since all of that was a long time ago, it probably isn’t relevant that it also wasn’t Donald Trump who worked for the Congressional committee investigating the Watergate cover-up many years ago, and was fired for lying.

But it was Donald Trump who took some money from his father, invested it in business and created hotels, casinos, golf courses and television shows. Some of his creations didn’t work out, as is not uncommon in the world of business. Luminaries such as Henry Ford, Walt Disney, F.W. Woolworth, Albert Einstein, and Bill Gates also sometimes failed. The best major league hitters fail to get a hit six or seven out of ten times.

It was Donald Trump who claimed business losses of nearly a billion dollars on tax returns many years ago, cancelling an equal amount of income over several years, using provisions in the tax code to reduce taxable income, just as most every American that pays taxes does, through deductions for such things as dependents, mortgage interest and charitable giving.

For taking legal tax deductions Trump has attracted mountains of criticism from his betters, who somehow twist this into meaning he doesn’t care about the country, or the military and dozens of other things. But the hundreds or thousands of people that work in his businesses do pay taxes, and that is significant.

And, yes, it was Donald Trump who managed to anger his primary opponents and many Americans with his petulant personal attacks of those who opposed and challenged him. His far-from-perfect manner leaves much to be desired, and his locker room vulgarity, spoken in private 11 years ago, really got people fired up. But if some rapper had used those same words as lyrics, it’d be #1 on Billboard.

Apparently, it’s a more serious offense to say things that offend someone than to put national interests at risk, to lose $6 billion of State Department funds and generally fail to competently run the agency you’ve been entrusted to run, and make millions giving $250,000 secret-content speeches to Wall Street banks that you publicly criticize. By virtue of merely having been elected a U.S. Senator and appointed as a cabinet secretary, you are thus qualified to be president, even if the best you did in those positions was inconsequential or harmful.

Strangely, people are more offended by Trump’s words than Hillary Clinton’s vicious attacks on her hubby’s numerous sexual victims and conquests, her position on coal mining and the Supreme Court, and her comments supporting open borders, spoken in a private $250,000 speech.

What Trump said that hurt someone’s feelings or shocked their sensibilities is worse to many than that Clinton put personal convenience ahead of national security and failed to protect State Department personnel who were in harms way.

Voters must put their hurt feelings aside, adjust their perspective and focus on the serious issues confronting the next president. They must understand that Clinton’s hubris already put national security at risk, and she will continue Obama’s dangerous, destructive, and unconstitutional policies.

Cross-posted from Observations

We must restore conservative principles to the courts

Commentary by James Shott

The raging controversy over filling the Supreme Court vacancy of Justice Antonin Scalia, whose tragic death unleashed a political firestorm over whether President Barack Obama should nominate his successor, or whether the next president should make the nomination, must be looked at in perspective.  It is a true waste of time giving more than a bemused passing notice to the ranting of Democrats, who accuse the Republican-led Congress of all manner of wrong-doing in its opposition to a nomination by Obama, all the while hypocritically ignoring their own precedent-setting actions over the last 10 or so years, when they wrote the book on how to oppose Supreme Court nominations. This process is and has long been a political exercise.

And, at least one high-ranking judge proclaims that the High Court itself is politicized. Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit, and a senior lecturer at the University of Chicago Law School, explains this in a commentary published by The Washington Post, where he wrote, “Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.”

We expect Congress to be heavily political, and while the president belongs to a political party and is chosen through a political process, we expect the administrative agencies to apply regulations and laws in a fair, neutral, non-political manner.

Judges at all levels are expected and presumed to be impartial in applying the law and are sworn to follow the precepts of the U.S. Constitution. They must resist allowing their personal ideals or political leanings to affect the rulings or opinions they produce. The Constitution created three co-equal branches of the government, therefore all branches must employ restraint in order to remain within their Constitutional boundaries.

