Reactionary Judicial Activism, Unions, And The Walking Dead

In the recently decided Harris v. Quinn, Justice Alito and the conservative majority continued the Court’s assault (which began two years ago in Knox v. SEIU) on public employee unions, which just happens (!) to coincide with a larger assault on those unions by Republicans controlling state governments.

This is activism pure and simple. And it used to be that, in the judicial realm, conservatives were dead set against it (remember “judicial restraint”?). But that was then and this is the age of reactionary judicial activism, an activism increasingly blessed by conservatives-turned-radicals like George Will, who in January of this year was cheerleading for conservative judges to be “less deferential to legislatures” and who wrote:

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.

In Harris, the conservatives took Will’s advice and took it upon themselves to basically overrule the democratic process—legislators in the state of Illinois in this case—and have given, in the words of Harvard law professor Laurence Tribe“a constitutional underpinning to the anti-union ‘right to work’ stance.” Tribe says,

Harris is the latest chapter in the troubling story of the Roberts court indulging attenuated constitutional arguments against economic regulation.

Tribe concludes his piece on Monday’s anti-union decision this way:

Harris, despite its arguably narrow holding and apparent restraint, is thus part of a dangerous trend of veiling deregulatory economics in constitutional law. The Roberts court seems to be forgetting one of the principal lessons of constitutionalism since the New Deal: Economic policy should be made by legislatures, not courts. Harris is the Roberts court’s most recent retreat from that long-standing and wise consensus. It would do well to retreat no further.

Retreat no further? Come on. This is all about retreating. All the way back to the 19th century.

Back in 1977, the Court, not then openly hostile to the idea of unions, held in Abood v. Detroit Board of Education that private sector employees and public sector employees are essentially the same and that public employees represented by unions, even if they were not members, could be required to pay fees for the collective bargaining services they received, even if they objected to the political activities of the union. The Court essentially stopped in its tracks the idea that there could be freeloading public sector workers—those who took the benefits unions brought them but who didn’t want to pay for those benefits. Without such protection from freeloaders, unions—who are required by law to bargain for both members and non-members—could be in deep, deep trouble, especially if freeloading became the norm.

Monday’s decision in Harris V. Quinn, building on the anti-Abood stance Alito adopted in Knox v. SEIU, has guaranteed that public sector unions have something to worry about—if the composition of the Court is not changed before Alito can come up with enough votes to completely overrule the Abood decision, since right now it appears there is some teensy-weensy respect still left for stare decisis.  (Alito may soon have his chance in a case before the Ninth Circuit right now, Friedrichs v. CTA, in which a group of California teachers are seeking a reversal of Abood.)

Here is the way labor and civil rights attorney Moshe Marvit opened his piece for The New Republic:

The Supreme Court on Monday issued a wide-ranging opinion that will heavily impact the future of labor in America. The majority opinion in Harris v. Quinn held that home healthcare workers in Illinois and every other state that has a similar program are only “partial” or “quasi” public employeesas opposed to “full-fledged public employees” and thus don’t have to pay fees for labor representation. While the majority, led by Justice Samuel Alito, did not go so far as to fully gut the ability of public sector unions to finance their existence, the decision in the case was by no means a moderate one. Harris v. Quinn has set the stage for the eventual overruling of Abood; it has confused and perverted the concept of free-riders; and it has created an impossible standard for unions to meet.

A right-wing law professor sympathetic to the freeloaders, John Eastman, sees it pretty much the same:

While not quite the stake in the heart that would kill public employee unions altogether, today’s decision in Harris v. Quinn has at least made Abood a ghoul, one of the walking dead.

Yes, and soon the middle class, the beneficiary of private and public sector union activity, will also be part of the walking dead. (Some think the death, if not the walking, has already come.)

After Monday’s terrible Court decisions, HuffPo featured this graphic:

liberals crushed in court

Take a look at those faces. When I saw that graphic the first thing I thought about was Hillary Clinton. She could win two terms as president. She could change that headline, change those faces, at least those who are getting old (Scalia and Kennedy are 78 this year). For all her faults, for all her snuggling up to Wall Street wallets, liberals who don’t much like her would do well to think about the graphic above (and about the fact that Ginsburg is 81 and Breyer is 76). Those five men, if they haven’t already, may end up doing more lasting damage to the country than even George W. Bush’s decision to invade and occupy Iraq.

