Where Do We Go From Here?

Inigo:  I am waiting for you, Vizzini.  You told me to go back to the beginning, so I have.  This is where I am, and this is where I will stay.  I will not be moved.
Brute: Ho there!
Inigo:  I do not budge.  Keep your “Ho there!”
Brute: The Prince gave orders.
Inigo:  So did Vizzini.  When the job went wrong you went back to the beginning.  Well, this is where we got the job, so it’s the beginning.  And I am staying ‘till Vizzini comes.        
            —Mandy Patinkin as Inigo Montoya, and Paul Badger as the Brute in The Princess Bride
One of the great lessons of golf is that you must learn to play the ball where it lies, however bad a position that may be, and however unfair the circumstances under which it came to be there.  Denial and panic are counter-productive.  Sometimes you have to accept bogey, chip back into the fairway, and try to make it up on the next hole.
Obamacare has passed Congress and been upheld by the Supreme Court.  Rightly or wrongly, that’s where the ball now lies.  The question we must focus on now is:  What do we do about it?
A number of possibilities come to mind.
Two are already more or less in progress.  The obvious option of repeal by the Congress is front burner, but until 2013—and then only if the GOP gains at a minimum a decisive majority in the Senate, which is unlikely—it is nothing more than moot political theater, because at present a repeal bill can’t see the light of day in Harry Reid’s Senate, and would inevitably be vetoed by the White House.  Slightly less obvious is simple defiance at the State level, where GOP governors in several States are telling the federal government “no,” and simply refusing to implement the law.  John Roberts has made his ruling; now let him enforce it.  This won’t stop Obamacare, as the feds will take over, but it will slow it down.  Neither option has much promise of actually correcting the problem any time soon.
You could try to pack the Court if Romney wins the White House.  Nothing in the Constitution fixes the size of the Court at nine justices.  Congress—presumably and historically, but the Constitution is actually silent on this point—has the power to change the number of Supreme Court justices.  But this would still leave Obamacare on the books.
I’ve heard some talk about a process called “nullification.”  The idea is that because the Constitution is a compact between the States as sovereign entities—and thus the federal government is a creation of the States, they retain an inherent power to un-do acts of the federal government.  While I generally agree in theory with the concept, the problem is it isn’t expressly found in the Constitution, and there is a wealth of Supreme Court precedent (incorrectly, in my judgment) rejecting its underlying premise.  Given what we’ve now seen from the Roberts Court in its current composition, I have no confidence you would ultimately get anywhere with an attempt at nullification.  Further, you can be sure that the Obama administration would ignore nullification by executive order anyway.
The more basic problem with any of these options is they don’t address the real disease, which is that our Constitution itself has become perverted in its application beyond recognition.  Several years ago my orthopedic surgeon told me, when we had run out of lesser treatment options for my knee, that “mechanical problems require mechanical solutions.”  While it shouldn’t have been necessary, all three branches of the Beast have so broken the original language of the Constitution that it’s going to require fixes to that language itself to heal the damage. 
To that end, let me offer some suggestions.  We can call it the “Bill of Clarification.”
Article XXVIII (eliminating the “general welfare clause,” which was a statement of purpose and never intended to confer power)
The Preamble to the Constitution of the United States is amended to read as follows:  “We the People of the United States do ordain and establish this Constitution for the United States of America.”  All other language in the Preamble is deleted.
Article XXIX (clarifying that when we said enumerated powers, we meant it)
Section1.  The Constitution of the United States is to be interpreted and applied according to the plain meaning of the language actually written. 
Section2.  Congress has no powers, rights, or authority beyond those expressly granted in the Constitution of the United States, and any powers, rights, and authority not expressly granted to the Congress therein are expressly denied to Congress.    
Section3.  The President has no powers, rights, or authority beyond those expressly granted in the Constitution of the United States, and any powers, rights, and authority not expressly granted to the President therein are expressly denied to the President. 
Article XXX (limiting what Congress can do)
Section1.  Every Bill passed by the Congress must include a citation to the provision or provisions of this Constitution of the United States conferring upon the Congress the authority to enact it.  This citation must be specific and limited to the actual authorizing provision or provisions; a blanket quotation of this Constitution as a whole or of an Article substantially in its entirety is not sufficient, and will render the Bill void.  No Court, Federal or State, may uphold the constitutionality of any Bill on any basis other than that articulated by the Congress in the Bill.
