July 3, 2012
My take on Roberts...
David commented here:
I think it's a good strategy for the MSM. You wear down Romney by telling people he's ducking the issue, and Romney eventually gets weary. It worked against Roberts, didn't it?
I think we will have to wait and see with Roberts. I suspect he's playing a deep game, and we will look back twenty years from now and see it. See that he was planning chess moves far in advance. I read somewhere that when he was a young conservative lawyer just getting started in DC, he would never comment on controversial legal issues. Presumably because he was looking forward to a future judicial nomination.
Sounds like a "steely-eyed missile man" to me. Not somebody who gets "worn down" easily. Not someone who gets flustered by criticism from the gasping media. (Or from conservatives either.)
The thing is, most people don't have any philosophy. They have never thought deeply about what they believe—just picked stuff up from their milieu. You put them in a different environment, and their views morph, without any thought. Like a chameleon
changes its colors. That's what we've seen happen with horrid amphibians like David Souter. Move him from New Hampshire to DC, and he mimics the local coloration. And is probably perfectly unaware that he has changed. The new palate just seems obvious
, and the old one a distant dream.
People are just assuming Roberts is a chameleon too. I doubt it. Many people have pointed out ways that this decision fits with a long-term plan to overturn many items of lefty over-reach by our "imperial judiciary." I think that's happening.
You can remember this, and laugh at me if Roberts turns out to be a liberal squish!
UPDATE: POLITICO, Liberals fear the John Roberts rebound :
...Liberals who celebrated the Supreme Court’s decision on health care may be nursing an ugly hangover after the justices dive back into their work this fall, with a docket likely to be loaded with controversial cases.
And left-leaning courtwatchers are already worried about the jurist who brought them such relief last week: Chief Justice John Roberts.
Some liberals contend that Roberts’s surprise crossover on the health care law has given him a free hand to craft and sign onto a slew of conservative opinions next year without suffering much of a public drubbing from Democrats and the press. With one major case, Roberts may have inoculated himself and the court against charges of partisanship....
UPDATE. Which made me laugh...
From The Corner ...Following up on Jan Crawford’s reports that Chief Justice Roberts switched his vote while drafting his opinion, thus prompting Justices Kennedy, Alito, Scalia, and Thomas to write a rare joint dissent, Salon’s court watcher Paul Campos says he has it from a top source that Roberts in fact wrote much of the dissent, as well:...
Mastermind! I have this mental picture of John R grabbing the dissent away from Kennedy, and saying, "You write like a girl! Let me do it!"
Posted by John Weidner at July 3, 2012 8:41 AM
Politico is spinning you. More than most, Modern American Leftists simply don't care about facts or history, every day is brand new. So anything they said about Roberts yesterday will have no effect on what they say about him next week or next year. There is no "innoculation" from the MAL. If you believe Politico, then you don't believe any MALists are currently praising Roberts because that goes against what was thrown against him just a few weeks ago.
Leftists may not care, but the "swing votes" sometimes come up for air, and they will notice....
All of it may be true but Lawrence Auster at View from the Right has documented Justice Robert's nonconservative inclinations since before he got to become a supreme.
Also there is recent overturning of Stolen Valor Act where Justice Roberts concurring with the liberal supremes that it is unconstitutional criminalize lying about getting military honors.
"Also there is recent overturning of Stolen Valor Act where Justice Roberts concurring with the liberal supremes that it is unconstitutional criminalize lying about getting military honors."
Lots of conservatives would agree with Roberts. We don't want the Federal government to be a universal tyrant-governess, punishing every misdeed and passing out lollipops for every good deed.
Be careful, your liberalism is showing. You agree with ALL five liberal judges against three conservative judges!.
And look at his reasoning-lying in commercial speech is criminal since it may bring illicit material gains but what about illicit gains in honor?
Well honor is nothing, it is not material, It can't be measured in dollars.
It is a fine example of nihilist reasoning, I should say.
"Well honor is nothing, it is not material, It can't be measured in dollars."
I know nothing about this decision, and don't have time to research it. But I'd say as a general rule that it is proper for courts to ignore things like honor. Not because of nihilism, but because they are intangible and undefinable.
You can't sue someone for breaking your heart with false declarations of love. Not because the law thinks there is no such thing as love, but because it is too slippery a subject for the law to get a grip on.