And if Hillary Clinton can do anything to stop them, I’m with her all the way.

 

In Case You Didn’t Know, A “Lawless” President Obama Doesn’t Want To Kill You With Drones

More than a year ago I wrote about President Obama’s use of drones in the war against al-Qaeda and other terrorist groups around the world. I essentially endorsed, with some discomfort, the way the President was handling his job as commander-in-chief relative to his use of drones in general and the killing of U.S. citizen Anwar al Awlaki in particular.

Mr. Obama’s incredibly thoughtful speech on Thursday, at the National Defense University in Washington, D.C., confirmed by endorsement and took away much of the discomfort.

I don’t know how any fair-minded person, which excludes most of the conservatives you meet on the street, or on cable TV, these days, could have heard the President’s speech and not have come away with a great deal of comfort that he, and not John McCain or Mitt Romney, is our commander-in-chief.

I won’t analyze the entire speech, but I do want to point out a part that addresses what so many liberals and lefties—as well as the usual gaggle of libertarianish Republicans—have been harping on, with some increasing intensity, for quite a while:

For the record, I do not believe it would be constitutional for the government to target and kill any U.S. citizen — with a drone or with a shotgun — without due process. Nor should any president deploy armed drones over U.S. soil.

But when a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a swat team.

That’s who Anwar Awlaki was. He was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S.-bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab, the Christmas Day bomber, went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, helped him tape a martyrdom video to be shown after the attack, and his last instructions were to blow up the airplane when it was over American soil.

I would have detained and prosecuted Awlaki if we captured him before he carried out a plot. But we couldn’t. And as president, I would have been derelict in my duty had I not authorized the strike that took him out.

I suggest a careful reading of the entire speech for anyone interested in how our modern military power should be applied these days. It is essentially the President “thinking out loud” about some of these topics, while being resolute on others. (He also handled a Code Pink protester fabulously, granting her the dignity of her position and weaving her into his speech at the end.)

Particularly interesting was his comments on the Authorized Use of Military Force, which was passed on September 14, 2001:

Now, all these issues remind us that the choices we make about war can impact, in sometimes unintended ways, the openness and freedom on which our way of life depends. And that is why I intend to engage Congress about the existing Authorization to Use Military Force, or AUMF, to determine how we can continue to fight terrorism without keeping America on a perpetual wartime footing.

The AUMF is now nearly twelve years old. The Afghan War is coming to an end. Core al-Qaida is a shell of its former self. Groups like AQAP must be dealt with, but in the years to come, not every collection of thugs that labels themselves al-Qaida will pose a credible threat to the United States. Unless we discipline our thinking, our definitions, our actions, we may be drawn into more wars we don’t need to fight or continue to grant presidents unbound powers more suited for traditional armed conflicts between nation states.

So I look forward to engaging Congress and the American people in efforts to refine and ultimately repeal the AUMF’s mandate. And I will not sign laws designed to expand this mandate further. Our systematic effort to dismantle terrorist organizations must continue. But this war, like all wars, must end. That’s what history advises. It’s what our democracy demands.

Contrast this discussion with what the now-ridiculous columnist George Will wrote in yet another ridiculous column about President Obama’s “lawlessness.”

Will was discussing Obama’s controversial recess appointments (the Supreme Court will ultimately determine their constitutionality) of three members to the National Labor Relations Board (NLRB) and comparing that action, unbelievably, to the infamous racist act by George Wallace 50 years ago, “when he stood in the door of Foster Auditorium at the University of Alabama to prevent two young blacks from registering as students.”

If that comparison weren’t embarrassing enough, Will wasn’t finished:

Courts defeated Wallace’s lawlessness. Presumably the Supreme Court will defeat Obama’s by telling the NLRB that the D.C. court was right about recess appointments. By such judicial vigilance against the excesses of elected officials, democracy is disciplined and progressivism’s agenda — unchecked executive power — is understood to be unconstitutional.

