Harvard Law, the Commerce Clause, and the Obamacare Mandate

By Jim Byrd | May 11, 2012 | Canada  Free Press

Harvard Law School Professor Einer Elhauge published an article in The New Republic titled, “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?” The foundation of his argument is the belief that the Militia Act of 1792 was a mandate to purchase a firearm, and the 1790 and 1798 acts by Congress requiring that ship owners purchase medical insurance for seamen, was a mandate forcing the citizens of the states to make a commercial purchase under the Commerce Clause.

Professor Elhauge presents as fact that these two mandates required engagement in commerce, thus setting 200+ years of precedent by the first Congress, “which was packed with framers,” as per his depiction. He then states, “Nevermind that nothing in the text or history of the Constitution’s Commerce Clause indicates that Congress cannot mandate commercial purchases.” The professor appears to subscribe to the oft employed licentious theorem of the Left that if it is not enumerated in Article 1, Section 8, then Congress can presume it has unfettered authority to mandate, tax, legislate, control, and dictate wantonly. But, plausibly, historically, and factually, that is neither the intent nor the spirit of Article 1, Section 8, as it was not an enumeration of what the government should or could do, but rather a very narrow set of limitations constraining what the government can do. What the government cannot do is mandate commercial purchases under the Commerce Clause, as that power was not enumerated, intended, nor would it have survived ratification. Perhaps a perfunctory history lesson of why the Constitution was created, and the purpose of the Commerce Clause, may be the antidote to apocryphal balderdash.

Liberals, progressives, and a particular genus of law professors are wringing their hands in animated intoxication regarding these two particular mandates cited by Professor Elhauge. And reinforcing Professor Elhauge’s theorem of mandated purchases under the Commerce Clause, the Left are evidencing case law functioning as unsanctioned amendments to the Constitution, or as unsanctioned legislation fabricated by American jurisprudence. This benighted infatuation with stare decisis, this judicial inbreeding of the Supreme Court assigning dominion of past Supreme Court rulings as surrogates for the Constitution, has resulted in the passing of deleterious and recessive traits to each Supreme Court progenitor. As with genetics, if the Supreme Court reaches a faulty decision, or flagrant political or agenda driven decision, this trait is passed down to each successive Supreme Court that is indentured by the judicial genetics of stare decisis. Professor Elhauge appears to be erroneously attesting that the first Congress, “which was packed with framers,” mandated that the citizens of sovereign states, states that ceded very few enumerated powers to the newly created federal government, were forced to engage in commerce ad libitum.

Before brandishing adulterate case law and phantom mandates, one question must first be answered: What was the purpose of adding the Commerce Clause to the Constitution?

One must delve much deeper than the burlesque Supreme Court assembled by FDR and its league of handpicked ideologues parading around as judiciously inclined justices. These robe wearing sycophants infected American constitutional jurisprudence with the New Deal, and especially Wickard v. Filburn. Wickard v. Filburn breached the boundaries of the Constitution by affording the federal government an almost immeasurable expansion of powers via the Commerce Clause. And if this unburdened scope of power was the original intent of the Commerce Clause, what was the point of the founders penning the remainder of the Constitution if it is subordinate to the Commerce Clause? Indeed, it is necessary to delve beyond FDR’s reign, beyond Professor Elhauge’s imaginary mandates of commerce, back to the Articles of Confederation and the commercial dysfunction between the states.

Prior to the ratification of the United States Constitution, the governing document of the United States was the Articles of Confederation. Of the myriad weaknesses of this document, the focus will be commerce and the militia, as these two areas are what Professor Elhauge perhaps employed in some fashion of palmistry to arrive at his supposition.

Prior to the American Revolution, colonial commerce was regulated by Great Britain, and to a greater extent in the years just preceding the Declaration of Independence. After independence was declared, the framework of colonial commerce changed, immediately going from regulated to unregulated. Without a structured and enforceable set of regulations to ensure the equitable and uninterrupted flow of the transportation of goods between the states, counterproductive trade barriers between the states arose and jeopardized the necessary commercial alliances of the states essential for sustainability of the nation. The states having the advantage of ports charged exploitative tariffs on goods that passed through their ports en route to and from the states without ports. This started a series of trade wars pitting states with ports against states without ports, with both sides charging counterproductive tariffs.

To compound the problems created by discordant commerce, the Articles of Confederation lacked the mechanism to provide and enforce a uniform monetary policy to protect commerce as well. Under the Articles of Confederation, the states had the authority to setup their own monetary systems and print their own currency.