Yes, I was original opposed to this decision but after a discussion with someone else, I was persuaded that it was correct for basically the reasons Mr. Weidner notes. I wonder, though, if you could be prosecuted under copyright / trademark infringement. If I put a Campbell's soup label on cans of used dish water and give it out (at no benefit to myself), can't Campbells attack me on that basis?
Campbell's, sure. Tigers ain't in it.
But I don't think public documents etc can be copyrighted or trademarked.
It is apparently a crime to falsely wear military medals.
And not to lie about it.
I should have thought it a capital matter to lie about military honor esp in a country that values military honor.
PS Honor is intangible NO- it is immaterial but certainly not intangible or indefinable.
PPS Wasn't breaking a promise to marry a crime in 19C?, Mr Pickwick was arrested for it, and it is also a theme in a lot of PG Wodehouse.
Gian, you are not using words clearly. Breach of Promise was a crime, because it was breaking a contract. Love had nothing to do with the legal issue.
Likewise, one can pass a law against wearing medals falsely. And you can say this is about honor, but the law is not about honor. It can't be, because there is no way to define honor such that there can be a fair trial about it.
It is easy to get confused, because medals are sometimes called "honors." But that's not the same concept as is meant when one says "military honor."
"but certainly not intangible or indefinable."
So define it. Or make it tangible...
I don't think public documents etc can be copyrighted or trademarked.
Postage stamps are a counter example. The CIA logo is another (although that is a separate law rather than copyright law). It seems there are reasonable precedents. This wouldn't apply to personal, private speech, but could well apply to published works.
There is also an argument that lies do not have First Amendment protection per se.
Tangible has two meanings as per 1913 Webster
1. Perceptible to the touch; tactile; palpable.
2. Capable of being possessed or realized; readily apprehensible by the mind; real; substantial; evident
"Honor" is tangible by 2nd meaning.
I didn't ask for the definition of the word tangible. I wrote "make it tangible."
You can't make "honor" tangible. Not in any way that could be grasped in an action at law.
I should repeat, for clarity, that I don't think honor is nonexistent or unimportant. Just the opposite.
But it's like the judge said about pornography, "I can't define it, but I know it when I see it."
I mentioned this to my wife the lawyer, and she said something like, "the law has to use objective standards. Because the law is based on equality. If it uses something that is subjective, like honor, you can't guarantee a fair trial.
Here’s another conservative gnostic—i.e. another conservative hopeless idiot who thinks he’s smart—who seriously believes that John Roberts’s decision is part of “deep game,” being played out over decades, to out-fox and defeat the left.
"another conservative hopeless idiot who thinks he’s smart"
This is a good example of the logical fallacy called the "ad hominem argument." If you can't refute someone's points, you call them names. Pathetic. Flabby. Bourgeois.
What kind of "deep game" is it to rule that Congress can achieve otherwise unconstitutional infrigements on liberty as long as they do it in the guise of the taxing power? There is nothing left off-limits.
"Oh we're not banning ownership of guns! Farthest thing from it - we're just *taxing* gun ownership at $10k/yr/gun."
"Oh we're not infriginging on free speech rights! Say all the conservative things you want, we wouldn't think of prohibiting that - we're only *taxing* it at $1,000 per utterance."
This is not "deep game". This is a man who either doesn't really get conservatism or a coward who was afraid to be blamed for overturning a massive new government program.
The government already has the power to tax things like firearms. And it routinely uses taxes to discourage behavior it does not like, such as smoking and drinking. Roberts did not give the state any new taxing power.
But this taxing power never proceeds to things like the Health Care law (ACA). Americans are much more politically resistant to taxes than to regulations. (This is absurd and illogical, since there's no real difference between not buying a gun because of a regulation, and not buying a gun because of a tax.)
If the ACA had been billed as a tax in the beginning, it would never have passed.
And the reaction of people like you confirms this. You see "tax" and go crazy. Even though the Commerce Clause is a much greater threat to your liberties, and has been since the 1930's. But you hardly notice.
We've won a major conservative victory, and our enemies can't consolidate their opposition because they "won" the case. Sounds like a deep game to me.
Honor is subjective???
That would be some kind of logical positivism.
If a thing can not be measured, it does not mean that it is subjective and it can have no legal standing.
