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The Right's Misconstrued Constitution

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Source: Consortium News

U.S. Supreme Court Justice Antonin Scalia.
U.S. Supreme Court Justice Antonin Scalia.
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The five right-wingers on the U.S. Supreme Court may soon recognize the "religious freedom" of corporations so that these artificial constructs can then dictate to female human citizens restrictions on the kinds of contraceptives that they can get through their work-place health insurance plans.

That may sound crazy but some court watchers believe that the Right-Wing Five will follow the logic of their "corporations-are-people" theories to this next nutty conclusion. After all, if corporations have First Amendment rights of "free speech" when they are financing political propaganda to influence the outcome of U.S. elections, there is a consistency -- albeit a bizarre one -- to extending to corporations the First Amendment's "religious freedom."

We'll get a better sense of whether the Five -- Justices John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito -- will make their next leap of logic when the case gets to oral arguments. But whatever the Five do, you can count on them wrapping their reasoning in their claims to be devotees of an "originalist" view of the U.S. Constitution or as "strict constructionists." Already unlimited corporate money in campaigns has drowned out regular human citizens in terms of who (or what) has the bigger say in the outcome of elections, so why shouldn't the religious choices of corporations override the personal and moral judgments of people who work for the corporations?

The reality, though, is that the Five's modus operandi is to reach an ideological conclusion about what they want to do based on their political opinions or partisan needs and then find some legal-sounding language to wrap around the ruling.

See, for instance, their reasoning for gutting the Voting Rights Act, despite the Constitution's Fifteenth Amendment explicitly authorizing Congress to take action it deems necessary to ensure the voting rights of racial minorities. Somehow the Five intuited an overpowering right of the states not to have their discriminatory behavior so constrained, all the better for Republicans and right-wingers to win elections.

An earlier grouping of the Five found similar excuses for shutting down the counting of votes in Florida in December 2000 to install George W. Bush as President even though Al Gore got more votes nationally and would have carried Florida, too, if all ballots legal under Florida law were counted.

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Scalia first issued an injunction to stop the vote-counting because he feared that a tally showing Bush behind might damage Bush's "legitimacy" once Scalia and four other Republican justices got around to throwing out Gore's votes and putting Bush ahead; then Scalia's group devised an upside-down interpretation of the "equal rights" clause of the Fourteenth Amendment to ensure that the votes of blacks and other minorities were more likely to be tossed than those of whites and the well-to-do.

It was clear that these Republican partisans started off with their conclusion -- that Bush should be President and thus have the power to appoint more right-wing justices -- and then cobbled together some mismatched arguments for a ruling so ugly that they declared that it could never be cited as a precedent in future cases. [For details, see Neck Deep.]

Targeting Obamacare

Though in upholding the Affordable Care Act in 2012, Chief Justice Roberts split off from Alito and his three amigos (Thomas, Scalia and Kennedy), Roberts joined in their rejection of the Constitution's Commerce Clause as the principal support for the law.

In doing so, the Five ignored the clear intent of the Framers to give the federal government's elected representatives broad powers to do whatever they judged necessary to "provide for ... the general Welfare of the United States" and -- through the Commerce Clause -- the power to regulate interstate commerce, which clearly applied to the health insurance industry.

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But to make the right-wing case, Scalia again resorted to legal sophistry and rhetorical trickery. For instance, Scalia's dissent against the Supreme Court's narrow endorsement of the Affordable Care Act (based on the government's taxing authority) pretended that Alexander Hamilton, an arch-Federalist who favored a powerful role for the federal government, would have sided with the law's opponents regarding their concern about using the Commerce Clause to mandate that people obtain health insurance.

Scalia wrote: "If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton's words, 'the hideous monster whose devouring jaws ... spare neither sex nor age, nor high nor low, nor sacred nor profane.'" Scalia footnoted Hamilton's Federalist Paper No. 33.

However, in Federalist Paper No. 33, Hamilton was not writing about the Commerce Clause. He was referring to clauses in the Constitution that grant Congress the power to make laws that are "necessary and proper" for executing its powers and that establish federal law as "the supreme law of the land."

Hamilton also wasn't condemning those powers, as Scalia and his friends would have you believe. Hamilton was defending the two clauses by poking fun at the opponents of the Constitution as alarmists who had stirred up opposition to the new governing document by issuing wild-eyed warnings about federal tyranny.

In the cited section of No. 33, Hamilton is saying the two clauses had been unfairly targeted by "virulent invective and petulant declamation."

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at It's also available at

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Is there any limit to the Fed's power to regulate ... by Mark Adams JD/MBA on Saturday, Nov 30, 2013 at 2:14:59 PM
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