Against the tyranny of the majority 3

Clark M. Neily III and his colleagues at the libertarian Institute for Justice believe the United States would be more just if judges were less deferential to legislatures. In his book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Neily writes that the United States is not “a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede.” America’s defining value is not majority rule but individual liberty.

Democracy may be better than all other systems of government, but it has a serious flaw. It allows a majority of the electorate to exert its will over the rest. A majority does not by virtue of sheer numbers know what’s best for the nation. A majority can be dangerously wrong – as when it elects a Hitler, an Allende, a Putin, a Mugabe, a Chavez, a Carter, an Obama.

Democracy needs to be restrained. Americans look to their courts to preserve them from the tyranny of the majority. Conservatives, whether in power or not, should be firmest in upholding the power of the judicial branch. Knowing this, many conservatives speak out against “judicial activism”, thinking that all activist judges are creatures of the Left. But judicial activism could be a protection against the Left.

Our introductory paragraph comes from an article by George Will, who further writes at the Washington Post where he is one of a very few voices of conservatism and reason:

Many judges …  in practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.

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

This leaves people such as Sandy Meadows at the mercy of government acting as protector of the strong. Meadows was a Baton Rouge widow who had little education and no resources but was skillful at creating flower arrangements, which a grocery store hired her to do. Then Louisiana’s Horticulture Commission pounced. It threatened to close the store as punishment for hiring an unlicensed flower arranger. Meadows failed to get a license, which required a written test and the making of four flower arrangements in four hours, arrangements judged by licensed florists functioning as gatekeepers to their own profession, restricting the entry of competitors. Meadows, denied reentry into the profession from which the government had expelled her, died in poverty, but Louisianans were protected by their government from the menace of unlicensed flower arrangers.

What Louisiana does, and all states do in conferring favors through regulations that violate individuals’ rights, is obviously unjust and would be declared unconstitutional if courts would do their duty. Their duty is to protect individual liberty, including the right to earn a living, against special-interest legislation. Instead, since judicial abdication became normal during the New Deal, courts almost invariably defer to legislatures’ economic regulations, which frequently are rent-seeking by private factions.

Courts justify dereliction of judicial duty as genuflection at the altar of majority rule, as long as the court can discern, or even imagine, a “rational basis” for a regulation — even if the legislature never articulated it. …

Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.

The beginning of wisdom is recognizing the implications of this fact: Government is almost never disinterested. Today’s administrative state is a congeries of interests, each of which has a metabolic urge to enlarge its dominion and that of the private-sector faction with which it collaborates. …

Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit says of “rational basis” jurisprudence: “The judiciary justifies its reluctance to intervene by claiming incompetence — apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm — or deferring to the majoritarian imperative,” which means “the absence of any check on the group interests that all too often control the democratic process.”

This process, Neily rightly insists, is not self-legitimizing, which is why judicial passivity is inconsistent with constitutional government. [And he] argues that to say that judicial invalidations of legislative acts should be rare is no more sensible than saying NFL referees should rarely penalize players for holding.

Conservatism’s task, politically hazardous but constitutionally essential, is to urge courts to throw as many flags as there are infractions.

If conservatives never forgive Chief Justice Roberts for validating the anti-American “Affordable Care Act”, they will be exercising better judgment than he did when he disregarded the essential fact that “America’s defining value is not majority rule but individual liberty”. 

Citizens or subjects? 1

On entering the new year, Thomas Sowell writes:

Whenever we stand on the threshold of a new year, we are tempted to forget the hazards of prophecy, and try to see what may lie on the other side of this arbitrary division of time.

Sometimes we are content to try to change ourselves with New Year’s resolutions to do better in some respect. Changing ourselves is a much more reasonable undertaking than trying to change other people. It may or may not succeed, but it seldom creates the disasters that trying to change others can produce.

When we look beyond ourselves to the world around us, peering into the future can be a very sobering, if not depressing, experience.

ObamaCare looms large and menacing on our horizon. This is not just because of computer problems, or even because some people who think that they have enrolled may discover at their next visit to a doctor that they do not have any insurance coverage.

What ObamaCare has done, thanks to Chief Justice Roberts’s Supreme Court decision, is reduce us all from free citizens to cowed subjects, whom the federal government can order around in our own personal lives, in defiance of the 10th Amendment and all the other protections of our freedom in the Constitution of the United States.

ObamaCare is more than a medical problem, though there are predictable medical problems – and even catastrophes – that will unfold in the course of 2014 and beyond. Our betters have now been empowered to run our lives, with whatever combination of arrogance and incompetence they may have, or however much they lie.

The challenges ahead are much clearer than what our responses will be. Perhaps the most hopeful sign is that increasing numbers of people seem to have finally – after nearly five long years – begun to see Barack Obama for what he is, rather than for what he seemed to be, when judged by his image and rhetoric.

What kind of man would blithely disrupt the medical care of millions of Americans, and then repeatedly lie to them with glib assurances that they could keep their doctors or health insurance if they wanted to?

What kind of man would set up a system in which people would be forced by law to risk their life savings, because they had to divulge their financial identification numbers to strangers who could turn out to be convicted felons?