Posner excuses the tendency of judges to fall back on their personal and political beliefs because there is no clear instruction from the Constitution in situations the Framers could not have foreseen more than 200 years ago. Justice Scalia, however, had little trouble following the Constitution’s language when deciding his position on cases before the Court.

Scalia, you see, was a “conservative” judge, an “originalist.” According to the Oxford Dictionaries “conservative” means: “Holding to traditional attitudes and values and cautious about change or innovation.” Applied to the federal judiciary, as viewed by believers in strict constructionism and originalism, the term means adhering to the meaning of the words in the U.S. Constitution and the Bill of Rights as they were understood by those who wrote those documents at the time they wrote them.

Thus, judicial conservatives rely on the original language and intent of the Constitution, while judicial liberals assert that the Constitution must be a “living” document, the exact meaning of which changes with the times or depends upon who is interpreting it. Such a view allows for “judicial activism.”

“Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning,” according to a definition from the Heritage Foundation. “As such, activism does not mean the mere act of striking down a law,” it also means making law from the bench.

But the Constitution gives Congress the authority and responsibility to make law, not the judicial or executive branches, and that plainly stated Constitutional principle is clear and unmistakable.

Judges should consider things like whether Jefferson, Franklin, Madison and the others would have approved of the size, power or cost of the federal government, given the abuses that produced the Revolution and the deliberate efforts to restrict all of those features. Or, whether they would have allowed the Supreme Court or the executive branch to misappropriate the law making authority of the Congress.

If you still doubt that the Supreme Court has become an activist court, consider this tidbit from Justice Ruth Bader Ginsburg, who told The New York Times that “she was fully engaged in her work as the leader of the liberal opposition on what she called ‘one of the most activist courts in history.’”

Making laws from the bench and judicial expansion are not products of judicial conservatives, whose adherence to original intent maintains a stable legal foundation. That is unpopular among judges who want to expand the authority and power of the courts.

The Supreme Court must not reinterpret the Constitution. If what might prompt the activists to vote in favor of one side or the other in a case before the Court is something that is indeed a good thing for the country, and passes the standard of constitutionalism, then it must be sanctioned by an act of Congress, not the courts.

The growth of activist judges argues for restoring judicial conservatism to the nation’s highest court. President Obama is unlikely to nominate such a person. Reports say that the list of potential nominees for the Scalia seat on the Court has been reduced to five, and four of them contributed to Obama campaigns.

Cross-posted from Observations

The politics of filling vacancies on the United States Supreme Court

Commentary by James Shott

Lovers of the United States Constitution were deeply saddened by the passing of Supreme Court Associate Justice Antonin Scalia, a champion of the Constitution’s original meaning.

His death has triggered a political crisis and there is now great weeping and gnashing of teeth across the land over finding a replacement for him. The need to do so is constitutional, but the weeping and gnashing is political.

Scalia was a believer in the idea that words have specific meaning that should not be subject to the whims of mere mortals who think that the Constitution is rendered moot because many decades have passed since those words were carefully configured, and humanity and America has evolved, or because some ideological group finds the original language inconvenient.

The challenge is finding a suitable replacement for Scalia, who believed in textualism: reading the actual language; and originalism: understanding the written words. He and others who value the meaning of words and who honor the Founders cannot abide the concept of a “living Constitution,” a document that means only what a particular group wants it to mean to satisfy a particular desire at a given time.

Addressing the idea of changing the Constitution’s meaning for convenience or ideological preference, Scalia asked the Woodrow Wilson International Center for Scholars in Washington, D.C., in 2005, “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?”

And in his dissent in the United States v. Virginia in 1996, he wrote: “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”

So much of the nation’s problems result from changing the meaning of words to allow things that would appall the Founders, if somehow they were to return tomorrow to check up on how their wonderful creation is faring. Would they recognize their country? Would they want to live here? Would they feel appreciated enough to dare to walk the streets?

