The Supreme Court vs. the Constitution

An erstwhile friend, Gerald Walpin, Esq., who I introduced to his wife some 50 years ago, but who ended the friendship soon thereafter, has surfaced, publishing a book titled "The Supreme Court vs. The Constitution," which is available on Amazon. 

Out of an interest in the writings of one out of my past, I bought the book, read it, reviewed it, and published my review on Amazon.

This led to an exchange that I want to share with you. It consists of three parts: My review, Mr. Walpin’s rebuttal, and my sur-rebuttal. 

Publishing all three in one post makes this very long, but for whatever it is worth, here it is. (I am no longer writing for my blog, but continue to post that which I write in other contexts.)

My Review

I have to say that I was deeply disappointed by the quality of this book. While I did not expect to agree with its conclusions, I expected its reasoning and its analysis to be beyond compare. My expectations in this regard derived from the authors undoubtedly brilliant career as is set forth in the latter pages of his book and which did not even mention the author having been awarded the American Inns of Court Professionalism Award for the Second Circuit.

Unfortunately, while the book gives great pretense to being a scholarly work, boasting 881 end notes, it falls flat not only for its distortions, but for its glaring omissions, not to speak of its inaccuracies. In the final analysis it ends up being no more than a screed in support of its undoubtedly sincerely held opinions. In summary, the book concludes that every Supreme Court decision that Walpin likes is one that is anchored in the Constitution, while every decision it dislikes is denounced as judicial activism, and even as being anchored in the jurist's “personal views”.

In its very early pages (at pages four and five to be exact) the author criticizes Justice John Roberts for having voted to uphold the individual mandate in the Obamacare statute on the ground that it is a Constitutionally permissible tax and asserts that this was, “an interpretation that no other justice joined."

This is quite a remarkable assertion since a glance at the opinion reveals that Justice Ginsburg, with others joining wrote:

“I agree with THE CHIEF JUSTICE that the Anti-Injunction Act does not bar the Court’s consideration of this case, and that the minimum coverage provision is a proper exercise of Congress’ taxing power.”

But quite aside from taking the Chief Justice to task for not striking down a clearly constitutional act of Congress, Mr. Walpin lauds the five Right Wing Justices for having all agreed that the Act does not stand constitutional muster under the Commerce Clause.

On this subject he chooses not to mention the view expressed by President Ronald Reagan’s Solicitor General, Charles Fried:

“Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story….” [The full transcript of the interview can be found here.] 

Walpin then goes on to assert that the country’s “foundation documents” are “The Declaration of Independence and the Constitution." Now I do not want to belittle the importance of the Declaration of Independence, which was a resounding assertion of the Colonies right to rebel against the British crown. But it has no legal standing in our jurisprudence. It was written long before there was anything resembling a United States. It was published in 1776. Even the Articles of Confederation were not adopted until 1781 and the Constitution, which is the country’s foundational document, was not adopted until 1787. So why does Walpin make this rather far fetched assertion. We find out when we turn to Chapter IV of Walpin’s book. He asserts in the heading to the Chapter, (no less) “FROM GOD AS THE SOURCE OF ALL RIGHT TO THE BANNING OF GOD."

Now Walpin’s problem here is that God in not mentioned anywhere in the Constitution. There is no mention of a deity; there is no mention, of “the laws of nature and of nature’s God”; there is no mention of “Divine Providence.”

The only mention in the Constitution of religion is in the very first amendment of the Bill of Rights, known as the “Establishment Clause” and it states: “Congress shall make no law respecting an establishment of
 religion, …” That’s it. And Walpin devotes a chapter to discussing God in the Constitution and never mentions this inconvenient clause of the Constitution and then berates the Court when it gives voice to this Constitutional mandate.

I could go on chapter after chapter citing these errors of omission and commission, but that would make this review intolerably long. So let me mention just one other deliberate distortion. In discussing the seminal case of Roe v. Wade, which legalized abortion, Walpin gives the impression that the concept of a Right to Privacy was first enunciated in Roe. In fact it was put forth in Griswold v. Connecticut, 381 U.S. 479 (1965) a case that gave constitutional protection to contraception. Why was this not mentioned? I suggest it was because a right to contraception is not controversial.To a large extent Walpin argues for a theory often ascribed to putative Supreme Court Justice Robert Bork known as “Originalism”, which to a large extent acts as though the Constitution had never been amended, the Civil War had never been fought, and particularly the 14th and 15th amendment had never had been enacted. Yet Justice Bork himself appears to now have repudiated this doctrine.

