To Obama, the precedent is Wickard v. Filburn, not Marbury v. Madison
[NOTE: Bumped up. Scroll down for new posts.]
My new article is up at PJ.
I urge you to go there and read it. Not just because I wrote it, but because I think it deals with something vitally important: what the Obamacare Supreme Court battle is actually about.
You think it’s about health care insurance in this country, and who will pay and how? You’re right. But that’s just the tip of the iceberg. This case is much much bigger than that, and one of the reasons the left is so angry that the Supreme Court even decided to hear it in the first place is what it threatens to overturn: seventy years of extremely liberal precedent.
If you think Obama was dumb when he referred to precedent in his remarks about the case to SCOTUS, and must have been ignorant about Marbury v. Madison, think again. He does know constitutional law, and he has bigger fish to fry.
“And he has bigger fish to fry.” That’s us, all of us, though we are mere minnows.
The Filburn case, which I read some months ago, utterly staggered me. It did nothing to improve my seriously doubting views on SCOTUS, laws, lawyers and the judicial process. In that case, the Federales were entitled to their own facts.
Fine piece, Neo.
Excellent article, Neo. As one of the comments pointed out, a big difference between Filburn and ACA is Filburn was already doing something that the government was trying to regulate. The ACA goes a step further and coerces a person who is doing nothing to enter into a contract with a private company. As one of the SC justices asked, can you create a market in order to regulate it.
The justices also wanted to know if there was any limit on the government’s power to affect commerce. Could they make you buy a new car because the economy was weak?
It also shows what he is ultimately shooting for..
Communism/Fascism…
one does not go to the matresses over a totalitarian power if one doesnt want it.
especially if it gives it in such a way that its seems so ligitimate the people just accept their new slavery position (the way women love having their work taxable and paying for the now 88 million not working)…
Just as in a communist state there are no limits upon the power of the state to compel, no Constitution or Bill of Rights with which to restrain the tyranny of the collective, as dictated by the elite, so too does Obama favor and work toward that condition in America.
Artfldgr is right, he is the public figurehead for that faction within America which seeks to incrementally maneuver American society toward a Socialist/Communist state.
If he wins reelection and the coming fiscal collapse happens during his tenure, the declaration of nationwide martial law will be a temporary necessity. In times of martial law, liberties are substantially reduced.
If he thinks he can get away with it, that is when he will make his move to extend martial law into a de facto state of permanence and, that is when he shall start to nationalize industries and progressively confiscate as much as he can, of the wealth of this nation for redistribution.
And that is when he would be most likely to ‘reluctantly’ use what amounts to the fascism of brute force, justified as necessary to maintain order, while actually in service to his agenda of ‘fundamentally changing’ America.
Letting people do what they want is the essence of laissez-faire capitalism, and therefore anathema to leftists.
All leftist policies (and that includes liberal ones, too, as Leftist Lite) ultimately boil down to compelling someone to do something he doesn’t want to do, but that the leftists think he should do, whether it be recycling, changing eating habits, or buying health insurance.
Notice how everything they propose uses such verbs as “require,” “compel,” or “mandate,” and never verbs such as “allow” or “permit.”
Great article, neo. I think you may be onto something.
I’m no legal scholar (or Constitutional Law Perfesser), but Wickard v. Filburn has got to be without a doubt the most ludicrous Supreme Court decision ever handed down. It’s worse than the Dred Scott decision. At least with Dred Scott, the Court tried to uphold private property rights as they were understood at the time (that human beings could be property).
But Wickard v. Filburn says with a straight face that I’m affecting interstate commerce if I plant tomatoes in my back yard, because then I’m not buying them from the grocery store. Thus, my tomato garden is subject to regulation by the Federal government. Which tends to throw a monkey wrench into the whole idea of private property.
Artfldgr,
I vote fascism, its a leaner form of totalitarianism and it fits BHO’s MO.
GB says, “If he thinks he can get away with it, that is when he will make his move to extend martial law into a de facto state of permanence and, that is when he shall start to nationalize industries and progressively confiscate as much as he can, of the wealth of this nation for redistribution.”
This has been on my mind since March of 2009. I have no doubts about BHO’s not so secret dream to be a dictator.