Section2.  Congress may not appropriate or authorize the spending of money for any calendar year in excess of actual revenues for the same period, nor levy taxes totaling in the aggregate in any calendar year more than 25% of Gross Domestic Product for that year.  Not more than once every fourteen years Congress may, by a vote two-thirds of each House, suspend the application of this Section 2 for a period not to exceed four years.
Section3.  The power of the Congress to regulate commerce among the several States is limited to preventing individual State commercial policies creating distinctions, preferences, or exclusions affecting the flow of goods or services between the States; this power does not extend to private transactions within a single State, nor may the Congress compel any person to engage in any commercial transaction.  The power of the Congress to lay and collect Taxes is limited to excise taxes on transactions, direct capitations apportioned among the States in proportion to the Census, and taxes on incomes; Congress is not authorized to lay or collect any other Tax.
Section4.  Congress may not pass any Bill containing provisions not reasonably related to the purpose of the Bill, nor any Bill to any part of which the members of Congress are exempt by virtue of their office.
Section5.  The veto power of the President may extend to all or any part of a Bill.
Article XXXI (term limits, and restoring the Senate to the States)
Section1.  No person may be elected to the House of Representatives more than four times, and no person who has held the office of Representative for more than six months of a term to which another person was elected Representative may be elected to the House of Representatives more than three times.  No person may be elected to the Senate more than twice, and no person who has held the office of Senator for more than three years of a term to which some other person was elected Senator may be elected to the Senate more than once. 
Section2.  The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
Section3.   The Supreme Court of the United States consists of nine Justices, divided into three classes of three.  The term of the first Class, comprised of the three Justices with the longest term of service on the Court at the time this Article is adopted, expires at the end of the third year after the adoption of this Article.  The term of the second Class, comprised of the three Justices with the second-longest term of service, expires at the end of the sixth year after the adoption of this Article.  The term of the third Class, comprised of the three Justices with the shortest term of service, expires at the end of the ninth year after the adoption of this Article.  No person may serve as a Justice on the Supreme Court for more than nine years, except that a person appointed to replace a Justice prior to the expiration of a term may serve out the existing term and then be re-appointed and confirmed as provided in Article III of this Constitution of the United States for a term not to exceed nine years.
Section4.  No person may serve as a Judge on any inferior Courts established by Congress for more than a combined twelve years.
Article V provides two mechanisms to make this happen.  One is by two-thirds vote of both Houses of Congress.  I have no illusions that that’s going to happen in our lifetime.  The other is by convention called by the legislatures of two thirds of the states.  This Constitutional Convention route is the only means by which we can realistically hope to mend the damage done to the text of our Constitution.  Even then we’re only as healed as the Beast’s willingness to stay within the letter as written.  If Amendment fails to constrain the Beast, there aren’t but a couple of alternatives left.
Food for thought.
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If You Want It, Here It Is, Come And Get It

Big Johnson:  I’m Special Agent Johnson of the FBI.  This is Agent Johnson.  No relation.
Robinson:       Dwayne Robinson, LAPD.  I’m in charge here.
Big Johnson:  Not any more.
            —Robert Davi as Big Johnson and Paul Gleason as Deputy Police Chief Dwayne T. Robinson in Die Hard
I have to say I was a little taken aback by Monday’s Supreme Court ruling on the Arizona immigration law.  Despite my prior cautions against reading too much into justices’ questions and comments during oral argument, I really thought the administration was going to lose this one, and lose it badly.
Boy, was I wrong.
By now you are undoubtedly aware that on Monday the Supreme Court struck most of the Arizona statute as unconstitutional on the basis that it “undermine[s] federal law” in an area where the federal government has exclusive domain.  “Undermines”?  How do you figure?
The Court struck three aspects of the Arizona statute.  One made it a crime for immigrants to seek employment without work permits.  This did not create a new state registration requirement.  The permits to which the law referred are federal work permits already required under existing federal law, and the hiring of someone without that permit is already illegal under existing federal law. 
Another made it a crime for immigrants not to carry their immigration papers on their person.  Again, this didn’t create a new state registration requirement; no one had to file an application in Phoenix to get an Arizona green card.  This part of the Arizona law was referring to the federal immigration paper work again already required under existing federal law.
