Words Have Meaning. Until they don’t.

So, on Monday, the Supreme Court will begin hearing oral arguments about Obamacare and its constitutionality. Krauthammer, as always, has interesting things to say about it, but I want to touch on just one bit.

Beginning Monday, the Supreme Court will hear challenges to the law. The American people, by an astonishing two-thirds majority, want the law and/or the individual mandate tossed out by the court. In practice, however, questions this momentous are generally decided 5 to 4 — i.e., they depend on whatever side of the bed Justice Anthony Kennedy gets out of that morning.

Ultimately, the question will hinge on whether the Commerce Clause has any limits. If the federal government can compel a private citizen, under threat of a federally imposed penalty, to engage in a private contract with a private entity (to buy health insurance), is there anything the federal government cannot compel the citizen to do?

Here’s the thing. We have all heard the term “the social contract.” But in America, THE social contract is the Constitution of the United States.  If a strong majority of the people read the Constitution (correctly, IMHO) to read that nothing in that document allows the government to coerce a citizen to buy a product he or she may not wish, THAT is the only true measure by which the validity of a law can stand. Whatever the Supreme Court may rule, the laws of the United States derive their legitimacy from the Constitution, and the Constitution only derives its legitimacy from the citizens. To turn around and tell the citizenry that their (collective) interpretation is irrelevant, is to risk the citizenry telling the government that it is not only irrelevant, but illegitimate.

A great deal of the success of the United States has been in no small part due to the stability of our political institutions.  That stability has not been because of the military power, or social justice initiatives of the government, but because, by and large, the people have felt that the government was in fact representative of them, and thus legitimate. It would be folly for the Supreme Court to give the people further evidence that it just isn’t so.

I’ll encourage my readers who aren’t familiar with him to visit Jeff Goldstein at Protein Wisdom. For a long time, a central theme of his blog has been the intentionalism of language, and how often words have been so twisted by those with an agenda opposite of an author as to cause those words to lose all meaning.

9 thoughts on “Words Have Meaning. Until they don’t.”

  1. I disagree strongly with the idea that the .gov can force me to purchase a product or service that I do not want or feel that I need, but … I also disagree strongly with your interpretation of the Constitution.

    You’ve stated that “the Constitution only derives its legitimacy from the citizens. To turn around and tell the citizenry that their (collective) interpretation is irrelevant is to risk the citizenry telling the government that it is not only irrelevant, but illegitimate.”

    Let’s view this from the perspective of, say, the First Amendment. I’d be willing to be that you could find at least a two-thirds majority of Americans that would tell you that the conduct of – just as a for-instance – the Westboro Baptist Church or the KKK or the Aryan Nations should not be protected by the Constitution. (Personally, I find all three to be hideous and repugnant – I’m not defending their views or beliefs.) But, where do you draw the line? What percentage of the American public must think you deserve to have your rights stripped before the .gov becomes “illegitimate” if it doesn’t act accordingly?

    The path you advocate leads to mob rule. I’m sure you’ve heard the old saying about two wolves and a sheep voting on what’s for dinner?

    1. And I disagree with your assertion in re: Westboro and the KKK. And the evidence is, the majority of the public, while not happy with either group, was satisfied with the legitimacy of court rulings regarding their 1st Amendment rights. That’s the population ruling on the legitimacy of the law, not the groups seeking protection under it.

      In the case of Obamacare, the polls are now, and have consistently, shown that majorities of Americans don’t believe the law to be legitimate. If a majority of the citizenry feel that the law, the framework under which we operate our society, is not legitimate, THAT’s when they begin to disregard the law, and THAT is when the path to mob rule begins.

      Or would you care to argue that the law is whatever the Supreme Court (or more realistically, what Justice Kennedy) says it is, and the will of the people, as expressed through their elected representatives, is of no consequence?
      The Constitution will only remain in effect so long as 51% of the people believe it to be the law. When 51% believe the law of the land is whatever some elite, be in Congress, the President, or the Courts, or some other elite such as academia, imposes upon the people, you’ll see a rebellion of one sort or another. I’d prefer to avoid that.

    2. Here’s the thing – the Supreme Court has the power – and the responsibility – to tell whether or not passing Obamacare has exceeded the powers granted to the Legislative branch by the Constitution, and that’s ALL. Whether the law is popular or unpopular should have absolutely ZERO bearing on their deliberation. If Congress has not exceeded their authority in enacting the law, then it should stand. Period-f*cking-dot.

