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GOP Justices Ignore the Founders

By       Message Robert Parry     Permalink
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Of course, you might think that the Supreme Court justices, especially conservatives who call themselves "strict contructionists" and who honor the "originalist" intent of the Founders, would rise above petty politics. But -- if you think that -- you haven't been paying attention to the right-wing hacks who currently sit in the majority on the Supreme Court.

Instead of a serious discussion of these legal issues, Republican justices on Tuesday sounded like pundits on Fox News, peppering U.S. Solicitor General Donald B. Verrilli Jr. with ludicrous what-if questions, like could the government require Americans to buy broccoli, cell phones, automobiles, gym memberships and burial insurance.

Strictly speaking, the constitutional answer would be yes -- if those activities were deemed part of interstate commerce and if Congress and the President had the political will to do so. The practical answer, of course, would be no, since those ideas are nutty.

Dreaming up crazy hypothetical possibilities has become something of a cottage industry on right-wing talk shows, but it was still shocking to hear these silly talking points coming out of the mouths of Supreme Court justices.

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Perhaps the most hypocritical of the justices was Antonin Scalia, who is widely praised by the U.S. news media as a brilliant legal thinker but is really anything but. Scalia is a master of applying double standards to the Constitution depending on what outcome he wishes to achieve.

For instance, Scalia, as a self-proclaimed "originalist," has argued that the 14th Amendment and its principle of "equal protection" under the law should not apply to equal rights for women and gays because the drafters in 1868 were thinking about the legal rights to black men after slavery.

However, Scalia had no problem using the 14th Amendment in December 2000 in Bush v. Gore to shut down the Florida recount and award Republican George W. Bush the presidency -- though surely Congress in 1868 wasn't thinking about protecting the political ambitions of white plutocrats. [See Consortiumnews.com's "Are the GOP Justices Political Hacks?"]

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Similarly, Scalia seems intent on taking a situational approach to the Commerce Clause. In 2005, Scalia embraced a broad interpretation of that constitutional authority in upholding a federal law prohibiting the growing of medical marijuana for personal use. Yet now, he's parroting right-wing talking points about forced broccoli-eating to justify striking down a law he doesn't like.

Whose Burden?

Even more shocking in a way was a question posed by Justice Anthony Kennedy, who is often considered the most reasonable Republican on the High Court, though he too has a troubling history of perverting the Constitution for partisan ends. He was the author of the Bush v. Gore decision that misused the 14th Amendment to put a popular-vote loser in the White House.

Kennedy told Solicitor General Verrilli that the government faced "a heavy burden of justification" for the individual mandate on Americans to buy insurance, the provision at the heart of the Affordable Care Act. Like his Republican cohorts, Kennedy insisted that Verrilli offer "some limits on the Commerce Clause."

However, in his comments, Kennedy turned the actual "burden" on its head. It was the Framers of the Constitution who decided that the Commerce Clause should be open-ended, in part because they knew that the future challenges to the United States could not be fully anticipated. They left these future choices up to the democratic process and congressional debates.

It is not up to the Obama administration to revise the Constitution by saying what Americans may deem necessary in the future to compete economically or "to promote the general Welfare." Who knows what emergencies might lie ahead requiring extraordinary actions?

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The Framers were wise enough to create this flexibility for their "posterity," although today's Republican justices appear to fear that the democratic process might lead, down the road, to all sorts of silliness.

Kennedy was also misguided in claiming that the administration had a "heavy burden" in justifying the mandate. The "heavy burden" should actually be on the Supreme Court not to overturn an act of Congress that has been signed by the President -- unless the Court has a clear constitutional rationale. Yet, in this case, a "strict construction" of the Constitution actually sides with the law.

In upholding the Affordable Care Act at the appellate level, Judge Silberman made precisely that point. He noted that opponents of the law lacked support for their case in the text of the Constitution and in Supreme Court precedents before adding: "We are obliged -- and this might well be our most important consideration -- to presume that acts of Congress are constitutional" absent "a clear showing to the contrary."

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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 secrecyandprivilege.com. It's also available at

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