I, being a progressive, wasn’t aware that progressivism’s agenda was “unchecked executive power.”  Geeze. I thought it was unchecked executive power that gave progressives and liberals the heebie jeebies. In any case, President Obama’s amazingly engrossing and thoughtful speech on Thursday, in which he wants Congress to take pack the “unbound powers” it has granted to the executive branch, makes a fool not only out of George Will, but all those who think this president is power mad.

George Will Channels Glenn Beck, Or How A Once-Respected Conservative Columnist Has Caught The Hate-Obama Plague

I’ve often picked on George Will, the conservative columnist famous for being a right-wing nerd.

And I’ve picked on him for good reason. He’s written some nasty and nutty columns in his career, but perhaps none as nasty and nutty as his column in yesterday’s Washington Post (“In IRS scandal, echoes of Watergate”).

While I won’t hold him accountable for the headline of his piece, I will hold him accountable for beginning his piece with a selection from the Articles of Impeachment against Richard Nixon:

“He has, acting personally and through his subordinates and agents, endeavored to . . .cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.”

Will, knowing that he is a media darling, intentionally invoked the ghost of Tricky Dicky to, what else, bring attention to himself, which is somewhat excusable I suppose. A guy has to make a living, even if it is peddling nonsense.

But while it is excusable for a conservative columnist to engage in some hyperbole regarding the Obama presidency—and God knows the Scary Negro brings out the beast in those pale-faced conservatives—it is not excusable for a man with the reputation that George Will has enjoyed to engage in the kind of conclusion jumping fit for, say, Glenn Beck:

The burglary occurred in 1972, the climax came in 1974, but 40 years ago this week — May 17, 1973 — the Senate Watergate hearings began exploring the nature of Richard Nixon’s administration. Now the nature of Barack Obama’s administration is being clarified as revelations about IRS targeting of conservative groups merge with myriad Benghazi mendacities.

The nature of Barack Obama’s administration is being clarified…” Hmm. Not one thing that has been revealed so far, from either the IRS fiasco or the Benghazi tragedy, has even come close to implicating President Obama in some kind of Nixonian crime. Not one thing. Nothing. But here is the much-respected George Will comparing the “nature” of Obama’s presidency to Nixon’s. I once thought that only in the noggins of people like Glenn Beck would such tripe thrive. But the plague has spread and even those with intellects are vulnerable.

Oh, and to show how this whole column was designed to draw attention to himself and not to offer us any real insight, Will includes this cover-his-ass disclaimer:

It remains to be discovered whether the chief executive is guilty of more than an amazingly convenient failure to superintend the excesses of some executive-branch employees beyond the Allegheny Mountains.

Wait a minute: “It remains to be discovered whether the chief executive is guilty…”? Huh? Will begins his column with a reference to impeachment, compares Obama to Nixon repeatedly, and then adds, “It remains to be discovered whether the chief executive is guilty…”? What bullshit, what utter bullshit, that is.

And to expect the President, no matter who he is, to “superintend the excesses” of anyone and everyone who works in the executive branch is itself an absurdity. What is Obama supposed to do? Do we want him spending his time running from building to building, city to city, state to state, embassy to embassy, making sure all 2.65 million executive branch employees are doing their jobs correctly?

Is Obama supposed to be the superintendent-in-chief?

The tommyrot in this column culminated in this:

Five days before the IRS story broke, Obama, sermonizing 109 miles northeast of Cincinnati, warned Ohio State graduates about “creeping cynicism” and “voices” that “warn that tyranny is . . . around the corner.” Well.

Well what? What’s that “well” there for? I’ll tell you what it’s there for. It is to confirm that the Scary Negro, the one that has driven pale-faced conservatives nuts for more than four years, is the tyrant they all imagined him to be. Barack Obama is a Black Panther—excuse me, a New Black Panther—who means to do real harm to the country, especially the parts of the country with lots of conservative white folks in it.

Finally, Will claims that,

If Republicans had controlled both houses of Congress in 1973, Nixon would have completed his term. If Democrats controlled both today, the Obama administration’s lawlessness would go uninvestigated.