Walking the streets would subject them to such foreign concepts as that the term “founding fathers” is now regarded by some as a sexist phrase, even though all of the people who created the U.S. Constitution were, in fact, men. If they then passed an appliance store with a TV in the window, they might see Bernie Sanders offering Americans “free everything” in return for their votes, see Hillary Clinton barking and screaming at her audience, or observe the President of the United States routinely circumventing the U.S. Constitution, perhaps inducing chest pains, and maybe producing their second death, this time from unnatural causes.

The Supreme Court is supposed to be an impartial arbiter, using the plain language of the Constitution to guide it in rendering constitutionally appropriate rulings. A “living Constitution” that means different things at different times is no governing document at all, not so different from a compass that instead of pointing always to magnetic north may be redirected by a swarm of bees, a strong wind, or a Democrat caucus.

As Republicans and conservatives work to prevent the virtual certainty of a Barack Obama nominee who is similar in ideology to himself, Clinton or Sanders, or Justices Kagan, Sotomayer or Ginsburg, Democrats and liberals decry those efforts as unconstitutional and political, conveniently ignoring their own past behavior.

In 2007 long-time New York Democrat Sen. Charles Schumer told the American Constitution Society that if a new Supreme Court vacancy opened up during the rest of George W. Bush’s term, Democrats should not allow Bush the chance to fill it, except in extraordinary circumstances.

“The Supreme Court is dangerously out of balance,” he said. “We cannot afford to see Justice Stevens replaced by another Roberts, or Justice Ginsburg by another Alito.” At the time he expressed that sentiment, Bush had 19 months left in office, nearly twice what Obama has left today. During the same speech, Schumer lamented that he hadn’t managed to block Bush’s prior Supreme Court nominations.

And then there is Obama himself, who recently said he hoped "that we can avoid the political posturing and ideological brinksmanship that has bogged down this process, and Congress, in the past.”

But in January 2006, Sen. Obama joined 24 colleagues in a futile effort led by Sen. John Kerry, D-MA, to filibuster the Supreme Court nomination of Samuel Alito, explaining to George Stephanopulos on "This Week" that he would "be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values.…"

And that bastion of Constitutional behavior and Senate tradition, Sen. Harry Reid, D-NV, who was then Majority Leader, said in 2005, “Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote.”

Liberals and Democrats, stumbling down Hypocrisy Highway, in addition to trying to rewrite history, are trying to rewrite the U.S. Constitution by stacking the Court with activist jurists who allow their feelings to rule their opinions.

Cross-posted from Observations

Thoughts on the Supreme Court: Same-sex marriage and the Affordable Care Act

Commentary by James Shott

Following the American Revolution when the new nation realized it needed a new controlling document, it replaced the Articles of Confederation with the U.S. Constitution, under which the states had significant independence from the federal government. The new government had a brilliant and unique design that included three co-equal branches, each with its own specific duties, limited authority and a system of checks and balances so that no one branch could become dictatorial.

Mentioned first, the Legislative Branch is the rule-maker, the single branch authorized to make laws. Next, the Executive Branch is charged with administering and enforcing the laws that Congress passes; and the Judicial Branch was to be the referee that made sure that the actions of the Legislative and Executive Branches comported with the dictates of the Constitution, as Alexander Hamilton said, to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. And Chief Justice John Marshall, in weighing the validity of a provision of the Judiciary Act of 1789, declared “It is emphatically the province and duty of the judicial department to say what the law is.”

Today we see that the Judiciary has become politicized, putting Constitutional concerns on the back burner, as demonstrated by two decisions by the U.S. Supreme Court last week.

First, the Court turned plain language and constitutional law on its head, for the second time, to deny challenges to the Affordable Care Act (ACA). And then it redefined what marriage has been for centuries.

The purpose here is not to argue against same-sex marriage or against whatever few good things may have resulted from the ACA, but to argue for proper judicial behavior in regard to interpreting Congressional acts.