The third stricken part of the Arizona immigration law allowed the police to arrest anyone suspected of committing a deportable offense.  Once again, Arizona wasn’t creating any standards for deportation, or otherwise establishing substantive immigration policy.  All it was doing was authorizing state and local police to enforce existing federal immigration law as established by Congress.  That is no different than local police making an arrest for interstate heroin trafficking, or for purchasing or selling an unregistered Class III firearm (i.e., a machine gun).
In all three aspects of the statute, all Arizona was trying to do was provide supplemental enforcement mechanisms in support of existing federal immigration policy as set forth in existing federal law enacted by Congress.  The Arizona statute did nothing to impair federal authority over immigration, and was in no way inconsistent with it.  Yet a majority of the Court held that where the federal government is supreme, even complementary State action is forbidden. 
The administration, in challenging Arizona’s law, has been long and loud in its cry that this was its exclusive domain, and that States needed to butt out.  And as if to put a final cymbal crash on it, the Department of Homeland Security within hours of the Court’s ruling suspended all cooperative arrangements with the State of Arizona.
Yes, Goose, I know the finger.
Disappointed as I am in the ruling—and as nervous as it makes me about what I had been convincing myself was going to be a Thursday ruling striking Obamacare, and I fear the prospect that Chief Justice Roberts might turn out to be another David Souter (surely the Bushes couldn’t have repeated their mistake, could they?)—there may be a silver lining here.  This ruling is more likely to motivate flagging Tea Party types to stay in the game and get to the polls than it is to drive happy Latinos to vote.  But I think there’s a step further that can be taken here.
Some of you are going to tell me I need to be careful what I wish for, and you may be right.  But it seems to me that two can play this game that the federal Beast is imposing on us.  If the federal government wants the States to butt out of its policies and programs, even with complementary support or enforcement, fine.  Here are some suggestions: 
I’d like to see Arizona Governor Jan Brewer—God bless her—continue to stick to her guns.  If her problem is the federal government isn’t enforcing its own laws in an area in which it claims exclusive jurisdiction, make it put its money where its mouth is.  She should get together with Texas Governor Rick Perry (no chance Governor Moonbat in California will go along, and I have no idea what you’d hear from New Mexico Governor Susana Martinez) and sue the United States, Barack Obama, Eric Holder, and Janet Napolitano in federal court in Texas (we go to the 5th Circuit, not the 9th as you would out of Arizona) seeking a writ of mandamus and an affirmative injunction orderingthem to enforce the Immigration and Nationality Act of 1965 as it was written by Congress. 
Get as many states as will join to terminate (if possible) all leases for all federal agencies renting space on State property, and ban all federal law enforcement personnel from entering any State park or building.  What’s yours is yours, and what’s mine is mine.
End all State maintenance activities on Interstate highways.  Refer all complaints to Transportation Secretary Ray LaHood, and explain that those are federal projects and are the responsibility of the federal government, as the federal government itself has made clear.  I’m sorry, I’d like to help, but we’ve been told by the White House and the United States Supreme Court to butt out of federal affairs.
Order all state and local law enforcement agencies to cease any efforts to investigate or arrest people in cases of tax evasion or any other enforcement of federal law.  Telephone or other communications from the FBI, Treasury Department, BATF, or any other federal law enforcement agency are not to be responded to beyond do it yourself.
Finally, end all State participation in Medicaid and any other unfunded federal mandates such as the Clean Air Act, Americans With Disabilities Act, etc.  Refer complaints to HHS, EPA, EEOC, or whatever the appropriate federal agency is.
The States are not mere subordinate subdivisions of the federal government to be employed or dismissed at the snap of the Beast’s finger.  They need to reassert their sovereignty, and the ongoing federal war against Arizona provides a perfect backdrop against which to do it.  The Beast picked this fight, not the States.  Time for the States to push back and tell the Beast “You want exclusive jurisdiction, you got it.  Take care of those things your own damn self.”
What’s the Beast gonna do about it?

Marbury Revisited

 
Dearly beloved,
We are gathered here today
To get through this thing called life.
Electric word, “life,” it means forever
And that’s a mighty long time.
—Prince and the Revolution, Let’s Go Crazy
A buddy of mine has at times accused me of pining away for the day Marbury v. Madison gets overruled.  I supposed in a sense he wasn’t far off. 
Then I started to think about it.