Get that? Did you get that transition from using the specific name “Nixon” to using the phrase “the Obama administration’s lawlessness”? Did you get that slick move from naming a man who personally committed crimes for which he had to be pardoned, to using the phrase, “the Obama administration“? Again, it’s as if bad deeds done by IRS staffers in Cincinnati or elsewhere is Obama’s fault and is equivalent to the crimes committed by Richard Nixon himself.

What dishonest piffle that is.

And by the way, as Politico reported,

[R]oughly one-third of House committees are engaged in investigating some aspect of the Obama administration…

With millions of Americans out of work or out of full-time work, with a slow economic recovery, with working-class incomes declining, with all the other things going on both here and abroad, ain’t it nice to know that Republicans have something to do?

George Will Channels Rush Limbaugh

Wow.

I thought I could anticipate all the conservative excuses, should President Obama remain President Obama after November 6. But damn, I didn’t expect this one from conservative intellectual George Will:

Perhaps a pleasant paradox defines this political season: That Obama is African American may be important, but in a way quite unlike that darkly suggested by, for example, MSNBC’s excitable boys and girls who, with their (at most) one-track minds and exquisitely sensitive olfactory receptors, sniff racism in any criticism of their pin-up. Instead, the nation, which is generally reluctant to declare a president a failure — thereby admitting that it made a mistake in choosing him — seems especially reluctant to give up on the first African American president. If so, the 2012 election speaks well of the nation’s heart, if not its head.

Get it? Folks don’t want to see Their Negro fail in his first job! Oh, my, God. The condescension is, uh—let me catch my breath—breathtaking. Will is saying that if Barack Obama weren’t black, he’d be toast in November! Americans are engaging in a “pleasant” bit of affirmative action!

If this reasoning sounds familiar, it should. It is very similar to the reasoning Rush Limbaugh used in 2003 on ESPN’s Sunday NFL Countdown—and which lost him that inexplicable gig as a commentator and which later kept him from buying into an NFL franchise—regarding quarterback and African-American Donovan McNabb.

McNabb, you may remember, had three consecutive Pro Bowl appearances and had led his team to a couple of NFC championship games before Limbaugh, during pre-game commentary nine years ago, said this:

Sorry to say this, I don’t think he’s been that good from the get-go. I think what we’ve had here is a little social concern in the NFL. The media has been very desirous that a black quarterback do well. There is a little hope invested in McNabb, and he got a lot of credit for the performance of this team that he didn’t deserve. The defense carried this team.

Limbaugh resigned under pressure soon after those remarks, but was always defended by the right-wing as a victim, since it is hard for palefaced conservatives to see the condescension and offense embedded in them.

Perhaps George Will thinks it is career-enhancing to channel Rush Limbaugh, when trying to explain why Obama might win. And given the state of the conservative movement in the Age of The Scary Negro, perhaps it is.

Romney Tax Returns− “Higher Costs,” “Something In There”

This hurts

ABC News’ George Will slammed presumptive Republican presidential nominee Mitt Romney for failing to fully release information on his tax returns and offshore accounts, saying Romney “must have calculated that there are higher costs in releasing them.” ABC News political analyst Matthew Dowd agreed, saying “there’s obviously something there” in Romney’s returns that he doesn’t want public.

It won’t be long now.

The Essence Of Conservatism

I watched ABC’s This Week on Sunday and during the roundtable discussion the topic turned to the hot, hot summer and the issue of climate change.

The program’s regular panelist George Will, who perhaps is the most respected conservative intellectual in the country, is also famous for being  a climate change denier, and not a particularly honest one at that. So, I should have expected his response on Sunday:

WILL: You asked us — how do we explain the heat? One word: summer. I grew up in central Illinois in a house without air conditioning. What is so unusual about this?

Now, come the winter, there will be a cold snap, lots of snow, and the same guys…will start lecturing us. There’s a difference between the weather and the climate. I agree with that. We’re having some hot weather. Get over it.

Ah, if that last sentence doesn’t capture the essence of conservatism, nothing does: GET OVER IT!

