The Other McCain

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Two Words In Reply To Stare Decisis On Progressivism, The Second Of Which Is ‘You’

Posted on | January 20, 2012 | 19 Comments

by Smitty

Can we get a spine implant for Orin Kerr (emphasis original)?

I’m also a Burkean conservative stare decisis guy, and I’m acutely aware of the Supreme Court’s long struggle to identify principled and workable limits on the scope of the Commerce Clause. History has shown that it’s surprisingly hard to do that, and that unprincipled or unstable lines don’t last and just destabilize the law for a short window before being rejected. My comfort with the Court striking down the mandate therefore varies considerably based on how the Court could do it. Let’s imagine, hypothetically, that the Supreme Court strikes down the mandate but does not identify any genuinely principled or workable doctrine to justify it. The Court’s decision merely reopens the hornet’s nest of line-drawing problems that the Court has long struggled with in the Commerce Clause setting, with the significant likelihood that in 20 years the Court will abandon its reasoning. In that case, the Burkean conservative part of me would be dismayed by the Court’s decision. Sure, the federalism guy side of me would be happy, but it would be outweighed by my Burkean objections. But if we imagine a hypothetical opinion invalidating the mandate that did identify such a principle, and the principle proves a lasting one, then my Burkean concerns could be addressed and my reaction would be different.

A century ago, the Wilson administration hijacked our Constitution, and effected a slow-motion Article V re-write thereof. These many trillions of dollars of debt later, stare decisis amounts to ‘staring at the deceased’, i.e. our liberty. False ideas are not rendered true by trotting them out gradually, sir.

Step up to the plate, and understand that Amendments 16 & 17, plus the Federal Reserve Act, were the seeds. The New Deal and Great Society fed and watered Leviathan. And now the time has come to ensure that the SCOTUS notes that liberty has been substantially harmed by the last century of “Progress”, and does something more in keeping with the American exceptionalism. This ‘Burkean conservative’ concern trolling is worthy of faux conservative clowns like David Brooks.

That the government can tax me to support, and I cannot sue for emancipation from, this horrid Social Security beast is all we need to know about the fecklessness of stare decisis arguments. I hope that the decision that slays ObamaCare lays the foundation for a restoration of individual liberty.

Update: now a Memeorandum thread.


19 Responses to “Two Words In Reply To Stare Decisis On Progressivism, The Second Of Which Is ‘You’”

  1. Anonymous
    January 20th, 2012 @ 9:28 pm

    (I completely agree with your *entire* piece…
    Wow! That is the first time *that’s* happened!)


  2. Anonymous
    January 20th, 2012 @ 9:29 pm

    I read only the excerpt of Kerr’s piece provided by Smitty (above), but at first glance Kerr’s argument seems contradictory: he’s describing a Court that has gone back-and-forth concerning interpretations of the Commerce Clause, not at all demonstrating a steady, evolutionary approach at all, but more like exhibiting activist impulses. Kerr fears that, in possibly striking down a legal requirement that he sees as unconstitutional (the individual mandate), in the process the Court will “reopen the hornet’s nest,” making the constitutional order even more erratic than usual.

    Okay, but Burke was reverential toward the English constitutional order because he saw it as a product of steady evolution, long-established traditions, knowledge distilled over the ages. Yet, Kerr would ask us to apply Burkean austerity to a constitutional status-quo that Kerr admits is nothing like a Burkean order.

  3. Charles
    January 20th, 2012 @ 9:52 pm

    You’ve got a little more than stare decisis going against you on Constitutional Amendments 16 & 17. And, by the way, those social security and medicare taxes on wages probably don’t depend on the 16th Amendement. It was only the tax on interest, dividends, and rent that the Pollock court had ruled improper direct taxes.

    It will be harder to embed Obamacare, however, than it was to embed social security and medicare. On those programs you pay the taxes all your working life and get the benefits in retirement. No one who is very far into their working life is going want to see the program eliminated without at least getting paid back, and no one who wants to eliminate the program ever offers to pay people back.

    For Obamacare, you pay the tax/insurance premiums and receive the benefits in real time. If you’ve been hoodwinked into thinking its a good deal when it isn’t, that becomes obvious real fast.

    There is a danger if Obamacare is struck down and medicare is allowed to stay. The people who wanted Obamacare will be back, and this time they will be demanding medicare starting at birth, which is essentially the single payer public option idea. Maybe they won’t have the votes, but I wouldn’t be so sure.

  4. Bg
    January 20th, 2012 @ 9:53 pm

    Ya’ll talk a lot  alike.

  5. Adjoran
    January 20th, 2012 @ 10:01 pm

    Kerr is a legal scholar, but he’s splitting hairs here.  The Court rarely delineates philosophical principles of application of Constitution law for very good reason.  One of the basic conservative principles of judicial restraint is that cases should be decided on the minimum, the most narrow point of law possible.

    In other words, if a constitutional case comes up and the majority determines the plaintiff lacks proper standing, they should rule against him on that point ALONE and not go on to the merits of the particulars of the case.   This was in fact the biggest error in the Dred Scott decision:  instead of simply ruling against Scott’s right to sue (wrong, but not catastrophic for anyone but Scott), the Court went further and ruled the entire Missouri Compromise unconstitutional.  With that ruling, civil war became unavoidable – the only question was when.