Parker:
If Baraq loses the election despite the most masive vote fraud the nation has ever experienced, he will still be in office for another 9 weeks. The tumult he and his will cause will make the Clintons look like saints. That is when I fear the martial law shoe may drop, perhaps after a “Reichstag burning”. Of course, if he “wins”, the timing is his to choose.
DHS has signed a contract for 450 million .40 cal rounds. That’s DHS, not DOD. I believe I posted on that earlier here. Something’s afoot, and it’s not good.
Don Carlos says, “DHS has signed a contract for 450 million .40 cal rounds. That’s DHS, not DOD. I believe I posted on that earlier here. Something’s afoot, and it’s not good.”
That is approximately 1.5 rounds per person. They are going to need at least 20 rounds per person and about 30 million more employees. Sheee-it, I reload and have the supplies on hand to produce around 10,000 rounds of .357 Magnum and 5,000 rounds of 8MM for my Mauser. DHS better wear 3 inch thick iron in their hair and forehead to big toe maximum kevlar if they want to come through my door. 😉
There’s what B.O. would like to do and what he can actually accomplish. Should he lose the election, he may well out of spite try to throw a wrench into the gears but in the larger scheme of things, there will be little he can do in the 9 weeks remaining in his term.
As the support needed for a “Reichstag burning” simply wouldn’t exist, not to accomplish that goal.
To accomplish the ending of the our Constitutional Republic will take extraordinary circumstances. Desperate times allow for the acceptance of desperate measures. FDR could never have passed the socialistic legislation he did had the Great Depression not had so many Americans, so scared.
FDR may have been a manipulative genius but he was certainly an opportunistic genius.
Even Hitler’s rise to power owed much to the massive inflation in Germany in their own Great Depression and to a nascent democracy which had not had time to establish itself.
If this country and the West, which are interlinked, experience a fiscal collapse leading to sovereign bankruptcies, there will be nationwide rioting and looting, panic and mass upheaval with starvation a real possibility in the cities. In such an environment, the President declaring martial law will be welcomed.
If Obama’s President, of course he’s going to say that it’s temporary. Once enacted, the opportunity to extend martial law will exist. But even then, I don’t believe the support will exist for him to simply seize power.
Passing legislation however, which permanently enshrines socialism into law, such as nationalizing entire industries and enacting radical policies of redistribution by stealing from the rich and upper middle class, may well be doable.
My father was a teenager in the 30s during the Great Depression living and working on the family farm in Michigan. He told me what seemed an incredible story that he was reminded of when purple potatoes were introduced to the American market in the late 1990s.
The government agriculture officer would come to the family farm at potato harvest time, count the number of people living on the farm and determine how many bushels of potatoes the family would eat over the following year. He would then check his charts as to how many bushels each farm was allowed to sell to the surrounding community. He then added the two quantities and that was what the farmer could keep. Everything over that was doused with a purple dye rendering the excess potatoes unusable by man or beast. The same happened for all other farm products and excess milk was simply dumped on the ground.
The explanation was that if each farmer could grow and produce everything they needed, then they wouldn’t trade with other farmers in the area and money would not be exchanged thus prolonging the economic hard times.
The consequence was that farmers exchanged ten potatoes for ten potatoes and no one made any profit and that, in reality, prolonged the depression. Without the incentive of more money for a larger crop, there was simply an equal distribution of poverty. A lot of farmers went out business because farming wasn’t worth the trouble without the reward.
Gosh Geoffrey, you are thinking what I am thinking which means I not a singular paranoid in the heartland.
Wicked v. Us!
If the government can control what we produce in our fields, then it controls what we produce in our minds.
Consider, if you were this person called Satan and you hated scientfiic advancement because scientific advancement promotes human welfare, and as the enemy of God’s creation, you are against that, what would you do!
Global warming, anyone. Come worship Satan, and get a free global warming certificate.
Neo! Please!
P.S. the preview let me catch that the entire sentence was going to be bolded.
Parker,
As you can see by the quotes below, those who love liberty have long known about men such as Obama.
“Men by their constitutions are naturally divided into two parties:
1. Those who fear and distrust the people, and wish to draw all powers from them into the hands of the higher classes.
2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depository of the public interests.