Contrary to the popular notion that the Constitution is a “living document,” the meaning of which changes in response to the prevailing winds of popular societal notions, the Constitution set forth principles envisioned by the Framers as valid for the ages, and which ought to be interpreted as such. Otherwise, what means one thing in 1795 could mean something totally opposite in 1895, and then completely different from either meaning in 1995; the law being blown about on an ever-changing sea.

In the first case last week, Chief Justice John Roberts, voting with the majority, opined: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” Had he not redefined a “penalty” as a “tax,” the ACA would have overstepped its power in regulating interstate commerce. Last week, the Chief Justice again voted to correct flaws in the law by deciding that words don’t really mean what we thought they meant, saving the law’s constitutionality for a second time.

In his scathing dissent of that most recent ruling, Justice Antonin Scalia wrote: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it [actually] means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” “Words no longer have meaning,’” he wrote.

Further, the Constitution does not provide for the Supreme Court to correct errors in Congressional acts so that they pass constitutional muster. Congress must fix its own mistakes.

Chief Justice Roberts is thought to have been more concerned with trying to protect the Court’s reputation by not overturning a piece of popular legislation, rather than observing his duty to uphold constitutional law.

And last week the Court also voted to redefine what marriage is, with Justice Roberts returning to proper judicial conservatism, voting with the minority this time.

Nothing in the Constitution requires or allows the Supreme Court to redefine marriage. Marriage is a social/cultural construction that has stabilized the family as a bulwark social institution for thousands of years. The court imposed its judgment about a policy matter that should be decided by the American people through their elected state representatives, as provided for by the Tenth Amendment to the Constitution. The definition of marriage had already been broadened by 34 states, which is proper. If some states decide not to change that definition, so be it.

Chief Justice Roberts, who twice abandoned constitutional requirements in finding the ACA to be legal, noted the following in dissent about the same-sex marriage ruling: “If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

The Chief Justice properly noted the absence of constitutional authority in the same-sex marriage case, but somehow did not understand that the separation of powers prevents the Court from repairing the work of the Congress, which behaved horribly in creating the Affordable Care Act.

If the people can no longer rely on the Supreme Court to objectively evaluate acts of Congress and the Executive, we are doomed.

Cross-posted from Observations

America, Religion, and Depravity

Today we witnessed a brutal and senseless killing of innocent people in a movie theater in Colorado.  Some will declare that guns are the problem and that our right to bear arms must be curtailed.  Many will look to the government for solutions, to save us from ourselves.

What most people do not realize, however, is that our Founder Fathers already solved the problem by allowing for the free practice of religion (Christianity) in both public and private sectors.  Since the 1940's, however, the Supreme Court has steadily curtailed the freedom of religion in the United States, resulting in the massive increase of depraved behavior that we observe today.

Of note, the commonly used phrase, "separation of Church and State," is not to be found in either of our founding documents, The Declaration of Independence or the Constitution.  It is a phrase written by President Thomas Jefferson in a letter to the Danbury Baptists...a phrase that has been hijacked, perverted, and perpetuated by the ignorant and those who support the eradication of Christianity from the fabric of our nation.

(The discussion that follows uses David Barton's "Separation of Church & State: What the Founders Meant" as a resource for many of the quotes that are used.)

Amendment I of the Constitution of the United States:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

The original intent of our Founding Fathers when they drafted this Amendment was:
(1) to prevent the US Government from establishing one religious (Christian) denomination as the approved State Religion, such as the Church of England or the German Church (which Adolf Hitler successfully commandeered to help achieve his own twisted ends), and
(2) to allow the free exercise of religion in public and private venues unless "its principles break out into overt acts against peace and good order." (1878 Supreme Court ruling in Reynolds v. United States )

Furthermore, our Founding Fathers, and those who followed shortly thereafter, clearly understood that our form of government required the Christian faith to maintain order in the nation by encouraging the good conduct of its citizenry. 