Don’t have an air conditioner? Get over it! Don’t have a job? Get over it! Don’t have health insurance? Get over it!

Now, it so happens that I was also watching CNN later that day and crawling across the screen was some notation of the number of folks who had trouble getting over the summer heat; that is, they were killed by it.

I tried getting good numbers on just how many folks died trying to get over the heat, but, naturally, the numbers are hard to get right. Many factors may contribute to a death associated with the heat, besides just the heat. The Associated Press reported last week:

Americans dipped into the water, went to the movies and rode the subway just to be in air conditioning Saturday for relief from unrelenting heat that has killed 30 people across half the country.

I don’t know how accurate that number is, but there have been extraordinary heat waves over the last 30 years around the world and here in the United States, heat waves in which thousands upon thousands of folks failed to take George Will’s advice and get over it.

And I found the following last week in Missouri:

The Kansas City Health Department said five heat deaths are being investigated.

As Kansas City remains in the grips of an unusual early summer heat wave, the suspected heat deaths are soaring.

And moving east on I-70:

The medical examiner in St. Louis says three elderly people have died of heat-related illness in recent days.

People like George Will, who now has a professional stake in the outcome of the debate over climate change (to the extent there is a debate anymore; Republicans have pretty much shut it down) and the strange and extreme weather that goes along with it, can cavalierly dismiss the warnings that real scientists, as opposed to those who play them on right-wing radio and TV, are giving us about the effects of warming the planet via the world’s excessive exploitation of fossil fuels.

But the results of Will’s denial—and the entire American conservative movement shares that denial—is that some increasing number of vulnerable folks will not survive the summers to come, not to mention other extreme weather events like droughts, flooding rainfalls, and derechos.

And throughout all those events, just like throughout the extreme economic events that Americans have endured and are enduring, the conservative response will be: Just get over it.

The Shade Tree

Now the LORD God had planted a garden in the east, in Eden; and there he put the man he had formed. The LORD God made all kinds of trees grow out of the ground—trees that were pleasing to the eye and good for food. In the middle of the garden were the tree of life and the tree of the knowledge of good and evil.”

—Genesis 2:8,9

 

At the end of ABC’s This Week last Sunday, which was a “Great American Debate” with the resolution that “There’s Too Much Government In My Life,” George Will summed up his case in favor of the resolution: 

…I think big government harms prosperity. It harms prosperity by allocating resources not in terms of efficiency, but in terms of political power that directs the allocation. I think big government harms freedom, because it is an enormous tree in the shade of which the smaller institutions of civil society cannot prosper. And most of all, big government today harms equality. It harms equality because, by concentrating power in Washington, in big government, it makes itself susceptible to the rent-seeking by big, muscular interest groups. The only people who can come to Washington and bend the government to private purposes.

Get the government out of our lives more and more, and you’ll find that freedom and the market allocations of wealth and opportunity prevails.

Jefferson understood—Jefferson understood that you can have a government with minimal attention to the absolute essentials we have talked about. Of course, we want government to build roads, we want government to defend the shores, we want the government to deliver the mail. But after it does the essentials, understand what Ronald Reagan did. When Ronald Reagan said we’re going to have less government—under Reagan, respect for government, something we all want, respect for government rose as government’s role declined.

Now, there are several things wrong with what Will said (especially that erroneous claim about Ronald Reagan), even as he expressed very well the traditional, mainstream conservative arguments against big government, which contradict some of the extremists in the Tea Party and elsewherethat don’t necessarily even want the government to build roads or deliver the mail. 

But I want to focus on what appears to be the heart of his argument, as expressed by his shade tree metaphor, which does echo much of what teapartiers say today about Barack Obama and his mythical attack on our liberties: 

I think big government harms freedom, because it is an enormous tree in the shade of which the smaller institutions of civil society cannot prosper. 

Let’s look at that metaphor a little more closely because it illustrates the difference between conservatives and liberals quite well. 

I write this in the middle of the Arizona desert, where the sun in all its glory can be quite harmful, not to mention deadly. In the summertime, without shade, it is relentlessly efficient in its ability to scorch skin and earth. And there is a relentless efficiency in the laissez-faire approach that, much like the desert sun, would harm its potential beneficiaries, if there is no relief, no shade tree to thwart that sometimes destructive efficiency.