In every country these two parties exist, and in every one where they are free to think, speak, and write, they will declare themselves.” —Thomas Jefferson to Henry Lee, 1824.
“There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” – Daniel Webster
“Political tags — such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth — are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire.” – Robert A. Heinlein
Fine article. But (you knew that was coming) he is also setting up an Obama Straw Man (TM) that he can run against. He’ll have the court pushing Wheelchair Granny off the cliff and reminding America that another term would allow his humble self to prevent that.
I respectfully submit to the Geoffreys that it is better to prepare for the worst while hoping AND WORKING for the best, or the better. Those who believe Obama will be able to do little in his lame duck term ignore, at our collective peril, his czars, his Cabinet, his Executive Orders, his entire track record. That is not ignoring, it is Denial.
If one fears a 2nd Obama term, how can one be sanguine about the interregnum?
Parker:
RE: the .40 cal matter, I simply said, something’s afoot, and it ain’t good. I’m glad you will be loaded and locked, but that doesn’t help me figure out the DHS motive for spending our money on a massive amount of rounds for purely domestic use. We need to connect dots!
Parker:
I wouldn’t advertise my abilities to reload/manufacture ammo. The Gubmint has ways of finding out certain things.
neo,
Your case for Wickard v. Filburn as opposed to Marbury v. Madison is compelling — intellectually/legally compelling.
But I fail to see that Obama is treating this as an intellectual/legal exercise. My perception is that he is treating it as a propaganda exercise. Whatever the hoi polloi will swallow, he will put out there, with no regard at all to the intellectual or legal coherence of his pronouncements.
You’re playing chess; he’s playing a totally different game, with vastly different rules and vastly different ethics.
“”You’re playing chess; he’s playing a totally different game, with vastly different rules and vastly different ethics.””
M J R
Yes. The game is called heads i win and tails you lose.
Susanamantha’s caution is not paranoia. It is, however, symptomatic of fears based on proper reality-testing.
M J R: what makes you think I don’t agree with you? They are hardly mutually exclusive.
I believe Obama’s goals are mostly propagandistic and, as I pointed out in the piece, he is trying to intimidate the Court by chiding it to remember how much it will be overturning if it says—post-Wickard v. Filburn—that the individual mandate is an overreach of the commerce clause.
My point was that those who say he doesn’t know precedent—doesn’t know what he’s talking about—don’t realize he is talking about the precedent set in Wickard v. Filburn here rather than Marbury v. Madison.
“it is better to prepare for the worst while hoping AND WORKING for the best, or the better.”Don Carlos
I completely agree.
With the individual mandate before us, it is worth considering what Wickard v. Filburn turned on.
From Wiki:
“In July 1940, pursuant to the Agricultural Adjustment Act (AAA) of 1938, Filburn’s 1941 allotment was established at 11.1 acres (4.5 ha) and a normal yield of 20.1 bushels of wheat per acre. Filburn was given notice of the allotment in July 1940 before the Fall planting of his 1941 crop of wheat, and again in July 1941, before it was harvested. Despite these notices, Filburn planted 23 acres (9.3 ha) and harvested 239 bushels from his 11.9 acres (4.8 ha) of excess area.”
The case was about 239 bushels of excess wheat, at a time when the Feds prescribed payment of $1.16 per bushel versus the free market global price of 40 cents per.
If one doubts the alleged benificence of the coming heavier hand of the Feds, already profoundly heavy, consider the trivial scope of Filburn’s farming and the Gubmint’s tsunami response.
Fear and loathing.
THANK YOU for posting this! I love visiting — keep up the great work!!
Steve
Common Cents
http://www.commoncts.blogspot.com
Following up on Don Carlos’ observation of the heavy hand of the Feds on trivial matters, check out the New York Jewish butchers whose small poultry business ran afoul (pun?) of FDR’s National Recovery Administration. That case also went to the Supreme Court ( Schlecter v. the U.S.). That conflict is detailed in Amity Shlaes’ The Forgotten Man, her history of the Great Depression. The out come made it clear that the ends do not justify the means when the means are in violation of the Constitution. To quote the decision: “Extraordinary conditions do not create or enlarge constitutional authority.”