George Washington:

"Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.  In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness--these firmest props of the duties of men and citizens.  The mere politician, equally with the pious man, ought to respect and cherish them."  (Address of George Washington, 1796)

"[L]et us with caution indulge the supposition that morality can be maintained without religion.  Whatever may be conceded to the influence of refined education...reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."  (Address of George Washington, 1796)

John Adams:

"[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion...Our Constitution was made only for a moral and religious people.  It is wholly inadequate to the government of any other."  (Works, 1798)

Noah Webster:

"All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery, and war, proceed from their despising or neglecting the precepts contained in the Bible." (History of the United States, 1832)

In 1801, President Thomas Jefferson alleviated concerns of the Danbury Baptist Association that the Constitution did not expressly identify the freedom of religion as an inalienable right.  Jefferson responded with a letter that reaffirmed the individual's freedom of religion that says in part:

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."  (Jefferson's Letter to Danbury Baptists, 1802) (You can also read the letter from the Danbury Baptists to Jefferson here.)

However, beginning in 1947, the Supreme Court began misinterpreting the 1st Amendment and Thomas Jefferson's letter, specifically where he spoke of "a wall of separation between Church and State."  In short, the Judicial Branch of the United States Government began deliberately rejecting the Christian foundation of our nation and the morals it teaches, which are essential to the good behavior of its citizens.

In 1947 Everson v. Board of Education, the Supreme Court "interpreted the 'separation' phrase as requiring the federal government to remove religious expressions from the public arena--that is, it interpreted the First Amendment not as a limitation on government interference but rather as a limitation on religious expressions and principles."  ("Separation of Church & State: What the Founders Meant.", p.14)

In its 1962 Engel v. Vitale ruling, the Supreme Court perverted the meaning of the word "church" within Jefferson's letter to mean "public religious activity" instead of "denomination."  They also perverted the use of the word "state" to mean the "public square." ("Separation of Church & State: What the Founders Meant.", p.14)

In 1963 Abington v. Schempp, the Supreme Court ruled that the Bible could no longer be included in public education:

"[I]f portions of the New Testament were read without explanation, they could be and...had been psychologically harmful to the child."

In 1980 Stone v. Graham, the Supreme Court ruled against the public display of the Ten Commandments, stating:

"If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey the Commandments...[T]his...is not a permissible...objective."

Our Founding Fathers clearly articulated that to have good citizens you need to have religion and morality.  Thus you should not have to sit for long and wonder why we have such problems in our current time...we did this to ourselves.

I will leave you with some of the findings of the Colorado Board of Education on the Columbine shootings which clearly identify the lack of moral teachings in schools being partly responsible for the depraved behavior we are seeing in our children:

"As we seek the why behind this infamous event, we must find answers beyond the easy and obvious. How weapons become used for outlaw purposes is assuredly a relevant issue, yet our society's real problem is how human behavior sinks to utter and depraved indifference to the sanctity of life. As our country promotes academic literacy, we must promote moral literacy as well, and it is not children, but adults in authority who are ultimately responsible for that....
As a Board we believe, with Edmund Burke, that all that is required for the triumph of evil is that good men do nothing. We further believe that society must act now before it is too late for more innocent children. We also recognize that failing to act shall make us all accomplices in such future tragedies as may engulf our schools.

Accordingly, we make the following recommendations for renewing that unity and strength of purpose that has historically bonded our schools, our homes, and our society....
Finally, we must remember, respect, and unashamedly take pride in the fact that our schools,
like our country, found their origin and draw their strength from the faith-based morality that is
at the heart of our national character.

Today our schools have become so fearful of affirming one religion or one value over another that they have banished them all. In doing so they have abdicated their historic role in the moral formation of youth and thereby alienated themselves from our people's deep spiritual sensibilities.

To leave this disconnection between society and its schools unaddressed is an open invitation to
further divisiveness and decline. For the sake of our children, who are so dependent upon a consistent and unified message from the adult world, we must solve these dilemmas."  ("What is to be Done: Searching for Meaning in our Tragedy")

The main resource for this article is David Barton's "Separation of Church & State: What the Founders Meant."  I recommend that you obtain this pamphlet to enhance your knowledge of this topic.