      If the “will of the people” is so strongly against Obamacare (or any other law that has not otherwise been declared unconstitutional be the Supreme Court) then the problem is with the people’s elected representation, and NOT the Supreme Court or the Constitution. If the people continue to act like retards and vote into office those who have routinely flouted their will, well … then there’s a problem.

      Perhaps the choice of Westboro and the KKK was a poor one. Let’s talk about handguns, then: 40-50 years ago, nearly 2/3’s of America believed that the Second Amendment didn’t give you the right to own a handgun. Do you think that right should have vanished back then?

      If the Supreme Court starts handing down decisions based on poll numbers, then it’s time to start drawing up articles of seccession again.

  2. Rusty, I’ve not seen anything in my lifetime, abortion included, that riled the electorate in the manner that Obamacare has done. Most point tot eh constitution as not empowering Congress to do anything like what they legislated. I happen to agree with that assessment.

    If SCOTUS upholds Obamacare, they will be viewed, correctly, I might add, as lawless. The constitution was not written for the courts, Congress or POTUS, it was written for the people. If the people see that the courts no longer give a fig about the Constitution (an opinion that seems to be strengthening among the people), the the entire FedGov will come to be regarded as illegitimate and things will start falling apart rapidly.

    You may disagree with my and Brad’s assessment, but your opinion will end up being consumed in the fire of a lawless revolution that might make teh french Revolution seem more like a Bridge game.

    1. I happen to agree with your assessment of Obamacare as being an over-reach by a power hungry Congress, spurred on by a power hungry Executive branch.

      BUT if it comes down to something still being constitutional but the people not wanting it … then doesn’t that mean that it’s the Legislature that needs to get corrected, rather than that the Supreme Court should make a decision based on popularity? There’s a reason that they’re appointed for life …

    2. Rusty, I must have been unclear. My argument is not about the popularity of the legislation. Indeed, the proper remedy would then be through Congress. The unpopularity of the legislation is due to the majority of the population believing it is clearly beyond the intended scope of powers of the government.

      My reference is that if the majority of the population hold a meaning of the Constitution, that is, a restraint upon the powers of the government, and yet the Court, through no ill will, finds otherwise, then the Court, and very quickly, the entire government will lose legitimacy.

      If the rest of the nation reads “C-A-T” to be a symbol for a small feline creature, and yet Congress suddenly decides it spells dog, and the Court goes along… who’s in the wrong?

    3. Brad, who would be wrong depends on whether or not the notional cat / dog had ever been part of interstate commerce. 🙂 But seriously: legislative bodies frequently create odd and unusual legal definitions for words that don’t necessarily match up with common usage. For instance, have you ever looked up how CA has legally defined the word “sniper scope?”

      Believe me, as far as Obamacare goes, we’re on the same side of that issue. It’s an abomination, and a severe over-reach by Congress. It’s an unprecedented power grab.

      I don’t care what the shitty legislation is: so long as it’s within the legally prescribed boundaries of Congress to pass it, then it’s not the Supreme Court’s job to throw it out because people THINK it’s unconstitutional. It’s their job to throw it out ONLY if it REALLY IS unconstitutional. If it’s not unconstitutional – and like I said, that’s not a popularity contest – then the problem is with the legislators and the retards that elected them, and NOT the Court, which will have exactly ZERO legal grounds to do anything, and if they exceed that mandate … then we have a far greater problem.

      Public perception is everything when it comes to advertising. Public perception means jack shit when it comes to the law. 98% of America still thinks that OJ did it. Should the jury have convicted just because of that? (Well, okay, maybe that’s a bad example!) I’d venture to guess that 90% of the putative 2/3’s of America that want Obamacare to go away can’t even coherently state the legal reasoning behind such a position. (Of course, 90% of the people that *want* Obamacare can’t coherently state the reasoning behind that position either. Nor can Congress, since they didn’t fucking read it.)

      If people want Obamacare gone, and the Supreme Court doesn’t do it for them … guess what? They voted for the people that gave it to them.

      Who was it that said that people get the government that they deserve, not the government they want?

    4. One further bit: if the majority of people believe that something is (or should be) unconstitutional and the Supreme Court says that it’s not, then there’s a remedy: amend the Constitution.

  3. Rusty, in this case it would be to take a certain number of justices out to the lamp post. Sadly, we are close to that eventuality.

    When the SCOTUS refuses to read the constitution, then we have a very serious problem. SCOTUS has been the last line of defense against over reach, and they haven’t done a very good job of it, to be very charitable. If SCOTUS wishes to be obtuse about this issue, then we have crossed the final line. Things will get very interesting, and not in a good way.

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