More death throes of the Constitution. Nothing remains in the ruins but politics.

Summary:  As the Constitution nears the time for its Last Rites, its enemies become bolder.  Reports of blows to the Constitution, even de facto repeal of specific provisions, become unremarkable blips in the daily news.  But some blows are larger than others. June 2012 might be a historic month for the Second Republic, worth marking with a black border on your calendar.

“The single most important thing we want to achieve is for President Obama to be a one-term president”
— Mitch McConnell (Senate Minority Leader), interview with the National Journal, 23 October 2010

What price is the GOP willing to pay? What will they sacrifice?  In the fourth year of Obama’s term we see the answers.  America.  The Constitution.


  1. Diluting the Sixth Amendment, a warm-up to the main event
  2. The main event: repealing ObamaCare
  3. For More Information

(1)  A warm-up to the main event

Diluting the Sixth Amendment“, Scott Lemieux (Asst Prof of political science at the College of Saint Rose), The American Prospect, 18 June 2012 — Excerpt:

The case today concerns the right to confront experts who produce forensic evidence. The Court has recently held — correctly, in my view — that the Confrontation Clause means that if states introduce forensic evidence compiled by experts it must make these experts available in court if the defense requests it. Today’s case represented Illinois trying to make an end-run around these precedents by having a state employee who was not involved in producing the forensic evidence — in this case, a DNA test of semen from a vaginal swab in a sexual assault trial — testify about the results. The defendant was not given the opportunity to cross-examine the private analysts who actually produced the evidence, and hence could not inquire in Court about whether proper procedures were followed. But the Court held that this did not violate the Sixth Amendment.

… As Justice Kagan says in a quite brilliant dissent, “Justice Thomas’s approach, if accepted, would turn the Confrontation Clause into a constitutional geegaw — nice for show, but of little value. The prosecution could avoid its demands by using the right kind of forms with the right kind of language.”

… Today, the Court preserves this {sixth amendment} in theory but guts it in practice.


(2)  The main event: repealing ObamaCare

The GOP has discovered the power of a total focus on politics.  Defeating Obama takes precedence over the needs of America, no matter how pressing.  Past beliefs, no matter how strongly held and often stated, get abandoned.  Now they carry that strategy from Congress to the Courts. There are ample precedents for this is US history, but magnitudes matter — and seldom has politics been pursued so such a degree that Congress becomes impotent and the Courts become blatant political actors.  At some point this will rip the social fabric of the Second Republic, the informal that support the Second Republic.

Kevin Drum tells the story of the evolution of Obama’s health care law.  He skips the early stages, from conservative proposals to highly lauded GOP success in Massachusetts to its adoption by Obama.  The story starts with its signing by Obama and the immediate, implacable opposition of the GOP — and how their victory might shape the Republic.

But first Kevin Drum explains the bottom line of these events.  It’s not the specifics of ObamaCare, but the process that might be used to gut it.

(a) Clock ticks down whether we’ve entered new era American politics“, Kevin Drum, Mother Jones, 18 June 2012:

This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don’t even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a conservative talking point then they’re on board. And that goes all the way up to the Supreme Court.

… If the court does overturn the mandate, it’s going to be hard to know how to react. It’s been more than 75 years since the Supreme Court overturned a piece of legislation as big as ACA, and I can’t think of any example of the court overturning landmark legislation this big based on a principle as flimsy and manufactured as activity vs. inactivity.

… It would mean that the Supreme Court had officially entered an era where they were frankly willing to overturn liberal legislation just because they don’t like it. Pile that on top of Bush v. Gore and Citizens United and you have a Supreme Court that’s pretty explicitly chosen up sides in American electoral politics. This would be, in no uncertain terms, no longer business as usual.

(b) Unpopular Mandate – Why do politicians reverse their positions?“, Ezra Klein, The New Yorker, 25 June 2012

In 2007, both Newt Gingrich and John McCain wanted a cap-and-trade program in order to reduce carbon emissions. Today, neither they nor any other leading Republicans support cap-and-trade. In 2008, the Bush Administration proposed, pushed, and signed the Economic Stimulus Act, a deficit-financed tax cut designed to boost the flagging economy. Today, few Republicans admit that a deficit-financed stimulus can work. Indeed, with the exception of raising taxes on the rich, virtually every major policy currently associated with the Obama Administration was, within the past decade, a Republican idea in good standing.