And that is what government does, or at least should do: Provide some shade from a relentless and necessary power source, a source without which we can’t live but with which we must take precautions to keep it from wilting us, or worse, from searing our civilization. So, there are those of us who welcome such a large shade tree, and we know there are species—”smaller institutions of civil society“— that can thrive—indeed, can only thrive—under its beneficence. 

Obviously, there are activities that can only be done in the sun, out from under the blessings of government’s penumbra. But in order to fully enjoy and benefit from those activities, we need to know that the tree of government—of “we the people”—is there when we, the people, need some civilization-saving relief from a withering sun. 

And that is, thanks to George Wills’ metaphor, a good accounting of the difference between those of us who call ourselves liberals, who see the value in a big shade tree, and those who call themselves conservatives, who do not. 

“We Have The Guns,” Says Republican “Establishment” Darling

The Tea Party, said conservative commentator George Will on Sunday, is the Republican “establishment” today.  If that doesn’t scare you, let’s look at one of the Republican Party establishment’s leading spokesman, teapartier Andrew Breitbart.

Speaking to a sparse Tea Party gathering in Lexington, Massachusetts, last Friday, the $60-a-head Republican establishment was treated to this (Pensito Review provided a partial transcript below):

BREITBART: I must say that in my non-strategic — ‘cuz I’m under attack all the time — if you see it on Twitter, the tolerant call me gay. And it’s just like, they’re vicious, the death threats and everything. And so, there are times where I’m not thinking as clearly as I should, and in those unclear moments, I always think to myself, “Fire the first shot. Bring it on.”

Because I know who’s on our side. And they know that. They can only win a rhetorical and propaganda war. They cannot win. We outnumber them in this country, and we have the guns. So — [Laughter.] I’m not kidding. They talk a mean game, but they will not cross that line because they know what they’re dealing with.

And I have people who come up to me in the military, major named people in the military, who grab me and they go, “Thank you for what you’re doing, we’ve got your back.”

And so they understand that. These are the unspoken things we know, they know.

They know who’s on their side. They’ve got Janeane Garafalo. We are freaked out by that. [Garbled.] When push comes to shove, they know who’s on our side. They are the bullies on the playground, and they’re starting to realize — What if we were to fight back? What if we were to slap back?

You know, these union thugs. These public sector union thugs — I’m just waiting — bring it on.

I am sick of it. I am sick of this Trumka guy. I’m sick of this John Sweeney. I’m sick of the SIEU. I’m sick of them going to people’s homes, executives’ homes and showing up and the media not think — you don’t think there’s a problem with that?

Katie Couric. What if we went to Katie Couric’s house? What if the tea party showed up at Katie Couric’s and scared the living crap out of her teenaged kids? And that’s what they do because they know the mainstream media won’t cover it.

And so, there’s just a part of me that wants them to walk over that line.

George Will Proves Himself Wrong About The Constitution

On Sunday’s This Week With Christian Amanpour, the Constitution, naturally on Independence Day weekend, was the topic.  The panelists were Michael Eric Dyson of Georgetown, Jill Lepore of Harvard, and Richard Stengel, editor-in-chief of Time magazine, and, of course, conservative commentator George Will, whose views on the nature of the Constitution I want to discuss.

Will’s position can be fairly summarized in two excerpts from his commentary on the show, beginning with this:

It’s one thing to say it’s open to interpretation, which it obviously is. It’s very open-textured language. On the other hand, I mean, when you say unreasonable searches and seizures, what’s reasonable? We argue about that. But to say that the Constitution is a living, evolving document, as you did, is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia said. It is intended to put certain things beyond the reach of transient majorities.

Here is another selection from later in the program:

The framers were not narrowed and blinkered men. They were men of the enlightenment. They believed in progress, to which end they included in this document an amendment provision. They said there will be changes made.

The difference is, do you amend the Constitution by the casual weak interpretation of it, or do you candidly, when you want to change the structure of the government, change it by the amendment process they provided?