I am afraid you have been noticed at View from the Right (Lawrence Auster)in a rather uncomplimentary
"Here’s another conservative gnostic—i.e. another conservative hopeless idiot who thinks he’s smart—who seriously believes that John Roberts’s decision is part of “deep game,” being played out over decades, to out-fox and defeat the left."
John.....you do understand that the commerce clause was not limited in this case, don't you ? What Roberts wrote was usless dicta. This ruling indeed breaks new taxing ground. It taxes inactivity. Auster is indeed rude & crude, but that's who he is. Still, he's right and you are so wrong that it's mind-numbing.
I'm afraid you're wrong - Roberts did give the federal government new taxing power. He decided that the government's taxing power trumps all other constitutional limits. He decided that an Act which is otherwise an unconstitutional infringement on our rights is permissible as long as it is framed as a tax. It used to be, for example, that "Congress shall make no law infringing the freedom of speech", etc, but now it has been unilaterally eviscerated by Roberts to effectively read "Congress shall make no law infringing freedom of speech unless it is called a tax."
You console yourself by saying that taxes are unpopular, so we needed worry that Congress has been given a green light to uses taxes to accomplish ANYTHING it wants, because they would never do that. Yeah, right. They won't do that until the day they do that. Do you really think that if the liberals get a majority in the House again that they wouldn't use this new unlimited taxing power to discourage firearm ownership, speech they dislike, and to otherwise further their agenda?
The whole point of the limits of the Constitution was to say that there were things the government simply could not do, period. Now those have been removed and people like you try to tell us not to worry because they wouldn't dare to actually use this new power.
When have progressives ever shied away from imposing taxes? Hell, they forced Obamacare down our throats without a single Republican vote in Congress, and by using loopholes and backroom tactics. It's only the weak Republicans who are ever held back from taking bold action by their fear of how they will be perceived.
Don't presume to tell me that "people like me" don't recognize the Commerce Clause as a threat. I've recognized that as a threat for decades. But Roberts has made it irrelevant. Democrats need never worry about Commerce Clause limitations again. They need simply call whatever they want to pass a "tax", and it will pass constitutional muster.
And they don't even have to call it a tax in public! Already they refuse to call ObamaCare a tax, regardless of what Roberts said. They came right out and said it's a penalty, not a tax, right after Roberts' ruling. They can simply use whatever words they want to use to sell it to the public, and then, buried somewhere in the 2700 pages of the actual legislation that no one reads, they can call it a tax for purposes of legitimizing it constitutionally. Sure, Republicans can cry that it's a tax, but during those periods when Democrats hold the Presidency and the Congress, they can ram it through like they did ObamaCare secure in the knowledge that Republicans are pussies and won't dare to actually fully repeal it if they get a chance anyway.
This ruling was a disaster. The Democrats get ObamaCare, they get a broad new unlimited interpretation of the taxing power to use at a later date, and in all likelihood they now get Roberts' vote as the swing vote going forward because Roberts is not going to want to seem inconsistent. He has no friends on the conservative wing of the court now and the liberals will happily welcome him with open arms. It's a disaster.
Phil-Cat, the CC was limited. The paradigm of politics since Wikard has been that that govt can do anything under the CC. That's why Pelosi said "Are you kidding?" when asked about the constitutionality of ACA.
That emperor has been shown to have no clothes. You watch, the lower courts will now start nibbling away at things previously done under cover of the CC.
"The whole point of the limits of the Constitution was to say that there were things the government simply could not do, period. Now those have been removed and people like you try to tell us not to worry because they wouldn't dare to actually use this new power."
I didn't say they wouldn't dare, I said it won't work.
But you and I are not "seeing" the Constitution the same way, so we can't really communicate. My take is that the Constitution is pretty much powerless if it is standing alone. The lesson of the 20th century is that if the people want big government (for instance to battle the Depression) they will get it. Of course they will, they are electing the peole who appoint the judges. And there's always going to be some loophole.
The Constitution only works as a tool in the hands of the people. If we are going to have more situations like 2009/2010, with Dems in control of both Congress and WH, your expectations may be right.
I think the 2008 election was a fluke. A "perfect storm" that is not likely to happen again. And that the overall trend is away from "big-government liberalism," which is failing all around us. If this is true, I predict we will look back on the Roberts court as one of those moments when we see the tide starting to turn.
This Auster person does not seem to be a gentleman. But it is good for me to be forced to defend my thoughts. Wakes me up in the morning!