I know a number of my readers have Juris Doctorates, but I’ll bet few of you have given much thought to Marbury since law school.  It tends to be one of those things that’s taught academically, but in practice it’s sort of just accepted without discussion as part of the fundamental framework within which we have to function.  Kind of like air—we all know it’s there and it’s important, but we don’t consciously worry much about it unless/until something goes wrong with it. 
Perhaps it’s worth reviewing the history a bit, particularly for those who may have little more than a vague idea of Marbury and its significance.
During his lame-duck period, John Adams and the Federalists sought to pack the federal courts with a large number of newly-appointed Federalist judges and justices of the peace (even then, Liberal Statists sought to exercise power through the courts rather than legitimate electoral and legislative processes).  Outgoing-President Adams made dozens of appointments on his last day in office, all of which were immediately confirmed by the outgoing Federalist Senate.  Upon taking office the next day, new President Thomas Jefferson directed his administration not to deliver the signed commissions to the appointees, thus preventing them from assuming their positions.  Among those denied his commission was William Marbury, who sued directly in the Supreme Court for a writ of mandamus—a judicial order compelling a public official to discharge his duty—ordering Secretary of State James Madison to deliver it.
Chief Justice John Marshall, writing for a unanimous (at the time, 4-0) Court, held that the Supreme Court lacked authority to grant the relief Marbury sought.  The Judiciary Act of 1789 purported to grant the Supreme Court the power to hear suits for writs of mandamus as part of its “original jurisdiction”—that is, cases that could be brought directly in the Supreme Court, as opposed to on appeal from a lower court.  Marshall found that this grant conflicted with Article III of the Constitution, which provides that the Supreme Court’s original jurisdiction extends only to cases involving certain public officials and States as parties, and that “[i]n all the other Cases” the Supreme Court’s jurisdiction was appellate.  Thus, Marshall’s opinion on its face appears to be limiting the reach of the judicial branch, ceding an area as beyond the Court’s constitutional purview.
But notice the intellectual judo here.  In surrendering a limited bit of power in this isolated instance—the ability to grant mandamus relief—Marshall in fact embraced a much broader one.  His holding that the Judiciary Act’s grant of mandamus jurisdiction was unconstitutional secured for the Supreme Court (and, by extension, lower federal judges) the ability unilaterally to void acts of Congress (and the States under the Supremacy Clause) by claiming sole dominion over what is and is not allowable under the Constitution:
It is emphatically the province and duty of the Judicial Department to say what the law is.”
While this concept of “judicial review” was not new, Marshall’s opinion in Marbury cemented it forever into American jurisprudence. 
The doctrine has a certain practical necessity to it.  After all, someone has to determine what the Constitution says, and to enforce its limits.  And this power of judicial review serves as an important check against the other two branches of government (although one might argue the Court gave it back over time with its Commerce Clause jurisprudence, culminating with Wickard v. Filburn and its progeny).  Indeed, it is really the only backstop the minority has to defend against the capricious tyranny of the majority.
That was all well and good as long as the Court confined itself to applying the actual plain language of the Constitution as it is written.  But later Courts began “interpreting” that language, often bending the actual text (or even “implying” (read: inventing) text) not to enforce the law, but to promote a progressive agenda.  The Constitution ceased to be defined by the 6,000 or so words of the document itself (including Amendments), and instead by a maze of thousands of pages of case law. 
(As an aside, just stop with this nonsense about the genius of the Constitution being its character as a “living and breathing document.”  It either means what it says or it doesn’t.  If its meaning can change with the whim of the time (or at least of a majority of the then-sitting Court), then it is in effect without any meaning at all.  In a country founded upon the rule of law, where people govern their affairs based on the understanding that the same words that meant “XYZ” yesterday can be counted on to mean “XYZ” tomorrow, the supreme law of the land can’t be subject to amendment by vote of five (see Article V)).
While judicial review serves as a valuable check against Congress exceeding its power, there is no corresponding check against the judiciary in its use or abuse of that power. 
Compounding this problem is Article III’s provision for lifetime appointments.  The Founders created lifetime appointments for the judiciary for the sound reason of insulating the Courts from shifting political tides; judges need to be free to apply the law without fear of reprisal.  This worked well in 1789 when average life expectancy was less than 40, and the chance of anyone appointed to the federal bench remaining there very long was low.  You could only do so much damage. 