Article III of the Articles of Confederation addresses the states entering into a “firm league of friendship with each other, for their common defense,” while Article VII addresses the appointing of officers of the land forces raised by the states, and Article VIII addresses the expenses and funding of “All charges of war, and all other expenses that shall be incurred for the common defense or general welfare.” The government did not have to power to raise an army for defense, and the government did not have to funds to honor Article VIII regarding paying expenses of defense, as the government was unable to even collect the taxes due to pay off the debt from the Revolutionary War. The states generally ignored the federal government regarding taxes, and the Articles left the government powerless to collect taxes.

Even though the states maintained their militias after the end of the war, the inability of the federal government to raise an army left the newly sovereign states vulnerable without a united military front. Even after the Treaty of Paris was signed, the forts in Northwest Territory remained under British control and occupation. The states were not enforcing nor abiding by the provisions of the Treaty of Paris, and the government lacked the power to compel them to do so.

Read the full article here.

Related Articles

• McConnell: Commerce Clause ‘meaningless’ if Obamacare ruled constitutional [VIDEO] (dailycaller.com)
• The individual mandate case is an opportunity to begin restoring the framers’ vision (dailycaller.com)
• Death knell for Obamacare may be near (dailycaller.com)
• Obamacare: The President’s Wooden-headed Interpretation of Our Constitution (biggovernment.com)
• Judicial Watch Files Brief with U.S. Supreme Court Challenging Constitutionality of Obamacare (biggovernment.com)
• Limit this, Jack! (dailycaller.com)
• Wickard v. Filburn: Time for It to Go! (spectator.org)
• GUNS, SEAMEN, AND THE COMMERCE CLAUSE: Columbia Lawprof Phil Hamburger responds to Einer Elhauge. … (pjmedia.com)
• Uphold Healthcare Reform, Narrow the Commerce Clause (tightwind.net)

What Left-Wing Law Professors Really Think About You, and the Role of Lawyers

By Hans Bader | April 3, 2012 | OpenMarket.org

You’re just a lab rat to be socially re-engineered by activist judges and lawyers — who think they know how to run your life better than you do — or a chump to be fleeced for lawyers’ enrichment. That’s the message some law professors apparently instill in students at Howard University: “At Howard, they tell us as soon as we get there, ‘If you’re going to be a lawyer, you’re either a social engineer or a parasite on society,’” a student at Howard declared. “That’s how I think about life, is to be a social engineer.” (Although Howard University is nominally “private” and thus not accountable to taxpayers, it is directly “funded by the U.S. Government, which gives approximately $235 million annually” to it in special appropriations.)

Promoting social engineering by lawyers (through “institutional-reform” lawsuits brought by left-wing lawyers and law-school clinics) is a bad idea. Left-wing law professors are a bossy lot: some want to ban conservative or politically-incorrect speech as “hostile-environment harassment,” control what you eat and drink, control your sex life (they view heterosexual sex as patriarchal and thus “consensual rape”), raise your taxes through state-court decrees ordering increased funding of government programs, and take away your property (and your children, if you home-school them).  They also often lack common sense, or a grasp of certain basic realities of life. One of my professors at Harvard Law School was notorious among his colleagues for behaving as if on drugs. Another of my professors, the radical Duncan Kennedy, who was so prominent and respected among law professors that he was called the “Pope” of the “Critical Legal Studies” movement, advocated rotating the law professors and the janitors into each others’ jobs. (The janitors liked the idea of being paid like law professors, but had no interest in teaching law, and thought Kennedy’s idea was flaky. Kennedy himself was married to a wealthy heiress, and did not need a law professor’s handsome salary to live on. America would be better off being run by Harvard Law School’s modest, hard-working janitors than by its mostly left-wing law professors.)

Read the full article here.

Related Articles

• Welcome (samstringfellow.wordpress.com)
• Harvard Radical Law, Critical Legal Studies: And Our Saul Alinsky President Radical (tarpon.wordpress.com)
• The Terrible Obama Video That Haunts Him (ken_ashford.typepad.com)
• Racial Quota Fallout (lewrockwell.com)
• A Future in Politics Less Desirable Among Today’s Pre-Law Students (usnews.com)
• Did Obama really teach Constitutional Law? (halfsigma.com)
• Rule of Law ” More Obama Tapes: Michelle Obama a Race Agitating Occupier? (gunnyg.wordpress.com)
• What Left-Wing Law Professors Really Think About You, and the Role of Lawyers (openmarket.org)

Critical Race Theory: Of The Racists, By The Racists, And For The Racists

By Cardinal Lawyer | April 2, 2012 | Breitbart

Picture this: you are the president of a major law school. A visiting professor, assigned to teach an introductory law class, ignores the curriculum and instead usurps the class time to espouse a radical race theory he has recently developed.