Disclaimer: These opinions are solely my own, and do not reflect the opinions or official positions of any United States Government agency, organization or department.

Tortured reasoning transforms an unconstitutional mandate into law

 

Commentary by James H. Shott

Last week U.S. Supreme Court Chief Justice John Roberts joined Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy in correctly identifying the individual mandate in the Patient Protection and Affordable Care Act as unconstitutional. That is what the Supreme Court is expected to do: follow the original intent of the authors, who created a document to protect America from over-reaching government actions like this one.

Writing for the Court’s majority, Chief Justice Roberts said: "The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce." He continued, correctly identifying the chaos that would result from finding the mandate constitutional: "Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority." Exactly. But the majority didn’t stop there.

Instead they decided the individual mandate is not really a mandate, it is a tax, essentially rewriting the statute and thereby making “Obamacare” the law of the land. But if, as Justice Roberts wrote, you cannot regulate individuals “because they are doing nothing,” how then can you tax individuals because they are doing nothing? This turns the definition of “taxation” on its head, taxes typically being levied on working, buying and owning, as opposed to levying taxes on not working, not buying, or not owning.

What exactly caused the Chief Justice, criticized by liberals for his judicial conservatism, to depart from his expected position? Many of those familiar with his thinking say the decision is in keeping with his values — conservative in his judicial views, but also considering the Court’s reputation. If the Court is seen as too conservative – adhering to the Constitution’s original intent too often – it may become unpopular with liberals.

Others believe he worked a brilliant bit of judicial magic by striking down the mandate, but upholding the statute’s constitutionality as a tax, preserving President Barack Obama’s signature accomplishment and allowing him to save face, but at the same time giving the law’s opponents a way to correct its many flaws.

Whatever the motivation, the ruling unfortunately opens the door for darn near any activity – or lack of activity – to be taxed by the federal government. As the legendary Chief Justice John Marshall famously said, “The power to tax is the power to destroy.”

Andrew P. Napolitano, former judge of the Superior Court of New Jersey, writing in The Washington Times, sees it this way: “If the feds can tax us for not doing as they have commanded, and if that which is commanded need not be grounded in the Constitution, then there is no constitutional limit to their power, and the ruling that the power to regulate commerce does not encompass the power to compel commerce is mere sophistry.”

This statute epitomizes dishonorable legislative methodology and bad law-making. Obamacare has been very unpopular with the public since it was first hatched, and it still is. Yet the Democrat majority in the House of Representatives lurched ahead, conceiving the bill behind locked doors, and the 2,700-page monstrosity was passed by the House before members even had time to read it. Remember then-House Speaker Nancy Pelosi arrogantly telling American citizens that they couldn’t know what was in the bill until Congress passed it? Senate Democrats bought enough votes with pricey concessions to key states to eventually pass the bill.

The measure was advertised vociferously by President Obama and his fellow statists as a mandate, not a tax, and it would not cause any American “making less than $250,000 a year to pay one dime more in tax.” The Act has now been upheld by the highest court in the land because it is a tax, not a mandate, and among the 21 new taxes are seven affecting those making less than $250,000 a year, some already in effect, according to Forbes.com.

They are: 1. The Individual Mandate Excise Tax, the higher of $1,360 or 2.5 percent of adjusted gross income; 2. The Over-The-Counter Drugs Trap denying use of pre-tax funds in special accounts to buy over-the-counter medicines for allergy relief and the like without a doctor’s prescription; 3. The Healthcare Flexible Spending Account Cap of $2,500; 4. The Medical Itemized Deduction Hurdle, increased from 7 to 10 percent of adjusted gross income; 5. The Health Savings Account Withdrawal Penalty of 20 percent, up from 10 percent; 6. The Indoor Tanning Services Tax of 10 percent; 7. The Cadillac Health Insurance Plan Tax of 40 percent.