But today life expectancy is around 80, and it is not uncommon for judicial appointees to remain on the bench 30 years or more.  Justice Anthony Kennedy has 37 years on the federal bench, 24 of it in the Supreme Court.  Justices Ginsberg and Breyer each have 31 years on the federal bench.  District Judge Manuel Real (C.D. Cal.) tops the list of active federal lower court jurists with 46 years of judicial service.  Among federal judges with senior status, I count nearly forty with between 40 and 51 years (yes, some of those are Eisenhower appointees) on the federal bench.  What this means is absent impeachment—and that’s rare—federal judges often stay around a long time, which can spell real trouble if they are inclined to stray from constitutional moorings with no effective check.     
I don’t think the Framers foresaw our modern dilemma.  There needs to be some form of check against rogue judges perverting the Constitution.  I might suggest an Amendment establishing a protocol of periodic re-confirmation by a simple majority in the House.  Maybe something like every 6 years for District Courts, every 8 years for Courts of Appeals, and every 10 years for the Supreme Court, with a lifetime maximum of, say, 25 years at all levels combined.  This regimen would afford some kind of relief valve to limit the damage that can be done by judges who cannot or will not confine themselves to the Constitution.
Although some term limit reform is in order, on reflection, I don’t think I’d overturn Marbury and its important check on Congress.  As we sit here today, judicial review is our only meaningful hope of putting the brakes on Obamacare.  For all their campaign trail bluster, neither Mitt Romney, nor Rick Santorum, nor Newt Gingrich can repeal it if elected, because Presidents don’t have that power.  And it’s unlikely that there will be a sufficient swing in Congress any time soon to repeal it legislatively.  The judicial backstop of Marbury is all we have left to save our Constitution, if it’s not already too late.  
And if the elevator tries to bring you down—go crazy.

The Boundless Commerce Clause

Phil:    Let me ask you guys a question.
Gus:    Shoot.
Phil:    What if there were no tomorrow?
Gus:    No tomorrow?  That would mean there would be no consequences.  There would be no hangovers.  We could do whatever we wanted!
—Bill Murray as Phil Connors, and Rick Ducommun as Gus in Groundhog Day
  
Last Friday, I had the privilege of listening to Senator Mike Lee (R-UT) address a luncheon gathering of the Houston Lawyers’ branch of the Federalist Society (and, let me say, his book The Freedom Agenda is a must-read).  Senator Lee’s theme was that liberty is a right that we as citizens must assert for ourselves; no one else is going to do it for us.  And if we don’t start doing it soon, it’s going to be too late.
What did he mean by that?  Well, I’ll bet you didn’t know that that the federal government has already claimed for itself the power to prevent you from growing your own food on your own private property, and to fine you if you do it.
Rusty, that’s crazy.  You’re off in government-conspiracy la-la land again.
Oh, yeah?  Let me introduce you to Roscoe Filburn (pictured above).  Filburn owned and operated a small family farm in Ohio, where he raised livestock and grew wheat.  It was his practice to sell part of that wheat that he grew on his own private property via the sweat of his own brow, and to use the other part of that wheat to feed his family, feed his animals, and as seed for the next year’s crop.  Sounds like pretty ordinary activity for a farmer, and commendable self-reliance.  Indeed, it’s precisely what Americans have done for themselves literally since the day our forbears got off the boat (longer than that if your forbears, like some of mine, met the boat when it landed).
There was just one problem.
In 1938, the New Deal was in full swing, and as part of that, Congress enacted the Agricultural Adjustment Act, which was intended to raise agricultural prices by artificially restricting supply.  It did this by paying farmers subsidies for not growing certain crops.  It was later amended to go a step further by establishing maximum quotas for the production of wheat, and imposing fines for growers who exceeded those limits.  In other words, the government went beyond simply incentivizing farmers not to grow, and actually criminalized the use of private property to grow more of certain crops than the government allowed.
Let me repeat, especially for those of you who like to talk about the need to do something about hungry babies: in order to prop up grain prices, the United States federal government made it a crime to grow food.
Under the AAA, Filburn’s 1941 allotment for wheat allowed him to sow 11.1 acres at a normal yield of 20.1 bushels per acre.  He nevertheless chose to plant 23 acres, resulting in the production of 239 more bushels of wheat than the government said he was allowed to produce.  Although Filburn’s extra production was intended for his own consumption and never entered commerce at all—much less crossed state lines to become interstate—he was fined, and the extra production was effectively impounded to secure the government’s lien to ensure payment of that fine.  Filburn sued, claiming that the regulation went beyond Congress’ authority under the Commerce Clause.