Now, these two sections seem to me to be a fair representation of the general conservative understanding of the nature of our Constitution and of constitutional interpretation.  They certainly represent the view I held as a conservative, and one reads or hears a variation of this idea from the lips of most conservative thinkers today.

The problem is that the conservative view is simply mistaken.  And George Will proved it during the subsequent discussion.

Will ask the following question, in the context of the health insurance mandate, of his fellow panelists, a question he no doubt thought would prove the superiority of his position:

Let me ask the three of you. Obviously, obesity and its costs affect interstate commerce.  Does Congress have the constitutional power to require obese people to sign up for Weight Watchers?  If not, why not?

Two of the panelists eventually answered the question, sort of:

RICHARD STENGEL: If something is unconstitutional, people out there tend to think like some alarm will go off if something is unconstitutional. It’s unconstitutional if the Supreme Court decides it’s unconstitutional. And by the way, this can go to the Supreme Court, and we can see whether that happens.

GEORGE WILL: Well, does Congress have the power to mandate that obese people sign up for — do they have the power to do this?

RICHARD STENGEL: I don’t know the answer to that.

GEORGE WILL: You don’t know.

MICHAEL ERIC DYSON: Well, the beauty of that is, the not knowing…The basic foundation is set.

GEORGE WILL: Is that a yes, Congress does have the power to mandate?

MICHAEL ERIC DYSON: It’s open. If they decide that they will, they will have the power to do so.

The truth is—putting Stengel’s and Dyson’s thoughts together—that Congress does have the power, in Will’s formulation, to “require obese people to sign up for Weight Watchers,” if, and only if, the Supreme Court says it has the power.*

In the case of the health insurance mandate, if the Supreme Court ultimately rules that Congress has the power under the Commerce Clause to tell Americans they have to purchase health insurance, then they have to purchase health insurance or suffer the consequences.  Period.  There is no appeal from such a ruling, except via the formal amendment process. Likewise, if the Court says that Congress doesn’t have that kind of power, the Affordable Care Act’s mandate would be dead.

You see, this is the way it works, under a genuine, small “c” conservative understanding of the Constitution: The Congress acts, the Supreme Court decides if congressional action is constitutional, and we move on.  This dynamic is why liberals rightly call it a living, breathing document.

And despite the fact that conservatives like George Will believe our founding document is designed to “freeze” in time certain principles, the truth is that the Constitution gives—through Chief Justice John Marshall’s bold assertion in 1803 of an otherwise only implicit constitutional power—the Supreme Court the right to judge whether Congress’ actions shall stand or fall.

And, more controversially but unmistakably, it gives the justices—even conservative justices who pretend to believe in something called originalism—the de facto right to interpret the document in novel ways (see, for instance, the 2010 Citizens United decision in which corporations became people with free speech rights).

Finally, George Will really undermined his own claim about a frozen Constitution with this remark:

In the first decade of the 21st century, that 18th century amendment—Second Amendment—pertaining to bearing arms, was settled in this sense — the Supreme Court finally said, based on extraordinary scholarship on both sides, that it does protect an individual right, not the collective right of militias.

Think about that. It took 217 years to “finally” settle the meaning of the Second Amendment? Remember what Will said before:

…to say that the Constitution is a living, evolving document, as you did, is almost oxymoronic. A Constitution is supposed to freeze things. It is an anti-evolutionary device as Justice Scalia said. It is intended to put certain things beyond the reach of transient majorities.

But what about transient majorities on the Supreme Court?  How can anyone argue, “a Constitution is supposed to freeze things,” when it has taken so long for us to understand what the Second Amendment means?  How about the First Amendment, the crucial meaning of which is still debated as it applies to twenty-first century life?

The point is that we know the Constitution is alive because new or nuanced interpretations of it keep breathing into its 18th century lungs the breath of life. And nothing confirms that truth more than the recent decisions by the conservative majority on the Supreme Court, notwithstanding the phony constitutional philosophy championed by those conservative justices and their defenders on television.