… On March 23, 2010, the day that President Obama signed the Affordable Care Act into law, 14 state attorneys general filed suit against the law’s requirement that most Americans purchase health insurance, on the ground that it was unconstitutional. It was hard to find a law professor in the country who took them seriously.

  • “The argument about constitutionality is, if not frivolous, close to it,” Sanford Levinson, a University of Texas law-school professor, told the McClatchy newspapers.
  • Erwin Chemerinsky, the dean of the law school at the University of California at Irvine, told the Times, “There is no case law, post 1937, that would support an individual’s right not to buy health care if the government wants to mandate it.”
  • Orin Kerr, a George Washington University professor who had clerked for Justice Anthony Kennedy, said, “There is a less than 1% chance that the courts will invalidate the individual mandate.”

… Orin Kerr says that, in the 2 years since he gave the individual mandate only a 1% of being overturned, 3 key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”

Jack Balkin, a Yale law professor, agrees. “Once Republican politicians say this is unconstitutional, it gets repeated endlessly in the partisan media that’s friendly to the Republican Party” — Fox News, conservative talk radio, and the like — “and, because this is now the Republican Party’s position, the mainstream media needs to repeatedly explain the claims to their readers. That further moves the arguments from off the wall to on the wall, because, if you’re reading articles in the Times describing the case against the mandate, you assume this is a live controversy.” Of course, Balkin says, “if the courts didn’t buy this, it wouldn’t get anywhere.”

… At the Washington Monthly, Steve Benen (9 November 2011) kept track of the placement that the Times and the Washington Post (where I work) gave to stories about court rulings on the health-care law. When judges ruled against the law, they got long front-page stories. When they ruled for it, they got shorter stories, inside the paper. Indeed, none of the cases upholding the law got front-page coverage, but every rejection of it did, and usually in both papers. … the effect was repeated news stories in which the Affordable Care Act was declared unconstitutional, and few news stories representing the legal profession’s consensus that it was not. The result can be seen in a March poll by the Kaiser Family Foundation, which found that 51% of Americans think that the mandate is unconstitutional.

… All this suggests that the old model of compromise is going to have a very difficult time in today’s polarized political climate. Because it’s typically not in the minority party’s interest to compromise with the majority party on big bills — elections are a zero-sum game, where the majority wins if the public thinks it has been doing a good job — Washington’s motivated-reasoning machine is likely to kick into gear on most major issues. “Reasoning can take you wherever you want to go,” Haidt warns. “Can you see your way to an individual mandate, if it’s a way to fight single payer? Sure. And so, when it was strategically valuable Republicans could believe it was constitutional and good. Then Obama proposes the idea. And then the question becomes not ‘Can you believe in this?’ but ‘Must you believe it?’ ”

And that means that you can’t assume that policy-based compromises that made sense at the beginning will survive to the end, because by that time whichever group has an interest in not compromising will likely have convinced itself that the compromise position is an awful idea — even if, just a few years ago, that group thought it was a great one. “The basic way you wanted to put together a big deal 5 years ago is that the thoughtful minds in one party would basically go off and write a bill that had 70% of their orthodoxy and 30% of the other side’s orthodoxy and try to use that to peel off 5 or 6 senators from the other side,” Grumet says. “That process just doesn’t work anymore.” The remarkable and confusing trajectory of the individual-mandate debate, in other words, could simply be the new norm.

(3)  For More Information

(a)  Background information from the conservatives at the Volokh Conspiracy

Their brilliant analysis is always interesting to read, remembering that they’ll support without limit almost any expansion of government power (so long as it does not involve property, religion, or guns).

(b)  For all posts about this see these FM Reference Pages

(c)  Some posts of special relevance

17 thoughts on “More death throes of the Constitution. Nothing remains in the ruins but politics.”

  1. Since I was unaware of the Sixth Amendment case I read the background material until I got bored. I was already familiar with the second issue and the problems with using the Wickard v. Filburn case to justify the Individual Mandate. I think it is likely the Supreme Court will try to fix the mistakes it made in the Wickard v. Filburn case rather than over turn it. The Sixth Amendment case will continue to be an obscure ruling and the Individual Mandate ruling will hopefully clear up sloppy judicial reasoning in the Wickard case. Neither of these issues are big Constitutional questions. As Mark Twain once said, “The reports of my death are exaggerated”.

    1. Perhaps. Only time will tell.

      But irrespective of these two specific issues, the trend is clear — as Congress and the Courts erode our rights, bit by bit. But then we don’t care, so it’s OK. We’ll miss them when they’re gone.