What resulted was the United States Supreme Court’s 1942 opinion in Wickard v. Filburn, 317 U.S. 111.  Writing for an inexplicably unanimous Court, Justice Robert Jackson upheld the regulation, reasoning that Congress has, under the Commerce Clause, the power to enact legislation regulating even private activity, however small, if the effect of that activity when aggregated together with the other similar activity “affects” interstate commerce.  In Filburn’s instance, his decision to provide for himself by growing his own wheat on his own property meant that he would not be buying the wheat he needed from someone else; if enough people did that, there would be less demand in the open market, and prices would fall.  This potential “effect” on interstate commerce was, in the Wickard Court’s judgment, sufficient to permit Congress to regulate Filburn under the Commerce Clause.
It is this perversion of the Commerce Clause that has gotten us where we are now, and the Framers wouldn’t recognize it.  But consider the actual text of Article I, Section 8 itself.  It’s not long, it’s not complicated, and you don’t need a J.D. from Harvard to be able to understand it:
“The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several states, and with the Indian Tribes[.]”
The Framers never intended this clause to be an all-empowering provision authorizing Congress to do anything it deems a good idea, or to regulate private activity on private property just because if enough people did it it might “affect” interstate commerce. 
What the Framers meant by the “Power To . . . regulate Commerce” was the power to bring about order and uniformity; in other words, to avoid balkanizing—the breaking up of a whole into smaller hostile units—of the fledgling national economy through individual States enacting protectionist tariffs against trade from other States.  Madison and Hamilton addressed this idea repeatedly in the Federalist Papers.  Hamilton wrote in No. 7: 
“Competitions of commerce would be another fruitful source of contention [between the States].  The States less favorably circumstanced would be desirous of escaping from the disadvantages of the local situation, and of sharing in the advantages of their more fortunate neighbors.  Each State, or separate confederacy, would pursue a system of commercial policy peculiar to itself.  This would occasion distinctions, preferences, and exclusions, which would beget discontent.”
See also Federalist Papers Nos. 11, 22, and 42 (Madison), all discussing the same idea.  There is no question that what the Framers were getting at was they didn’t want New York imposing an import duty on goods made in New Jersey.  That’s all the Commerce Clause was intended to do.  And for 150 years, everyone pretty well understood this.
But somewhere along the way we lost the critical understanding that our federal government was intended to be a limited one whose powers were “few and defined.”  This lack of understanding, coupled with officials in all three branches of government pushing a self-perpetuating statist agenda, and the question stopped being asked whether government had the power to do this or that, and it became “who is going to stop us?”  Wickard cast aside any real pretense of limitation on Congress’ authority under the Commerce Clause, and only twice since 1942 has the Supreme Court told Congress it couldn’t do something under the Commerce Clause.  After all, if Congress can tell a farmer in Ohio that he cannot grow his own food on his own property, there is little else it cannot reach.  This is going to come as a tremendous shock to those trying to live “off the grid” when one day some bureaucrat comes to levy a fine on them because they are not purchasing electricity from the government-subsidized wind farm.  But that idea flows directly from Wickard’s grossly overbroad “interpretation” of the Commerce Clause.  There simply aren’t any real limits on federal authority if you follow Wickard to its logical conclusion.
Wickard, of course, also provides the intellectual framework for Obamacare, and therein lay what may be the biggest challenge and biggest opportunity in the upcoming Supreme Court battle.  The government will argue that the Supreme Court’s Commerce Clause jurisprudence under Wickard and its progeny support Congress’ authority to enact Obamacare, and it will have a point.  To overturn Obamacare, the Court may have to overturn Wickard and its progeny, and therein lay the opportunity.  Query, however, whether this Court has the temerity to do it.
Which brings us back to Wickard itself and Senator Lee’s challenge that we must assert these rights ourselves.  Justice Jackson’s opinion made this very point in Wickard that the ultimate check on the broad federal commerce power lay not with the courts, but with the electorate:
“[E]ffective restraints on its exercise must proceed from political rather than from judicial processes.”