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* This, of course, overlooks Congress’ power to define and therefore limit the apellate jurisdiction of the Court and preclude constitutional challenges to some of its actions. Article III, Section 2 of the Constitution says in relevant part:

…the supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Many conservatives see this provision as a check on “judicial supremacy,” and advocate that Congress pass laws that contain restrictions on judicial review, thus legislating the courts out of the mix.  So much for “separation of powers.”

In fact, none other than Missouri’s Todd Akin, the extremist congressman from the 2nd district who wishes to replace Claire McCaskill as our senator, introduced a famous jurisdiction-restricting bill in 2004 involving protecting the Pledge of Allegiance. The bill, which ultimately didn’t become law, did pass the House.  It had an amazing 226 co-sponsors, as conservatives in both parties couldn’t help but jump on the side of God and the Pledge.

Here is how Akin’s official House site, bragging about House passage of his bill, describes it:

Congressman Todd Akin (R-MO) praised its passage of his bill to protect the words “under God” in the Pledge of Allegiance. “This is an essential step in stopping the overreach of activist judges and will free the vast majority of children and adults who wish to use the words ‘under God’ in the recitation of the Pledge of Allegiance from the threat of censorship,” said Akin…

Exercising Article III of the Constitution, the Act (H.R. 2028) protects the Pledge of Allegiance by removing from the jurisdiction of the federal courts the question of the Pledge’s constitutionality.

Here are some notable Republican co-sponsors of Akin’s bill, who not only put themselves on the side of “under God” in the Pledge, but also believe that Congress should from time to time limit the jurisdiction of the courts:

Roy Blunt, Sam Graves, Tom DeLay, John Boehner, Eric Cantor, Jim DeMint, Jeb Hensarling, Paul Ryan, Darrell Issa, Ron Paul, Tom Tancredo, Pat Toomey, Joe Wilson.

In my experience, it is usually religious conservatives who want to limit the Supreme Court’s jurisdiction on “vital issues” like the “under God” in the Pledge, and also over display of the Ten Commandments and the “defense of marriage.”

George Will’s Tanning Bed

George Will’s column on Texas Governor Rick Perry, which should have been titled, “Run, Rick, Run,” appeared in Monday’s Joplin Globe.  I want to point out a bit of, well, chicanery from the column, but first this:

Supposed examples of Perry’s extremism evaporate in sunlight.

Now, when you have to point out that your guy has an “extremist” problem, you have a steep hill to climb in elevating him to presidential status, no?

In any case, Will plodded on:

One is that he intimated support for Texas’ secession from the Union. After people shouted “Secede!” at a rally, he said he understood their frustration but added: “We’ve got a great union. There is absolutely no reason to dissolve it.”

The rally was an anti-tax tea party gathering in Austin, and Perry had entertained the crowd with suggestions that, in the words of the AP, “the federal government is strangling Americans with taxation, spending and debt.”

Strangling Americans.  Nothing extremist about that, I suppose.

Later, Perry was answering reporters’ questions and he said the following, only part of which Will quoted:

“There’s a lot of different scenarios,” Perry said. “We’ve got a great union. There’s absolutely no reason to dissolve it. But if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Will, who said “examples of Perry’s extremism evaporate in sunlight,” sort of kept his readers in the dark regarding Perry’s complete statement. Perry’s saying, “if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that,” sounds sort of, well, extreme doesn’t it?

But will had more strange sunlight to shine on Perry’s extremism:

He signed a law requiring women seeking abortions to be shown sonograms of their babies. Do people objecting to this mandatory provision of information object to the new graphic warnings on cigarette packs?

Hmm. What a clever use of deflection. Instead of thinking about Perry advocating government force to require women seeking abortions to look at sonograms of their “babies,” we are instead thinking about those nasty pictures on packages of smokes.

And we certainly don’t want to think about the fact that in order for the government to force women to view sonograms of their “babies,” they first have to force them to have sonograms in the first place, some of them possibly with vaginal probes.  That’s kind of like putting a picture of a charred lung on a pack of Camels, isn’t it?

Sunlight, indeed.

The truth is that there just isn’t enough sunlight to evaporate the extremism of Rick Perry, especially if that sunlight is really only a tanning bed in which conservative Republican George Will has tried to hide the truth about the Governor of Texas.

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