The Democrats are celebrating their prize legislation’s Alice-in-Wonderland survival of judicial review, but now have to figure out how to explain to the American people that the bill they swore was not a tax on the poor and middle class really is a tax on the poor and middle class, in fact, the biggest tax hike in history.

You cannot sensibly praise the Supreme Court for upholding your flawed law, and then claim that the basis upon which it was upheld was incorrect. That twisted logic is beyond even the Obama administration.

Cross-posted from Observations

Obama Officials Desperately Run From Supreme Court Ruling Of Individual Mandate As A Tax

By Susan Duclos

Cross posted from Wake up America

A person would have to be living under a rock to not know that the Supreme Court ruled the individual mandate part of Obamacare constitutional under the Tax Code, legally defining it as a tax. Economists and the CBO has found that 75 percent of Obamacare taxes will hit families making under $120,000 a year, the middle class, so to speak.

Barack Obama's reelection team, officials, administration, and Democrats as well as Democratic surrogates find themselves in a quandary here because they want to celebrate the the survival of Obamacare in the courts, but are twisting themselves into pretzels to deny that the only way the individual mandate was able to be saved was under the Tax Code because the court stated clearly that under the guise that Obama and Democrats passed the bill, using the Commerce or Necessary and Proper Clauses, the individual mandate would have been unconstitutional.

(See Comprehensive List Of Obamacare Tax Hikes With Effective Dates- HERE. The individual mandate excise tax is number 17 on the embedded list.)

The reason for this is because in 2008 and 2009, Obama stated, multiple times, that he would never raise taxes on families that make under $250,000 a year.

3. CHIEF JUSTICE ROBERTS concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power.It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, 657, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22, 62. Pp. 31–32.

4. CHIEF JUSTICE ROBERTS delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44

Court opinion found HERE. (The above quote is from the Syllabus, page  3 and 4)

The latest in the group of Obama surrogates to turn themselves inside out trying to deny that the individual mandate is a tax, is Obama White House Chief of Staff, Jack Lew.

[WATCH]







Have to hand it to Chris Wallace above for refusing to let Lew get away with the direct lie, then playing the audio of Obama's own lawyer, arguing to the Supreme Court that "Not only is it fair to read this as an exercise to the tax power, but this court has got an obligation to construe it as an exercise of the tax power if it can be upheld on that basis."

This follows other  Obama mouth pieces, such as White House spokesman, Jay Carney, who told reporters the day after the Supreme Court ruled the individual mandate as a tax, "It's a penalty, because you have a choice. You don't have a choice to pay your taxes, right."

Obama surrogate, Massachusetts Gov. Deval Patrick told reporters on a conference call, "Don't believe the hype that the other side is selling. This is a penalty."

Politico reports that Nancy Pelosi almost used the forbidden word "tax" to describe it before she caught herself:

"It's a penalty that comes under the Tax Code," Pelosi said on NBC's "Meet The Press" as host David Gregory pressed her to say whether she agreed with the Supreme Court, which deemed the law constitutional because the fee used to enforce the individual mandate amounts to a tax, or with President Barack Obama, who has maintained the fee is not a tax.

"It's a ta—; it’s a penalty for free riders," Pelosi said, nearly uttering the dreaded T-word before cutting herself off.

From the disclaimers, denials and outright lies Democrats, liberals, Obama surrogates and Obama administration officials, are spouting, one would think they lost the Obamacare case instead of winning it.

Ilegal Aliens and Election Fraud

As the left proclaims that there will be a massive Latino voter turnout in 2008, more and more cities across the nation are claiming that they can’t stop voter fraud among illegal aliens. The following is a summary and full text of yesterday’s press release from American Unity Legal Defense Fund.