First-year law students, mandatorily assigned to the class, stop attending the class, moonlighting instead at other sections of the same course being taught by other professors.

As an administrator, what do you do? To reasonable people, the course of action is obvious–you simply tell the visiting professor to stop it, and to stick to the curriculum.

But you don’t do that. Why not?

The answer is obvious, but complex: because you know you will be called a “racist” by activists, and you will do anything to avoid that. So you try to tiptoe around the problem, and you make it worse.

That’s one legacy of racialist Derrick Bell, when he was invited to teach at the home of political correctness, Stanford Law School, in the 1980’s.

The success of radical leftists in taking over administrative control of various institutions–the media, higher education and public worker unions–was partly based upon their tactic of accusing their opponents of being racist.

The truth is, it worked very well for a long time, and often still does. Human nature is to give in to avoid being called racist; it’s just not worth it for ordinary people doing everyday jobs–they didn’t sign up for that kind of harassment. The left knows it, and exploits it.

That partly explains how the left has used an intimidating culture of fear to turn institutions into bowls of milquetoast. It’s a decades-old legacy of ordinary people backing down again and again, giving in to the radical Left.

In the universities, the Marxist/collectivists didn’t call themselves “communists” or “socialists;” they used the brand name of “Critical Studies.”

Buried in Derrick Bell’s resume is an instructive episode showing how the racial intimidation of the “Critical Studies” race baiters helped move the Leftist’s agenda.

Bell–who died last year–objected to neutrality and color-blindness in the Constitution. Bell wanted race to become a permanent weapon of the left–in short, he was a race warrior and wanted constant racial strife.

To justify his race war, he argued that the existence of slavery at the time of the U.S. Constitution rendered that agreement unenforceable against blacks. He reasoned that the Constitution was fatally illegitimate, and could never be fixed–not by the Civil War or the resulting anti-slavery amendments, nor by the Civil Rights amendments. To Bell, the Constitution was merely a tool to keep the black race down–permanently. It was government of the racists, by the racists and for the racists.

And because it’s illegitimate, it does not have to be obeyed. That’s the intellectual justification. Got it?

Read the full article here.

Related Articles

• The Vetting: Bell’s Critical Race Theory Promoted in Public Schools (johnmalcolm.me)
• Critical Race Theory and the Trayvon Martin Case (johnmalcolm.me)
• The Vetting: Obama Channels Derrick Bell in Attack on Supreme Court (johnmalcolm.me)
• What is Critical Race Theory? (johnmalcolm.me)
• Obama, Media Exploit Trayvon Martin Shooting To Justify Derrick Bell’s ‘Critical Race Theory’ (5440fight.com)
• Soledad O’Brien And Breitbart’s Joel Pollak Clash Over Critical Race Theory (mediaite.com)
• Bell, via Kagan, on Critical Race Theory: The Constitution Is the Problem (wdednh.wordpress.com)
• Critical Race ‘Theory’ (jhappolati.wordpress.com)
• Video: Derrick Bell Explains The Underlying, Racialist Assumption Behind Marxist Critical Race Theory (nicedeb.wordpress.com)

Law School Humbug

Heather Mac Donald | Autumn 1995 | City Journal

Law schools across the country have taken on a new function: cleansing students’ souls. The taint to be extirpated, of course, is racism and sexism, and in many classes the sometimes dramatic measures needed to root out such blights have driven away the more mundane task of teaching legal analysis. “I was going home crying every day,” says Linda P., a law student at New York University. The source of her unhappiness was her “Race and Legal Scholarship” course. “No matter what I said, the response was: you don’t know because you’re white. Some students wouldn’t speak to me after class. It scared me, because I thought I was this big liberal, and I was treated like the devil.”

Linda’s professor, Paulette Caldwell, practices the hottest form of legal scholarship today: critical race theory. While therapeutic courses such as Caldwell’s remain a small portion of the curriculum at most law schools, the theory behind them has nevertheless shaken up the legal academy. Only ” feminist jurisprudence” rivals critical race theory in influence and sheer sex appeal; both fashions are cut from the same cloth.