    So I believe the conservative course would be a simple ruling against the mandate and, it being unseverable, the entire act.  Enunciating interpretations of the meaning of clauses may help guide potential future litigants, but it serves no real purpose anyway.

    Stare decisis is one of the most necessary legal doctrines.  It means only that the strong presumption is that once a legal question has been adjudicated, inferior and successor courts should apply the ruling to the same issue if brought up again.  Otherwise, every court in the country would be issuing its own take, you could have a patchwork of constitutional interpretations arising after the matter has already been decided at the highest level, and courts would be clogged with litigants arguing the same issue over and over, always hoping to draw that one sympathetic judge.

    It has never been absolute, and should not be, but the further down the food chain a court is the more reverently it should approach overruling SCOTUS.

  6. Anonymous
    January 20th, 2012 @ 10:02 pm

    LOL…I had the same response.

    Good post!

  7. Edward
    January 20th, 2012 @ 10:20 pm

    If stare decisis actually meant anything then Jim Crow & slavery would be the laws of the land.  That they aren’t, and that’s a good thing, means that stare decisis should never be an excuse to not correct the misbehavior of past Supreme Courts.

  8. ThomasD
    January 20th, 2012 @ 10:40 pm

    When people go on about their ostensibly Burkean conservatism I’m reminded of my fathers advice about people ‘playing’ Devil’s advocate – they aren’t playing.

    Neither are many of these Burkeans being particularly Burkean – either in the original sence (how could they – being Americans) nor in the sense of being conserving of classical liberalism .

    What it boils down to is that, on the whole, they are accepting of the status quo.

    Which is a form of conservatism, just one not quote so august as that bearing the name of Edmund Burke.

  9. Anonymous
    January 20th, 2012 @ 11:35 pm

    No one is going to have to eliminate Social Security and Medicare. What can’t continue, won’t.

  10. John Paul II
    January 20th, 2012 @ 11:51 pm

    ^nailed it

    plus these “Burkeans” are always only invoking it to support entrenched liberal principles, not “oppressive” conservative ones. just say you’re liberal and quit the philosophical handwringing, you never see liberals arguing the “liberal case for conservatism” or whatever.

  11. John Paul II
    January 20th, 2012 @ 11:55 pm

    there was a great article on Takimag (i know, The Jews, but it’s not about that) a while back about how what “intellectual conservatives” call Burkeanism is really Fabianism.

  12. Charles
    January 21st, 2012 @ 2:11 am

    No, they’re just going to dip into the general funds. Even Gingrich, who says he’ll take them off book so he can run pretend surpluses.

  13. Charles
    January 21st, 2012 @ 2:22 am

    Is it really unseverable? The argument that Obamacare is uneconomic without the indvidual mandate is impossible of proof. And obviously our current deficits are economic, but apparently constitutional.

  14. Seymour
    January 21st, 2012 @ 3:22 am

    The original article, of course, refers to the long progression of Commerce Clause precedent. It’s your responsibility to learn about it, not Mr. Kerr’s to describe it to you.

    The individual liberty cases (e.g. Lochner through  Bailey) were exceptionally activist. Federal courts went overturned state laws anti-democratically. Can you imagine a more activist court?

  15. Guest
    January 21st, 2012 @ 6:42 am

    If Kerr is attempting to communicate his concepts in order to convince his readership, then YES IT IS  his responisbility to describe Commerce Clause precedent in a transparent and convincing manner.

  16. smitty
    January 21st, 2012 @ 10:04 am

    I’m not doubting the historicity of the Commerce Clause abuse.
    I’m attacking complacency in the guise of ‘Burkean conservativism’.
    Can I imagine a more activist court? In the name of protecting individual liberty from the crushing federal overreach of the last century, the answer is: BRING IT!

  17. Anonymous
    January 21st, 2012 @ 10:10 am

    Cite, please. Oh, and even if someone says that they will, it doesn’t matter (other than to confirm they’re lying). Taking enough revenue out of the economy to pay what’s required will crash it. Period. End of story. As I said, what can’t continue, won’t.

  18. ThomasD
    January 21st, 2012 @ 10:16 am

    Two additional thoughts:

    1.  I sure would like to see Kerr square his purported Burkean respect for stare decisis with Obamacare’s MASSIVE violation of our SCOTUS recognized right to privacy as spelled out in Roe v. Wade.

    Either the government has no business intruding on this most personal and private doctor-patient relationship, or the commerce clause trumps such concerns.  In which case a law banning all abortion is entirely within the Constitutional limits of  the Federal government.

    You simply cannot have both.  At least not without stretching our language beyond the limits of any Orwellian nightmare.

    2.  I am in desperate need of a full time proofreader.

  19. Quartermaster
    January 21st, 2012 @ 10:22 am

    A court that is not “activist” would be pretty useless. The question is the direction of the activism, constitutional/rule of law, or anti-Liberty. So far, the courts have been the latter rather than the former.