The Schecter Poultry Corp v. US judgement occurred in 1935. Wickard v. Filburn was some seven-eight years later, after FDR had with apparent success intimidated SCOTUS, and achieved ends over means.
This lesson has not been lost on BHO. Given his public intimidation of the Supremes, try to imagine what’s going on behind the curtain.
Comment on Wiki re Schecter:
“This traditional reading of the Commerce Clause was later disavowed by the Court, which after threats from Roosevelt began to read congressional power more expansively in this area”
neo-neocon wrote [in part], at 3:17 pm:
“M J R: what makes you think I don’t agree with you? They are hardly mutually exclusive.”
—
M J R now responds as follows:
Oh, it’s not that I’m disagreeing with you at all, but (as I remarked earlier) “you’re playing chess; he’s playing a totally different game . . . .”
I’m with you on Wickard v. Filburn when I wrote, “your case for Wickard v. Filburn as opposed to Marbury v. Madison is compelling . . . .”
I think what that it is coming down to is, I don’t think Obama was particularly addressing the court when he said what he said. He may have had Wickard in mind, but I fail to see that it’s terribly germaine. I think he was/is trying to snow-job the electorate. As you wrote, “I believe Obama’s goals are mostly propagandistic . . . .” Heartily agreed!
I think it’s a matter of playing a totally different game. You’re doing your homework, citing court cases of old, and discerning the court case to which Obama’s ^really^ referring. Chess.
He’s talking without reference to court cases, spewing whatever will sound good to an electorate that, like me, isn’t up on court cases and isn’t doing that sort of homework. Dodge ball.
neo, I should take this opportunity to thank you for -1- the homework you’ve done and have shared with us, and for -2- this marvelous blog. You devote a prodigious amount of time to the blog, and I certainly appreciate it.
A. The court is not going to overturn Wickard, so everyone should temper their enthusiasm. Heck, the Roberts court, and the one immediately preceeding it has had several opportunities to reign in the commerce clause power, and for the most part they’ve totally refused to do so.
What you all seem to misunderstand is that the current court is NOT libertarian (arguably Thomas is that way, none of the others are) but merely consists of two blocks that are authoritarian from the right or left.
B. That being said they might actually put a damper on Wickard because this case does not arguably comport with five of the Justice’s policy preferences. However, whatever constraint they come up with it will almost ultimately hold up most of the government’s legislation since the New Deal.
You don’t have to take my word for this. I urge people to look at just about every single large case brought by libertarians or constitutional purists over the past 30 to 50 years.
Brad sez:
“The court is not going to overturn Wickard, so everyone should temper their enthusiasm.”
I’ve just reviewed all the comments, and NO one, Brad, has expressed any expectation whatsoever that Wickard v. Filburn will be overturned. NO one has expressed any ‘enthusiasm’ about our present state of affairs or the prospects for the future.
The Pope on this Easter warned that mankind is losing the ability to distinguish evil from good. There is no enthusiasm for mankind’s earthly prospects in his message either.
“I wouldn’t advertise my abilities to reload/manufacture ammo. The Gubmint has ways of finding out certain things.”
Susanamantha,
I’m a life long NRA member since age 20, I’ve been on their list for many moons. Tuck fhem. There are at least 5 million people like me who reload their own ammo. Better send 10 kevlar ninjas to each of our homes if they want 90% to survive, which means 50 million federal agents of which 5 million are in body bags. Big drain on the payroll to achieve that. Tuck fhem.
I bought my first .22 rifle at age 10 with my own chore money. Clipped an ad from a Field & Stream; if memory serves me well it was $19.98 including S&H delivered by USPS to our farm. I am free.
After all is said and done, all they can do is kill me. Big deal. I’ve lived a very good life. My children & grandchildren know where to go when TSHTF. Its been prepared and waiting to be occupied for nearly 20 years. Tuck fhem.
http://www.youtube.com/watch?v=W0iRHoQc8K4
My dad was growing tomatos during the Depression, and the government ordered him to plow over part of the tomato field since he had grown more then allowed.
He told the neighbors that he had to plow them under, couldn’t keep them, sell them, or give them away. But he also said that if someone came over and took them, there was nothing he could do about it 😉
Sure enough, the neighbors showed up and took the tomatos.