The impact of critical race theory and feminist jurisprudence doesn’t stop at the ivy-clad walls of the legal academy. Feminist jurisprudence has revolutionized the law of sex discrimination and rape. Courts across the country, persuaded that legal practice is deeply racist and sexist, are conducting costly studies of their own alleged biases. Both movements are trying to limit First Amendment guarantees in order to protect female and minority sensibilities; their first success, beyond campus speech codes, has been in the workplace. These repercussions are all the more remarkable when you consider that critical race theory and feminist jurisprudence are fundamentally antithetical to the very notion of law.

Back in the law school classroom, Linda P. is not the only student crying these days. Law professors in many schools boast that their courses have reduced students to tears, sent them fleeing to the dean, and created crosscurrents of hostility in the classroom—proof that the professors are ” touching a nerve.” Frances Lee Ashley, a University of Tennessee law professor, faced numerous charges from students that her “Discrimination and the Law” class was simply a forum for white-bashing, that she favored black students, and that the class exacerbated racial tensions. Ashley was unrepentant. “If teachers intend to open this scary space,” she writes in the California Law Review, “they need to be ready to make it reasonably safe and bearable for all members of the enterprise. . . . As a teacher in a predominantly white but desegregating institution . . . you [cannot] consistently do the right thing if by that you mean behavior that allows the average white student to avoid any feeling of being personally accused or defensive when matters of race are discussed.”

Charles Jones, a professor at Rutgers-Newark Law School, asks students in his critical race theory seminar to write an essay about race relations, challenging, among other things, “the assumption that blacks, Jews, and Latinos are allies.” When a black student wrote about her indelible dislike of white people, Jones knew he had struck gold. He asked the student to read her essay aloud in class; an Italian-American woman burst into tears and fled the room. Fortunately, critical race teachers are prepared for such disruptions. “Getting in touch with your feelings is difficult,” explains Jones. “We let [the Italian-American woman] experience out her grief. She sat out a class or two, and when she came back, she wouldn’t talk.” It was a useful lesson, Jones concludes: “She was naive to think there’s not a lot of cross-racial hatred.” (However open-minded critical race teachers may be about “cross-racial hatred,” it is difficult to imagine this story coming out as it did had a white student written of his dislike for blacks.)

The core claim of both critical race theory and feminist jurisprudence is that law is merely a mask for white male power relations. Law, in other words, is indistinguishable from politics; the purported objectivity and neutrality of legal reasoning is a sham.

However crude the multicultural trappings of these theories, their fundamental argument has a respectable pedigree. For over a century, American legal scholars have challenged the traditional distinction between legislative and judicial action. According to the traditional view, legislators make the law; judges merely apply it. Judicial decisions, this tradition holds, are determined by preexisting legal rules, not by the judge’s own whims.

The stakes riding on the accuracy of this conception are enormous. For if rules do not in fact determine the outcome of cases, if judges inevitably enjoy such enormous interpretive discretion that they are virtually creating law as they go along, then the legitimacy not just of the judiciary but of governmental power itself is thrown into doubt.

The first American thinker to question the conventional understanding of law was also America’s greatest legal scholar: Justice Oliver Wendell Holmes, whose ideas foreshadowed virtually all of twentieth-century American jurisprudence. Holmes was reacting against the late-nineteenth-century view of law as a fixed system of unchanging, quasi-Platonic principles.

Bunk! replied Holmes; “law is no brooding omnipresence in the sky.” To equate it with a set of timeless legal principles ignores the fact that judges have always transformed the law in accord with changing opinions and social conditions. In fact, argued Holmes, there are no legal principles in any meaningful sense. Law is simply a prediction of “where the axe of the state will fall.”

By the twenties and thirties, Holmes’s skepticism about legal rules had expanded into one of the most powerful movements in American legal scholarship. The “Legal Realists” developed detailed exposés of the malleability of legal reasoning in every kind of judicial decision making. Since precedent can always be found on either side of a case, they claimed, judicial decision making and even fact-finding are often determined by unconscious, irrational factors or by the judge’s political and economic beliefs. Legal rules, in other words, don’t determine outcomes; judges do.