In a book that he co-authored [It can be found here.] there is set forth in its Introduction: 

“Regrettably, but perhaps inevitably, ‘[t]he ink was not yet dry on the Constitution when its revision began.’ Almost immediately, Congress began pressing beyond specifically enumerated powers granted it in Article I. As a result, today, Americans encounter a national government far more expansive than the Framers and men of their generation could ever have imagined…

“Uncertainty stems, in part, from the recognition that the scope of the commerce power has expanded so far beyond the original understanding of that power's boundaries that any attempt to adhere strictly to its original meaning today would likely be futile and inappropriate… “There is no possibility, today, of adhering completely to the original constitutional design. Such a daring plan would require overturning the New Deal, the Great Society, and almost all of the vast network of federal legislation and regulation put in place in the last two-thirds of the twentieth century. It appears that the American people would be overwhelmingly against such a change and no court would attempt to force it upon them.”

And at a later point he goes on to say: “When the world has changed but the underlying constitutional principle remains, the task for those ‘in this generation [is] to discern how the framers' values, defined in the context of the world they knew, apply to the world we know.’ The world we know includes the long-standing jurisprudence on the commerce power because ‘[w]hen there is a known principle to be explicated the evolution of a doctrine is inevitable."I wish I could say positive things about a book written by one with such a brilliant career, but alas, I cannot.

Walpin’s Rebuttal:

I thank Mr. Scheller for his candor in conceding that, before he read my book, he had already decided that he would not agree with its conclusions. Significantly, he doesn't even dispute the basic lesson of my book - that a majority of justices have too frequently substituted their personal views for what our Founders intended the Constitution to mean, many times also ruling contrary to earlier Supreme Court precedents.

While I will not spend my time responding to each nit-pick that those who read my book (with a closed mind) claim to find, I will exemplify the basic error in Mr. Scheller's comments by responding to two of his meritless assertions. First, he proclaims that the Declaration Of Independence has "no legal standing in our jurisprudence." That assertion disregards about 200 Supreme Court opinions that cite the Declaration Of Independence. Here is one example, Cotting v. Godard, a 1901 opinion, very telling in its words that directly controvert Mr. Scheller's criticism. First, the Court referred to the Declaration Of Independence as the "first official act of this nation" that "declared" this government's "foundation" - just the word Mr. Scheller chastises me for using. And then the Supreme Court repeated what it had said in an 1886 opinion: "It is always safe to read the letter of the Constitution in the spirit of the Declaration Of Independence," i.e., the Declaration Of Independence, where relevant, should be considered in deciding the meaning of the Constitution.

Let's also look at the specifics of what Mr. Scheller was arguing when he asserts the current irrelevancy of the Declaration Of Independence. According to him, the Declaration's recognition of God as "the source of all rights" was rejected by the adoption of the Constitution. He fails to explain how the same generation, including eight of the same people who signed the Declaration and were also personally involved in drafting the Constitution, would only 11 years later suddenly discard God from that central place of recognition in our Country. Also, he is forced to ignore, because it cannot be reconciled with his exiling God from our Country, the many examples in my book of our Country's succeeding generations' reaffirmation of the Declaration's recognition of God, in placing "In God We Trust" on our Country's issued money, and choosing it as our Country's motto.

A second Mr. Scheller's meritless attacks on my book: He faults me for "giv[ing] the impression that the concept of a right to privacy was first enunciated in Roe" in 1973. He cites Griswold v. Connecticut, 8 years before Roe, as having given "Constitutional protection to" person's privacy. Mr. Scheller ignores several pages at the beginning of this chapter, where I relate that the Constitution's Bill of Rights created a right to privacy in the specified contexts of those provisions, such as, "the right not to have the privacy of one's home, property, and body violated by any unreasonable search (Fourth Amendment.)" Unlike what Mr. Scheller asserts, the 1965 Griswold case was nothing more than a reaffirmation that the Fourth Amendment protected husbands and wives in their home from an invasion of police to determine if they were using condoms or other birth-control devices. See this language from the Griswold opinion: "The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses ... against unreasonable searches and seizures," not "allow[ing] the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives." This was a quote from NAACP v. Alabama, 377 U.S. 288, 307. This was consistent with a 1967 Supreme Court decision - 2 years after Griswold that rejected "a general `right of privacy'." Thus, when Roe suddenly "found" a general right to privacy, it was creating a right that the Court, six years before, had ruled did not exist.
Enough said. Mr. Scheller can continue his nit-picking, to which I will no longer respond. I prefer instead to leave the evaluation of my book to those who read it with an open mind.

My Sur-Rebuttal:

Mr. Walpin thanks me for my candor “in conceding that, before (I) read (his) book, (I) had already decided that (I) would not agree with its conclusions. That should not be a surprise to him since, as he well knows, I am thoroughly familiar with his views, but even if I weren’t, the endorsement of his book by Professor Yoo, the author of the infamous torture memo, would have given more than a clue.

But in an age when most people only read that which they expect to agree with, Mr. Walpin should give me credit for reading that which I had every expectation would be opposite to my deeply held views. Be that as it may, Mr. Walpin should thank me, for nothing propels an interest in a book more than controversy, and I note that since I posted my critique the number of people who posted favorable comments on his book went from one to three.

