web analytics
August 28, 2015 / 13 Elul, 5775
At a Glance
InDepth
Sponsored Post


Eyes on the Ball, Folks: SCOTUS has Ruled Congress Can Make Us Buy Stuff

US Supreme Court

Photo Credit: Steve Petteway/Wikimedia

Where do we go from here?

Suppose we do have a better feel for it than the Chief Justice.  What is the way to proceed, to invalidate the SCOTUS ruling on ObamaCare?  This is an important question, and there are drawbacks with either of the most likely methods.

One is for the Supreme Court to rule differently on a case trying similar issues in the future.  This method would have the virtue of leaving the judiciary to correct itself.  But it would also be likely to involve issues that are not perfectly identical or even analogous, which would make application of the ruling uncertain.  If the judiciary behaves the way it usually has, correcting the ObamaCare ruling for any useful purpose would be a lengthy process requiring a number of separate rulings on related matters over time.

We should not despair of a different Supreme Court ruling differently on the same matter in the future.  Supreme Courts throwing out precedent – e.g., on the interpretation of the 9th and 10th amendments – is how we got to where we are today.  It can happen.  But it’s a big philosophical question whether that’s the best way to correct the ObamaCare ruling.  The judiciary has not, over time, been nearly as unified and single-trending as today’s shallow education leads Americans to think, but there has nevertheless been a certain coherence to the body of jurisprudence, even where many Americans continued to disagree with specific rulings.  A spectacular reversal might be popular, but what would it say about the integrity of our idea of law?

I’m not enamored of that possibility, but there are issues with a constitutional amendment as well.  As big an undertaking as it is, I see an amendment as the quickest and most effective way to clarify that Congress does not have the power to levy a purchase mandate of the kind embedded in ObamaCare.  Probably the biggest drawback with an amendment is the precedent it would set for adding such clarifications to the Constitution.  How many would we end up needing, to fend off all the federal mandates that may creep up on us?  A prohibition on a purchase mandate seems very general, but there’s no telling how many permutations of a sort-of-almost-not-quite purchase mandate Congress could come up with, to get around the amendment – and the people would still have to funnel money by mandate to Congress’s chosen goods or services.

That said, an amendment may be the way to go.  I am quite sympathetic with those who don’t want to just keep adding to the Constitution, but we have added very little to it in the much-changed political environment of the last 80 years.  The Constitution was written in a world in which many of the things people want to do with government today were unimaginable.  Those things have now been imagined, and it may in fact be time to update the Constitution.  That’s what we did with the 13th, 14th, and 15th amendments:  update the Constitution to reflect our national posture on emerging developments.  The 14th amendment may have been abused in the 20th century, but it was good law, in my view, clarifying the minimum that it meant to apply the law equally in a land of former slaves.  The Civil War amendments were added because big things had changed.

Big things have certainly changed in the last 80 years, and the chief result of legislation and jurisprudence has been ignoring or finessing the Constitution’s limits on government.  My preference for updating the Constitution involves affirming limits on government – in particular, the federal government – in the context of modern ideas about using it for absolutely everything.

I am not sure that a single amendment, or two or three, would accomplish everything that is needed.  I’ve been thinking about a private citizens’ “constitutional convention” for a number of years now:  a convention to approve and propose a small set of amendments to the US Constitution.  The idea would be to get legislators and presidential candidates to endorse the proposal, and a critical mass of them to push it in Congress, and perhaps prompt another official constitutional convention, which would adopt them.  (I believe others are thinking about this as well.  Please chime in if I haven’t mentioned your effort.)

About the Author: J.E. Dyer is a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004.


If you don't see your comment after publishing it, refresh the page.

Our comments section is intended for meaningful responses and debates in a civilized manner. We ask that you respect the fact that we are a religious Jewish website and avoid inappropriate language at all cost.

If you promote any foreign religions, gods or messiahs, lies about Israel, anti-Semitism, or advocate violence (except against terrorists), your permission to comment may be revoked.

One Response to “Eyes on the Ball, Folks: SCOTUS has Ruled Congress Can Make Us Buy Stuff”

  1. all of that magnificent language purportedly “erecting a wall” around the Commerce Clause is mere dicta – the equivalent of the “all the reasons I love you” before the “but” in the “Dear John” letter. Not a word of it has the slightest bit of precedential value. I would call it a sop to the Constitutionalists, but it hardly qualifies for even that

Comments are closed.

Current Top Story
Efrat Chief Rabbi Shlomo Riskin, formerly from New York.
One-Third of Americans in Israel Live in Judea and Samaria
Latest Indepth Stories
Ben Cohen

Corbyn leading the Britain’s Labour Party polls, describes Hamas & Hizbullah as England’s “friends.”

PA Chairman Abbas proudly celebrating with released terrorists.

The convicted murderer was released from Israeli prison with more than two dozen other sociopaths

New Israel Fund

JCF is a donor/supporter of The New Israel Fund which supports BDS & wants IDF soldiers prosecuted

Moshe Feiglin

The ‘Peace Industry’ promotes its adherents; weak leaders, both military & political, is the result

The conundrum for US Labor Zionists: Lobbying for Iran deal while Israel’s Left lobby’s against it.

What does the Torah want from our small nation described as “they who struggle with God & with men”?

Mr. Nadler’s support for the deal is a naked political gift to a president who has defied logic in his quest to reinvent international affairs according to his ideological inclinations.

In practical terms, the proclamation surely makes a compelling argument:

BDS activists are not shy about discriminating against Israelis simply because they are Israelis –

A Federal Ct Judge ordered the PA to post JUST $10 million due to interfering letter from State Dept

Osakwe, like many other students at the CAMERA conference, described an extremely hostile campus environment when it comes to the issue of Israel.

Many people view a letter or manuscript by a chassidic rebbe or the Chofetz Chaim as intrinsically holy.

Key Iran Lobby figures had been major donors to both Biden and Kerry when they were in the Senate,

Abbas’ resignation has now sparked speculation about who will fill his place if and ‎when he leaves

More Articles from J. E. Dyer
Obama, the new Neville Chamberlain

Iran has not agreed to give up anything needed to acquire a bomb or cease any aggressive behavior

Terms of Surrender

Dear Pres. Obama, A “deal” in which one side makes all the concessions is, of course, a “surrender.”

Activists from US, France, Germany & from Iran’s media are aboard because the ship’s a cause célèbre

“…the Pope did the exact opposite of what the media reported: he urged Abbas to change his ways.”

The world’s more vulnerable to predation, eruption, and chaos than it has been in at least 600 years

Iran stands unopposed by the “international community” and is racing to assert regional dominance.

The S-300 poses a major problem; Israel will have to get creative as to if, when & where it strikes

In the last weeks of the talks the US excluded every other delegation from negotiations with Iran.

Printed from: http://www.jewishpress.com/indepth/analysis/j-e-dyer/eyes-on-the-ball-folks-scotus-has-ruled-congress-can-make-us-buy-stuff/2012/07/01/

Scan this QR code to visit this page online: