Thursday, June 28, 2012

Chief Justices John Roberts and Roger Taney

Calm down; calm down! Maybe it’s not as bad as it seems. Maybe the fine print in Chief Justice Roberts’ opinion may limit the statute.

First thoughts can be dangerous when emotions are involved in reacting to a decision, such as the approval of the individual mandate, without calming down and being objective.

Having said that though, as soon as Chief Justice John Roberts was identified as authoring the majority opinion, Chief Justice Taney popped into mind.

Roger Taney was a close adviser to President Andrew Jackson, who appointed Taney as Chief Justice of the Supreme Court to succeed the esteemed John Marshall. Chief Justice Taney served from 1836 until his death in 1864.

He was generally regarded as an able jurist and competent administrator of the Court. He was the first Roman Catholic appointed to the Supreme Court. His law partner was Francis Scott Key.

Yet he is dammed in history because he authored the infamous 7-2 Dred Scott decision. The 1857 decision was not the cause of the Civil War, but it added fuel to the abolitionist fires.

The opinion was outrageous not only for its holding that Congress had no authority to restrict the spread of slavery to federal territories, thereby holding the Missouri Compromise unconstitutional, but also because the decision denied standing to Dred Scott, who argued that he was now a free slave.

Chief Justice Taney held that Dred Scott, as a slave, lacked standing to sue, because slaves were not protected by the Constitution. Indeed, looking to European history and the Founding Fathers, the jurist wrote that African Americans were an “inferior order,” who held no rights the white man was bound to respect.

Dred Scott is rightly regarded as one of the worse Supreme Court decisions of all time.

I submit that Chief Justice Roberts’ opinions in the Arizona and ObamaCare decisions are just as pernicious. They betray the fundamental principles of federalism with the federal government being a government of limited powers.

They fundamentally redefine the powers of the federal government versus the states and the people. Arizona substantially limited the sovereignty of states, increasing the powers of the federal government even when it chooses to not enforce the law.

Today’s decision may have rejected the Commerce and Necessary and Proper Clauses as the basis for broad Congressional powers, but the Taxation Clause can now be used by Congress to regulate any aspect of personal conduct. Chief Justice Marshall recognized in his famous 1819 McCulloch v. Maryland decision “the power to tax is the power to destroy.”

The Tenth Amendment is now a nullity. It states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Arizona striped the Tenth Amendment from the states and today’s decisions from the people.

Ironically, Justice Kennedy was viewed as the Justice most likely to uphold ObamaCare. He read the dissent arguing the entire statute should be struck down.

No comments: