Perfect description of the laissez-faire liberal judiciary
In response to a circuit court of appeals’ decision that the individual mandate component of health care reform is unconstitutional (at odds with the results of another circuit), a TPM reader sent in the following on-the-mark response:
“I’m a lawyer. It’s hard to explain just how outside the mainstream this kind result would have been just 5-10 years ago.I graduated a top law school in ’02. If you had written something like this on your 1L Con Law exam you would have gotten an F, because it’s not just a wrong view, it’s a view that ignores 60 years of precedent.
To overturn the health care law is to erase the profound turn that the Supreme Court took in 1937 when it rejected the Lochner Era approach and adopted the modern/New Deal era approach to jurisprudence. The idea that we’re even having this conversation – and the Circuit courts are splitting on this question! – suggests just how far we’ve come in a very, very short time. The movement conservatives have all come out of the closet – even the ones on the federal bench. They smell a final victory: a return to Gilded Age America.”
And remember, this underlying philosophy of this “laissez-faire constitutionalism” is starkly at odds with Catholic social teaching, which sees law not in the Enlightment tradition of protecting individual rights but as “ordinance of reason for the common good, made by him who has care of the community” (Aquinas). In this earlier priod, the Catholic Church in the United States was one of the main opponents on this “due process of liberty” approach that was used to protect the rights of corporations from government interference in their affairs. Think about the Program for Social Reconstruction in 1919. Think about the alliance between Roosevelt and Msgr. John A. Ryan during the New Deal era. And think about what that means for today, and for the Catholics who support these kinds of judicial appointments so wholeheartedly.
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Rewriting of history requires the elimination of precedent. Is it no wonder we see the two going hand in hand?
We must not forget that other great Catholic priest who was also a Roosevelt supporter and fighter for Catholic social justice and who fought for nationalization of essential industries, worker’s rights, and monetary reform: Father Charles Coughlin.
As Father Coughlin said: “The New Deal is Christ’s Deal!”
Not sure where of course the commenter went to Law School but I think there was enough in the precedent pipeline 5 to 10 years ago that a Law Student could cite to possibily say that the Federal Govt could not make you buy an insurance policy. It does appear the Clinton Appointee that ruled in the majority might think so. It’s a huge opinion and I intend to read it. I actually do read these things when they come out
I guess this analysis reminds me of a case I was trying to explain , a lonng long time ago, long ago that the Supreme Court took up. That is United States v. Morrison where the Supreme Court invalidated parts the Violence Against Women Act of 1994 because they exceeded congressional power under the Commerce Clause.
I was trying to explain why I thought at the time this was a proper choice and people were shocked at this party. WHY DO YOU HATE WOMEN. ARE YOU FOR RAPISTS!!
No matter how much I tried to explain the issue here was not the horror of rape but the Commerce cause power it was all for naught. In their view that was all meaningless mumbo jumbo that was getting in the way of protecting the “common good” .
In a similar fashion I think you might be seeing this issue like the women at the dinner party. They see a problem (Rape) and just want it dealt with. They are not totally concerned about how we do it or perhaps even if some powers are abused to get there. Likewise you see a problem (Health Care) and the interesting commerce clause questions, the tax and spend powers, etc that are making their way up the Court might not that huge of a concern to you perhaps. Maybe they are. However if those issues interest you be aware there is some legitimate discussion ( that is not fringe) about it limits.
Working out and discussing what is the power of the Federal Govt under the Tax and Spending clause and the Commerce clause is serious and respected work. I am not sure what is “laissez-faire” or “starkly at odds with Catholic social teaching” about that. As to Catholic social justice and its goals there is perhaps more than One way to skin a cat and I am not sure pointing out one way might be legally illegitimate or problematic puts one outside the Catholic circle at all.
Frank Hull isn’t a movement conservative at all; she’s a Clinton appointee. Yet she voted to strike down the law.
Conversely, the Sixth Circuit opinion upholding the law was joined by Jeff Sutton, who really was a movement conservative before Bush appointed him.
Moral: there’s more to the law than will fit within reductionist partisan thinking.
Since we’re on the subject of precedent, I’d like to see one case that stands as a precedent that the government may require all persons to purchase services from an industry. Because if not, this whole “this opinion is way outside the mainstream” stuff is simply hyperbole.
And I’m not quite sure when THE Catholic position on healthcare required people to purchase insurance from insurance corporations. If anything, Obamacare is a nice union between the interests of large government and large business and we’ve seen in the past few weeks with the mandating of inclusion of contraception and abortifacients regardless of religious beliefs that this union is directly opposed to the individual, society, and Catholic teaching.
“And remember, this underlying philosophy of this “laissez-faire constitutionalism” is starkly at odds with Catholic social teaching, which sees law not in the Enlightment tradition of protecting individual rights but as “ordinance of reason for the common good, made by him who has care of the community” (Aquinas). ”
And how is the common good served by forcing people to purchase a product they may not need or want, and possibly cannot afford? In effect it would be forcing the healthy poor, who might be young people gaining work experience, to subsidize the unhealthy rich, who would benefit through lower insurance rates. There are better ways of serving the common good, for example providing a safety net plan for the poor, such as is done in Oregon through the Oregon Health Plan.
Let’s be clear. The law DOES NOT require anyone to purchase health insurance. The law requires all Americans to pay a fee for the costs of health care. You are exempted from the fee if you have covered yourself by some other means — an employer plan, a public plan or a plan from the exchange.