    2. Follow-up note: these post have received such comments since 2003. “No big deal. Nothing happening. Don’t worry.” In retrospect, those complacent comments appear very wrong.

      My guess is that Huber’s comment will look the same in a few years, in that this trend will continue.

    3. I agree that Congress and the Courts may erode our rights in the future but if the Supreme Court rules to overturn the Individual Mandate they will probably restore a more traditional concept of interstate commerce like we had prior to 1942. In this case they would be restoring rights rather than eroding them. This demonstrates that the judicial precedent process can work in both directions. What I found amazing was that the skepticism expressed by the justices about the Individual Mandate echoed the skepticism expressed by the general population. Although the justices may ultimately rule differently than the general population, the arguments for and against the Individual Mandate had its day in court and is further proof that the judicial system set up by our founding fathers is alive and well. Justice is still one of those rights we treasure.

      The trend is not clear to me that Congress and the Courts will be successful at eroding our rights. If there was a plan to erode our rights then the Second Amendment would have to be at the top of the list of rights to be curtailed. It is with great irony that the one unqualified success of the Obama administration has been the explosion in gun sales. With self reported gun ownership at all time highs it is difficult to imagine how the administration would try to restrict our right to bear arms even if they had some ulterior motive to pursue it.

      It is equally difficult to see how Congress and the Courts can expand our rights. A multitude of new rights have been proposed that are not yet constitutional rights. The granddaddy of these new rights has to be the Second Bill of Rights. In 1944 President Roosevelt proposed a Second Bill of Rights that included guaranteed medical care or as we know it, universal health care. In the almost seventy years since he proposed the Second Bill of Rights we still cannot agree on what constitutes universal health care or how to afford it. A common problem with expanding or adding a right is how do we pay for it. Recent history has shown that it is increasingly dangerous for legislators to ignore the financial impact of each new right so I suspect that our judges will be equally leery to ignore it. As we make the inevitable progress toward a balanced budget economy it is increasingly unlikely we will expand rights when we cannot afford our current rights. The fact that we have to choose what we can and cannot do is a sign of a normally functioning government and not a constitutional issue. Most of the state and local governments are examples of governments that routinely make these decisions. The only state governments we would label as being in the “death throes” are those governments like California, Illinois, and New Jersey whose legislators routinely made poor decisions about expanding rights and are now paying the political price for their decisions. Unfortunately for those states I along with many other people who do not live in those states view their problems as “No big deal. Nothing happening. Don’t worry.” Some problems are less important than others. It is what it is.

      1. (1) “but if the Supreme Court rules to overturn the Individual Mandate they will probably restore a more traditional concept of interstate commerce like we had prior to 1942.”

        It’s an odd legal system if stare decisis (from “to stand by decisions and not disturb the undisturbed”) means that 70 years of precedents gets so easily rolled back. That’s 31% of US history. Especially when its such a blatant political move, with discovery of this pressing need only popular when necessary to defeat an Obama initiative.

        (2) “echoed the skepticism expressed by the general population”

        Yes, we have become a people so easily influenced by propaganda. It makes us so easily governed (a change from our forefathers).

        (3) “The trend is not clear to me that Congress and the Courts will be successful at eroding our rights.”

        Given events since 9/11, there’s nothing more to be said. If you don’t know what’s happened, then the Republic will be dead and buried before you notice.

        (4) “If there was a plan to erode our rights then the Second Amendment would have to be at the top of the list of rights to be curtailed”

        Big boys with guns! Perhaps the government sees you as sheep with guns. After all, the Bill of Rights has been slowly dismantled without so much as a letter-writing campaign.

        The posts about this on the FM website — and many conservative websites — about this trend feature lots of people auditioning for jobs with the secret police I(Go torture! Go illegal surveillance!) . The essence of freedom is a people who value the machinery of the Republic. Guns are immaterial if that’s missing, as it appears to be in America today.

        (5) “It is equally difficult to see how Congress and the Courts can expand our rights.”

        Other than the rights for slaves, women, and gays. More broadly, you show quite a distain for the Constitutional machinery to think that it shut-down in 1783.

  2. Re: the DNA cross-examination case: It appears that the defendant’s access to a fair trial in cases like this one is often further impeded by rampant jury packing. Prosecutors in the US today are generally given broad discretion to effectively exclude any jurors who seem likely to be skeptical and to give the defendant a fair hearing by making the state prove its case. They’re able to basically cherry-pick jurors so that juries aren’t so much checks on the executive and the judiciary as they are rubber stamps for a capricious and incompetent government.