We cannot count on the third branch to protect us; they have become complicit in the statist’s game.  We must assert these rights ourselves, which means winning at the ballot box.
Here’s hoping we can continue in November what was begun in 2010.

Reflecting on Roe v. Wade

 
Hello, darkness, my old friend.
I’ve come to talk with you again.
—Simon & Garfunkel, The Sound of Silence
Last Sunday, January 22, was the 39th anniversary of Roe v. Wade.  I see that President Obama commemorated (celebrated?) the anniversary by issuing a statement that the landmark case makes clear that “government should not intrude on private family matters,”—I’m choking to death on the irony of that one—and that he “remain[s] committed to protecting a woman’s right to choose and this fundamental constitutional right.”  His comments reflect a worldview that developed somewhere in the 1960s, as people convinced themselves that this was somehow about women’s rights and privacy, and that restricting unfettered access to abortion is an intolerable intrusion by government into women’s freedom to control their own bodies.
So let me pose a couple of questions. 
Should I be allowed to kill my parents if I find their existence inconvenient, or if they strain my finances?  If your answer is “yes,” then perhaps you should start lining up all the welfare recipients right now, because there are a whole lot of us who find them both inconvenient and a fiscal drag.  My guess, however, is that your answer is—like mine—no.  So I think the welfare folks are safe.
Should I be allowed to kill my 13-year-old because she has a medical condition that makes her life difficult?  Should I be allowed to kill my infant because my wife has abandoned us and I find I’m just not ready to be a single parent?  Once again, the nearly universal answer to these questions is no, and I expect most of you are shocked I would even raise them.
In each of these scenarios, virtually all of us would answer that I have no right to kill the person in question, and in fact you would insist that the government prevent me from doing so, and punish me if I do it anyway.  Why is that so?
Unless you are an anarchist, there can be little doubt that the single most important and most legitimate function of government is to protect its citizens from being killed by other people.  Indeed, if you could only vest a government with a single power, that would be it.  This idea is enshrined in our Declaration of Independence:
“We hold these truths to be self-evident:  that all men . . . are endowed by their Creator with certain inalienable rights, that among these are Life[.]”
For the Founders, it was obvious in and of itself that every human being has a right to live, and they guaranteed that right in the Fifth Amendment’s promise that “[n]o person shall be deprived of life . . . without due process of law.”  This compelling government interest in protecting life led the Fifth Circuit a couple of weeks ago to overturn a lower court decision striking as unconstitutional Texas’ new law requiring sonograms be made available before a woman can obtain an abortion.
 
Well, if the scenarios I posed above are not acceptable, at what point does abortion become OK?
 
As Dr. Seuss taught us in Horton Hears A Who“A person’s a person, no matter how small.” 
It is an inescapable fact that an abortion kills a human being.  So unless you are willing to answer the questions I posed above “yes,” and accept the proposition that it is acceptable to kill as a matter of convenience—and you’re not—it is impossible to draw a logically and morally consistent line that permits abortion, no matter how badly you want to make it so.  This very dilemma is the reason the majority opinion in Roe was so strained, circular, and ultimately indefensible.  We all agree it is not acceptable to kill a baby 5 minutes after she has been delivered and the umbilical cord has been cut, but what about just before the cord is cut?  What about halfway through delivery (this is the damnable and unspeakable practice of so-called “partial birth” abortion)?  There’s no articulable logical or moral distinction between those scenarios.  So, too, if we continue backing up 5 minutes at a time; there’s never a point at which we can say there’s a defensible distinction that makes the difference between an acceptable killing of a human being and murder.  Any line we draw is necessarily artificial, because it depends upon an ever-changing degree of either human medical competency (the “viability” concept of Planned Parenthood v. Casey) or human moral conviction (or lack thereof). 
The Constitutional right to life cannot turn on so capricious a hinge. 
Even if you do not accept that human life begins at conception, as I do, you have to concede (as even Justice Blackmun did) that we as human beings do not have the capacity to say with any certainty when it does begin.  All we can know for certain is that, at some point, it does.  As so many argue against the death penalty—so many, interestingly, who are on the pro-choice side of the abortion debate—why would we take the chance of being wrong, particularly when the victim of abortion is so absolutely and without question blameless?