Summary:
American Unity Legal Defense Fund files Amicus Curiae brief in Crawford vs. Marion County Elections Board case pending before the Supreme Court. They ask the Court to consider the danger of illegal aliens voting: Cases and reports over many years indicate that non citizens have voted illegally across the country. The American Unity Legal Defense Fund (AULDF) filed an Amicus Curiae brief today in the Crawford vs. Marion County Elections Board case now pending before the U.S. Supreme Court. The case centers on the State of Indianas attempts to protect its election day operations by requiring voters to show photo identification at the polls.
Summary source

Full Text follows:

Illegal Alien Issue Added to Supreme Court Voter ID Case

FOR RELEASE: Monday, December 10, 2007

CONTACT: Edith Hakola, Esq.

American Unity Legal Defense Fund (540) 347-4766

Download full brief in pdf format CLICK HERE

Illegal Alien Issue Added to Supreme Court Voter ID Case

Non-profit Group's Amicus Brief Asks Court to Consider Election Fraud by Non-Citizens in Crawford vs. Marion County Elections Board.

(Warrenton, VA)..The American Unity Legal Defense Fund (AULDF) filed an Amicus Curiae brief today in the Crawford vs. Marion County Elections Board case now pending before the U.S. Supreme Court. The case centers on the State of Indiana's attempts to protect its election day operations by requiring voters to show photo identification at the polls.

AULDF's brief, in support of Indiana's voter identification law, supports the state’s position by specifically asking the Court to consider the danger of non-citizens casting ballots. The Amicus brief states: "Cases and reports over many years indicate that non-citizens have voted illegally across the country."

Opponents to the Indiana law who have filed Amici briefs include the NAACP Legal Defense Fund, the ACLU, the Indiana Democratic Party, and the Mexican American Legal Defense and Education Fund (MALDEF). They claim: "... mandating that those seeking to vote in-person produce a government issued photo identification violates the First and Fourteenth Amendments to the United States Constitution." Further, they argue that "in-person voter impersonation fraud" - which they contend is the only problem addressed by the statute in question - "does not exist."

Yet AULDF uncovered several instances of clear, documented "in-person voter impersonation fraud" in the first city it examined. Numerous other voter frauds were also detected which could have resulted in voter impersonation frauds.Some included forgery. But others included changes in existing registration data, a pattern which has been repeated across the country. These trends, contend AULDF, could have easily led to voter impersonation fraud.

AULDF asserts that opponents to the Indiana law have failed to recognize the value of voter identification procedures in stopping actual and potential voter impersonations.

AULDF points out that illegal aliens increasingly perpetrate registration fraud. “[T]he lack of immigration law enforcement is significant," and that the threat of non-citizens impacting the election process is growing. For "illegal immigrants, voting records have a substantial value as evidence of employment eligibility."

More importantly, asserts AULDF, recent political efforts have given illegal immigrants a non-economic incentive to participate in election-related activities: to increase political “clout” in hopes of achieving immigration law changes.

Edith Hakola, Executive Vice President of the American Unity Legal Defense Fund commented, "We entered this case because the integrity of the electoral process is crucial to participatory democracy. Voter fraud breeds distrust of our government." Mrs. Hakola, a Virginia attorney who was appointed by President Reagan to the ten-member council of the Administrative Conference of the United States, also said "Voters who fear their legitimate votes will be outweighed by non-citizens who fraudulently cast ballots will be discouraged from exercising their right to vote. We want the Supreme Court to consider this threat to our democracy in their deliberations."

The American Unity Legal Defense Fund is an independent, national, non-profit educational organization dedicated to preserving our historical unity as Americans into the 21st Century.
http://www.americanunity.org/index.htm

About American Unity Legal Defense Fund (from their web page)
“The American Unity Legal Defense Fund is an independent, national, non-profit educational organization that advances the cause of immigration reform in the legal arena. We're bringing to the courts' attention information that could shape the critical decisions that judges make - and we're combating a formidable array of left-wing legal organizations that are increasing their focus on immigration. . . .)

American Unity Legal Defense Fund, P.O Box 420, Warrenton, VA 20187

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