With all the time that elapsed between the passage of ObamaCare and its going into effect, why were the so-called “navigators” who were to be handling other people’s financial records never investigated for criminal convictions? What explanation could there be, other than that Obama didn’t care? …

Those who have still not yet seen through Barack Obama will have many more opportunities to do so during the coming year, as the medical, financial and other painful human consequences of ObamaCare keep coming out in ways so clear that not even the mainstream media can ignore them or obscure them.

The question then is: What can be done about it? Nothing can be done about Obama himself. He has three more years in office and, as he pointed out to the Russians, he will no longer have to face the American voters.

ObamaCare, however, has no such immunity. It is always hard to repeal an elaborate program after it has gone into effect. But Prohibition was repealed, even though it was a Constitutional Amendment that required super-majorities in both houses of Congress and super-majorities of state legislatures to repeal.

In our two-party system, everything depends on whether the Republicans step up to the plate and act like responsible adults who understand that ObamaCare represents a historic crossroads that will determine what kind of people we are going to be, for this generation and generations yet unborn – citizens or subjects.

This means that Republicans have to decide whether their top priority is internal strife among the different wings of the party – another circular firing squad – or whether either wing puts the country first.

A prediction on how that will turn out in the new year would be far too hazardous to attempt.

We make no predictions today, but we thank our readers and commenters for their interest and contributions, and wish you all a Very Happy New Year!

Posted under Collectivism, Commentary, government, Health, Law, liberty, United States by Jillian Becker on Wednesday, January 1, 2014

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The story of O: becoming a dictator 4

Obama is energetically pursuing his policy of making as many Americans as he can dependent on the government.

This is from the Heritage Foundation:

The imperial Presidency has overturned Congress and the law again. Not content to stop at rewriting immigration policy, education policy and energy policy, yesterday, President Obama’s Department of Health and Human Services (HHS) released an official policy directive rewriting the welfare reform law of 1996. The new policy guts the federal work requirements that were the foundation of the Clinton-era reform. …

Welfare reform replaced the old Aid to Families with Dependent Children with a new program, Temporary Assistance for Needy Families (TANF). … The whole point was that able-bodied adults should be required to work or prepare for work as a condition of receiving welfare aid.

This reform was very successful. TANF became the only welfare program (out of more than 70) that promoted greater self-reliance. It moved 2.8 million families off the welfare rolls and into jobs so that they were providing for themselves. Child poverty fell, and single-parent employment rose. Recipients were required to perform at least 20–30 hours per week of work or job preparation activities in exchange for the cash benefit.

Now, Obama’s HHS is claiming that it can waive those work requirements that are at the heart of the law, and without Congress’s consent.

When it established TANF, Congress deliberately exempted or shielded nearly all of the TANF program from waiver authority. They explicitly did not want the law to be rewritten at the whim of HHS bureaucrats. In a December 2001, the non-partisan Congressional Research Service clarified that there was no authority to override work and other major requirements…

But that did not stop the Obama Administration, which has been increasing welfare spending at an alarming rate already. President Obama has added millions to the welfare rolls, and his Administration has come under fire lately for its efforts to expand and add more Americans to the food stamp program. …

Over the past two decades, welfare spending has grown more rapidly than Social Security and Medicare, education, and defense. The TANF reform was one small step in the direction of reducing Americans’ dependence on government programs and getting them back on their feet. Cutting its work component is likely to unnecessarily swell the ranks of welfare recipients and with no way to pay for it.

Heritage experts Robert Rector and Kiki Bradley explained further …:

In the past, state bureaucrats have attempted to define activities such as hula dancing, attending Weight Watchers, and bed rest as “work.” These dodges were blocked by the federal work standards. Now that the Obama Administration has abolished those standards, we can expect “work” in the TANF program to mean anything but work. The new welfare dictate issued by the Obama Administration clearly guts the law.

What can be done about a president who breaks the law, whose administration executes his orders in defiance of the legislature?

Will the Supreme Court stop him? Probably not.

This is from Townhall, by Ken Blackwell:

Chief Justice Roberts shows extraordinary deference to the federal government when the actions of the president or Congress are challenged for exceeding federal powers under the authority clauses. …

Part of the consternation from the Obamacare decision was seeing Chief Justice Roberts engage in linguistic gymnastics to ignore Congress’ word choice in writing the statute and the president’s televised vows, upholding the individual mandate as a tax despite 200 years of precedent that penalties are not taxes. …

This reluctance to unapologetically apply judicial review when authority clauses are implicated bodes ill for many current court challenges. There might not be five votes to succeed in challenges to Dodd-Frank, EPA’s cap-and-trade rules, the FCC’s internet-control rules, the recess-appointment challenges, and other power grabs.

Mr. Obama announced on July 6 in Ohio that this election is about a “clash of visions” about the role of government in our lives, arguing for massive entitlements and regulatory controls. If he wins, he will claim a mandate and take federal power to heights we’ve never seen. We can no longer be confident that the Supreme Court will stop him.

Liberty endures only when each branch fully and fearlessly checks and balances the other two branches. Abdicating judicial review empowers President Obama to subvert the Constitution with an imperial presidency, and fundamentally transform the United States to the detriment of future generations.

One remedy of course is to vote Obama out of office.

But if he is not voted out in November, how will the Republic be saved from becoming a full-blown dictatorship?