In our Constitutional system, rights sometimes conflict, and one person’s right must yield to another’s.  We resolve these conflicts by balancing the harm to one and the burden upon the rights of the other.  You have a First Amendment right to speak, but that does not entitle you to jeopardize others’ right to life by yelling “Fire!” in a crowded movie house.  In the case of abortion, the harm, obviously, is depriving (or, for you skeptics, at least the possibility of depriving) another human being of the right to life.  There simply can’t be a greater harm than that, which necessarily means there can be no burden on the woman’s rights that would outweigh that harm.  The one exception would be the deprivation of the woman’s own right to life, in which case the scales are even, and the best you can do is the Catholic Church’s teaching that we may not perform an abortion for the purpose of terminating a pregnancy, but if a medical procedure that is necessary to save the mother’s life has the unfortunate consequence the death of the child, that is acceptable.  Beyond that, however, there is no way to claim a burden on a right of the mother that outweighs the unborn child’s right to life. 
 
We also resolve Constitutional conflicts by seeking out less-intrusive means of enforcing one right without unnecessarily trampling on the other.  With the availability of adoption as an alternative, the burden carrying a pregnancy to term imposes upon a woman is temporary; the harm to the victim of abortion is quite permanent.  It simply isn’t necessary, in order to enforce a woman’s rights to terminate another’s right to life.  Under such circumstances, the balance can’t tilt in favor of an at-best implied “right” to an abortion over the child’s explicit right to life.  
The pro-choice movement has sold people on the idea that abortion is all about a woman’s right to choose, and to control her own body.  This is, put simply, a lie.  Conceding for purposes of this discussion that a woman has this right to choose—the “right to privacy” from which it is purported to derive isn’t found in the text of the Constitution, but instead actually originates from a law review article written by (later, Associate Supreme Court Justice) Louis Brandeis about 100 years ago—that misses the point.  Restricting her access to an abortion in no way diminishes her right to choose or to control her “reproductive health”; she made her choice and exercised her control when she chose to have sex.  The pro-choice movement is not really advocating a woman’s right to choose, but a right to avoid after-the-fact the predictable consequences of the choice she made, and to do so by killing another human being. 
Don’t tell me I’m being unrealistic, that women are going to have sex and get pregnant anyway, and if abortion is illegal they’ll just get dangerous back-alley procedures.  That’s true of a lot of things; but we don’t legalize conduct simply because people will engage in it even if it’s illegal.  People shoot heroin with dirty needles, but there are few outside the Ron Paul campaign who think we should make it legal. 
Nor is this an issue, as Obama’s statement suggested, about ensuring women have the same rights and opportunities as men.  What rights and opportunities do women lack that allowing unfettered abortions cures?  The biological fact is that sex may result in pregnancy, and that pregnancy, if it happens, will be born by the woman; can’t change that with legislation, Constitutional amendment, judicial activism, or executive fiat.  And the sad social fact is too many men participate in the sex, then run from the consequences of pregnancy because they canbut do we really want to encourage our daughters to emulate them in the most lazy, promiscuous, irresponsible, animalistic, and selfish standard of conduct imaginable?  
 
The truth the so-called “feminists” don’t want to admit is that all of both the biological and social  facts of pregnancy are avoidable through abstinencewhich, by the way, is safer than a clinical abortion and 100% reliable, unlike any contraceptive, including The Pilland a woman is always free to make that choice.  And rather than kill the child, perhaps we need to do better at educating our men, and then holding their feet to the fire of responsibility.  But to say that abortion is the answer is to take the utilitarian position that the unborn child is nothing more than a failed science experiment to be discarded and forgotten at will if one deems its implications too imposing or inconvenient.
We’re horrified at cases like Caylee Anthony and Jon Benet Ramsey, and rightfully so.  Something in our very core finds the ultimate revulsion at the deliberate killing of a child, particularly by her own parent.  In most states that allow capital punishment, killing a child qualifies you for Death Row.  It is inexplicable, then, that people would support our government abdicating its most fundamental responsibility and failing to protect the most helpless among us in the place where they should be safer than anywhere else on earth.
The CDC estimates some 50 million abortions have been performed in the U.S. in the 39 years since Roe—about 1.3 million a year, a pace rivaling that of the Holocaust.  Over that time, how many Einsteins have we lost?  How many Mother Teresas?  How many Reverend Kings?  How many honest, hardworking, ordinary Everymans never got a chance?  
How many songs will voices never share?
That is what President Obama commemorated and said he is committed to protecting.