    For example, courts hearing capital cases generally dismiss jurors who have been challenged with cause by the prosecution for opposing capital punishment, despite studies showing that such jurors tend to be frankly too credulous before the prosecution to give defendants an impartial hearing. This probably explains some of the large number of death row exonerations (and worse, death row inmates wrongly executed or left to fester in prison despite compelling evidence of their innocence) in recent years.

    It strikes me as patently absurd and specious to claim that the Founders had this state of affairs in mind when they provided for jury trials.

    1. “Prosecutors in the US today are generally given broad discretion ”

      How true. In the words of Sol Wachter (former chief justice of NY’s highest court), prosecutors have so much control over grand juries that they can get them to “indict a ham sandwich.”

  3. We can certainly hope that the sixth amendment ruling in the lower court will remain an obscure ruling, a form of dead-letter law. This sometimes happens. Did you know that the Alien and Sedition Acts of 1798 was never officially overturned by any court? The Virginia and Kentucky Resolutions denounced the Alien and Sedition Acts at the state level, but the Acts were never officially nullified at the federal level. So I believe technically the Alien and Seditions Acts are still law, but in practice they have been so thoroughly ignored, and federal agencies so universally refuse to enforce them, that in practice they no longer exist.

    My own guess? As America sinks ever deeper into barbarism, we are heading back to prehistoric modes of justice. In certain primitive tribes, guilt or innocence is determined by poisoning a chicken and sitting the members of the tribe in a circle around it. As the chicken totters around, it eventually falls in front of someone, and that person is deemed guilty and executed.

    After the fall of the Roman Empire, justice returned to pre-Roman modes. The Goths and Franks determined innocence by forcing an accused to put his hand in boiling water. If the hand healed, he was judged innocent. During the witch hunts of the fourtheenth through eighteenth centuries, guilt was determined by submerging the accused under water: if the accused survived he was guilty and hanged. If he drowned, he was judged innocent and given a Christian burial in hallowed ground.

    America has now regressed to a prehistoric state of justice in which each citizen is considered innocent until proven suspected, and everyone has the right to peaceably assemble in public dissent against the government policies until beaten and tased and LRAD-blasted into deafness and nervous system collapse. Attorney General Eric Holder has now defined “due process law” as firing a Hellfire missile at a victim from a drone circling 10,000 feet overhead without charging the accused with committing a crime, much less a trial. Out of more than 3000 victims murdered by drone, only 38 have been identified as terrorists — the rest were innocent children and women. Our modern version of the poisoned chicken.

    Ethnological studies show that the main cause of death in primitive tribes is being accused of witchcraft. If anything bad happens in a primitive tribe — say, a hunter breaks a leg, or a snake bites a child, or a wife falls ill — the hunt immediately ramps up for the sorcerer who caused it. Rituals like the poisoned chicken then identify the sorceror, who then gets publicly executed to cleanse the tribe of evil juju.

    America seems to be heading back to this model of justice. The NDAA defines “material support for terrorism” so broadly and so vaguely that it is equivalent to an accusation of sorcery. Perhaps in the near future a newly-elected president will sacrifice children during his inaugural ceremony in the manner of the Mayans, in order to cleanse Washington D.C. of evil juju.

    1. (1) “Did you know that the Alien and Sedition Acts of 1798 was never officially overturned by any court?”

      That’s because the Supreme Court created its power of judicial review via Marbury v. Madison in 1803. The two key Acts of 1798 had already expired in 1800 and 1801. The Naturalization Act of 1798 had been repealed by the Naturalization Law of 1802.

      The last of the Acts, Alien Enemies Act (officially An Act Respecting Alien Enemies; ch. 66, 1 Stat. 577), authorized the president to apprehend and deport resident aliens if their home countries were at war with the United States of America. Enacted 6 July 1798, and providing no sunset provision, the act remains intact today as 50 U.S.C. §§ 2124.

      (2) “As America sinks ever deeper into barbarism, we are heading back to prehistoric modes of justice.”

      I think that’s an unlikely outcome. We have had civilization for four thousand years. Can you cite any cases of such a think happening?