Men of letters as well as the law, the Legal Realists produced a witty and urbane corpus of work—unlike that of the current crop of legal critics. The Realists argued that law should rest on a rational basis, such as the emerging discipline of social science, not on abstractions. Accordingly, they urged judges to sweep away archaic common-law rules that no longer made sense.  Their criticisms were unimpeachable—many of the traditional distinctions determining when someone was liable for an injury, for example, were wholly artificial. But the skeptical judicial housecleaner often turns into the sorcerer’s apprentice. “Gradually, every limitation [on legal liability] begins to seem arbitrary,” warns Philip E. Johnson, a law professor at the University of California at Berkeley. Once a precedent has been established for ignoring existing case law, decisions that follow the law require justification just as much as decisions that depart from it, says Johnson.

Legal Realism lost much of its glamour after World War II. But in the 1970s, leftist law professors dusted off the Realists’ critique and dressed it up in German and French literary and critical theories. Their favorite phrase to describe their work—”trashing”—reflects their nostalgia for the anti- establishment 1960s. The result of their efforts was Critical Legal Studies (CLS), a diverse, sometimes impenetrable mix of Marxist analysis, postmodern literary criticism, and American legal skepticism. CLS dominated the academic left for well over a decade, gaining widespread media attention in the 1980s for tearing up Harvard Law School. (Concurrently, “Law and Economics”—equally iconoclastic—moved in from the right, creating, together with CLS, a pincer offensive on traditional jurisprudence.)

Like many of the Realists, the Crits (as CLS practitioners called themselves) argued that law is just politics wearing robes. But the Crits’ real gripe was not with law but with liberal society. They berated liberalism’s emphasis on individual freedom and limited state power. Many called for a world without distinct public and private spheres, in which the individual would not be “alienated” from the collectivity. The Crits were particularly scornful of “illegitimate hierarchies,” a phrase that included every possible type of ranking or distinction among individuals. Harvard’s Duncan Kennedy, the original bad boy of CLS, infamously called for breaking down law school hierarchies by rotating all law school jobs from dean to janitor on a regular basis and paying all employees the same salary.

According to the Crits, the real purpose of law is to make an oppressive capitalist system appear inevitable. Law does this by duping people into believing that the rules that govern the distribution of property, the performance of obligations, and the relation between the state and civil society are “natural” and necessary. We forget, say the Crits, that law is man-made and could as easily be constructed quite differently—property need not be private, for example; or an employer could have no right to control his employees’ behavior; or responsibility for deviant behavior could be assigned not to the individual but to social forces.

Unlike the Realists, the Crits seldom ventured into the practical world of law reform, preferring instead to generate anti-bourgeois theory in academic comfort. To the extent they did make practical proposals, these consisted of familiar Old Left prescriptions: public ownership of banks and insurance companies, rent control, union control of business, and vigorous housing-code enforcement.

Read the full article here.

Related Articles

• What is Critical Race Theory? (johnmalcolm.me)
• Barack Obama At Harvard Law School And Derrick Bell–Videos (raymondpronk.wordpress.com)
• Critical Race Theory: Of The Racists, By The Racists, And For The Racists (johnmalcolm.me)
• Critical Race Theory and the Trayvon Martin Case (johnmalcolm.me)
• The Vetting: Bell’s Critical Race Theory Promoted in Public Schools (johnmalcolm.me)
• What Left-Wing Law Professors Really Think About You, and the Role of Lawyers (openmarket.org)
• Critical Race Theory Explained (gunnyg.wordpress.com)
• Soledad O’Brien And Breitbart’s Joel Pollak Clash Over Critical Race Theory (mediaite.com)
• Should Law School Come With a Warning Label? (taxprof.typepad.com)

The Ryan Test: Demagoguery Versus Ideas

August 12, 2012 By John Malcolm Leave a Comment

By Jonathan S. Tobin | August 11, 2012 | Commentary Magazine As John wrote earlier today, liberals are convinced that Mitt Romney’s choice of Paul Ryan to be his running mate offers them a golden opportunity to savage the Republicans about the Wisconsin congressman’s budget plans. Predictably, the New York Times delivered one of the first such salvos in its editorial posted […]

Smoking Obama’s Crack and Yearning for the Mud

August 12, 2012 By John Malcolm Leave a Comment

By Vanderleun | August 10, 2012 | American Digest [From 2008. Only the names have been changed because the target has changed.] This downward flight of intellectuals has been going on ever since the Romantic movement began its counter-revolution a couple hundred years ago. No matter how much they flap their lips it’s a fall, not […]