  4. Pingback: More death throes of the Constitution. Nothing remains in the ruins but politics. | Speak Liberty NOW

  5. FM states: “We have had civilization for four thousand years. Can you cite any cases of such a think happening?”

    Let’s start with “Drone strikes threaten 50 years of international law, says UN rapporteur“, The Guardian, 21 June 2012. Then let’s move on to the several hundred people still in jail on satanic cult child molestation charges as a result of the “Satanic ritual abuse” panic of the 1980s. Wikipedia:

    “The panic was influenced to a large extent by testimony of children and adults that was obtained using therapeutic and interrogation techniques now considered discredited. Initial publicity generated was by the now-discredited autobiography Michelle Remembers (1980), and sustained and popularized throughout the decade by the McMartin preschool trial. Testimonials, symptom lists, rumors and techniques to investigate or uncover memories of SRA were disseminated through professional, popular and religious conferences, as well as through the attention of talk shows, sustaining and spreading the moral panic further throughout the United States and beyond. In some cases allegations resulted in criminal trials with varying results; after seven years in court, the McMartin trial resulted in no convictions for any of the accused, while other cases resulted in lengthy sentences. Scholarly interest in the topic slowly built, eventually resulting in the conclusion that the phenomenon was a moral panic.”

    The terrorism panic of the 2010s is a similar moral panic, resulting in similar Salem-Witch-Hunt-style illegalities. In all cases people are being killed or imprisoned or tortured because of rumors, without due process of law (although Attorney General Eric Holder does claim that killing children in foreign countries with Hellfire missiles fired by drones is “due process of law,” if you want to take that assertion seriously). Sounds like prehistoric tribal panic and mass murder or imprisonment of anyone suspected of “evil juju” to me.

    1. Moore,

      Your statement was “As America sinks ever deeper into barbarism, we are heading back to prehistoric modes of justice.” I don’t see anything “prehistoric” in your two examples. Not only are such forms of bad behavior commonplace in history, these are mild in comparison with the violence and injustice that fills the blood-soaked record of history.

      Perhaps you meant “prehistoric” as a metaphor for “bad”. Were prehistoric (ie, broadly speaking, pre-bronze-age societies — including tribes) more or less just than ours? A good question, and beyond my pay grade. It’s worth some thought.

  6. Is it not the case that the dominant forms of government throughout human history have been tyranny, oligarchy, monarchy and feudalism? Have not the episodes of democracy been few and in most cases fleeting? We are, perhaps, right now at the historical high tide of democracy. Will the tide recede? I hope not. I fear so.

    1. Another great question!

      These things area matter of the time frame one looks at! For most of human history (5 thousand years) most societies in most places been tribes and chiefdoms (see Wikipedia). So governments are a development, an evolution — showing that history has directionality in political/social forms as well as technology.

      So that the fact that democracy has been rare in the past need not define our future.

      We can go one step further. Our form of democracy differs from that of city-states (eg, Athens, Venice) or Rome. So we have evolution in forms of democratic government, which probably has not ended with the Second American Republic (now in decline, perhaps terminal).

  7. That was then, this is now. Precedent means nothing compared to the overwheming priority of politics.

    Excerpt from “Justices Say U.S. May Prohibit the Use of Medical Marijuana“, New York Times, 7 June 2005 (bold emphasis added):

    Justice Scalia, by contrast, explained himself at length. He did not sign the majority opinion, instead offering a separate concurring opinion that was no less definite in its support for federal authority. ‘Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce,’ Justice Scalia said. He cited opinions from the early 1940’s, after the Supreme Court rallied to support the New Deal and gave Congress a degree of power over national affairs that was not seriously challenged until the Rehnquist Court began invalidating federal laws in the mid-1990’s.

    … As a prime mover of the court’s federalism revolution, Justice O’Connor did not hide her dismay. The court’s opinion provided a roadmap to ‘removing meaningful limits on the Commerce Clause’ and ‘threatens to sweep all of productive human activity into federal regulatory reach,’ she said….

    The sharpest dispute was over the meaning of two of the core decisions of the Rehnquist Court’s approach to federalism. Both struck down federal laws, the Gun-Free School Zones Act and the Violence Against Women Act, on the ground that they exceeded Congressional authority, and both were decided by five-member majorities that included Justices Kennedy and Scalia. While Justice O’Connor declared that the marijuana decision was ‘irreconcilable’ with the earlier ones, Justice Scalia disagreed. Neither of the earlier decisions ‘involved the power of Congress to exert control over intrastate activities in connection with a more comprehensive scheme of regulation’ comparable to federal drug laws, he said…

  8. Pingback: Obamacare and the Revenge of the ‘Secret Constitution’ by William Norman Grigg (“… the mission of Abraham the Destroyer was not to preserve the constitutional union, but rather to impose a new order – one created through aggress

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