But allow me to respond to Mr. Walpin’s post.

Mr. Walpin writes in his rebuttal: “Significantly, he doesn't even dispute the basic lesson of my book - that a "majority of justices have too frequently substituted their personal views for what our Founders intended the Constitution to mean, many times also ruling contrary to earlier Supreme Court precedents.”

Indeed I do not dispute that a majority of justices have too frequently substituted their personal views for what the Constitution provides, many times also ruling contrary to earlier Supreme Court precedents!” But Walpin turns the situation on its head. It is the Robert and the Rehnquist courts that have consistently used a bare 5-4 majority to strike down years of precedent and been a far more “activist court” than any in recent memory. Allow me to quote from Professor Winkler’s excellent essay to be found on the SCOTUS blog here.

“Since John Roberts became Chief Justice in 2005, the Court has issued one landmark ruling after another. The Roberts Court gave us Citizens United, which struck down longstanding limits on corporate political spending. This Court also allowed new restrictions on women’s right to choose; became the first Supreme Court in American history to strike down a gun control law as a violation of the Second Amendment; effectively outlawed voluntary efforts by public schools to racially integrate; and curtailed the reach of environmental protections.

“In many of these decisions, the Roberts Court overturned or ignored precedent, including Rehnquist Court decisions less than a decade old. Prior to Citizens United, the Supreme Court had explicitly held in two cases that corporate political expenditures could be limited – the most recent of which was handed down in 2003. Six years before the Roberts Court upheld the federal ban on “partial birth” abortion, the Rehnquist Court, which wasn’t known for its liberal leanings, had overturned a nearly identical law.

“Of course, the Roberts Court isn’t the first to overturn precedents and issue major rulings. Yet this Court has been uniquely willing to do so by sharply divided 5-4 majorities. The Warren Court’s Brown decision was famously 9-0. New York Times v. Sullivan, which freed up the media to discuss public figures, was decided by the same margin. Gideon v. Wainwright, on the constitutional right to counsel, and Loving v. Virginia, invaliding bans on interracial marriage, were also unanimous. Even Roe v. Wade was decided by an overwhelming 7-2 vote.”

And this quote from Professor Winkler does not even touch upon the unprecedented decision in Bush v. Gore where the court took the unprecedented step of choosing the next President of the US by a partisan 5-4 decision, nor the very recent decision in SHELBY COUNTY, ALABAMA v. HOLDER, ATTORNEY GENERAL, ET AL. where the court struck down a statute specifically authorized by the 15th Amendment, which provides: 

“SECTION. 1. The right of citizens of the United States to
 vote shall not be denied or abridged by the United States or by 
any State on account of race, color, or previous condition of servitude. 

SECTION. 2. The Congress shall have power to enforce this 
article by appropriate legislation.” 

The power was given to Congress to decide what the appropriate remedy is, not the court’s. Yet SCOTUS by 5-4 decided that Congress used bad judgment, and took it upon itself to declare unconstitutional that which the Constitution expressly authorized Congress to decide.

But let me now return to Mr. Walpin’s attack on me. He refutes my contention that the “Declaration of Independence” is not the law of the land and claims “200 Supreme Court opinions that cite the Declaration Of Independence.” He then goes on to say, “Here is one example, Cotting v. Godard, a 1901 opinion, very telling in its words that directly controvert Mr. Scheller's criticism.”

But its words don’t, and it doesn’t.

Allow me to quote from that decision, “such declaration of principles (referring to the Declaration of Independence) may not have the force of organic law, or be made the basis of judicial decision as to the limits of right and duty, …” (Emphasis added).

Did Mr. Walpin think I would not bother to read the decision?

But in insisting that the Declaration of Independence somehow overrules the clear mandate of the Constitution, “Congress shall make no law respecting an establishment of 
religion”, he insists on pretending that this language does not exist. He then asks me to explain: “How suddenly (the founders would) discard God from that central place of recognition in our Country”. But they didn’t! They simply said, as the Supreme Court has held, that it is not the Government’s place to be involved in religion. It belongs in the private sphere, and that has served this country well.

But then Walpin goes of the rails on the Courts history on “privacy” and goes from distorting to dissembling.

In writing about the Griswold case, Mr. Walpin writes and I quote “Unlike what Mr. Scheller asserts, the 1965 Griswold case was nothing more than a reaffirmation that the Fourth Amendment protected husbands and wives in their home from an invasion of police to determine if they were using condoms or other birth-control devices.”

But that is patently untrue. The defendants in the Griswold case were charged with, and I quote from the Court’s opinion: “(giving) information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.” 

And the statute that was before the court in the Griswold case provided in Section 54-196: 

“Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”

Does that sound like it was about police invading anybody’s home?

Mr. Walpin accuses me of “nit-picking”. Does the exposure of such fundamental misstatements amount to “nit-picking”?

There should always be room for differences of opinion. But the misrepresentation and/or distortion of facts is inexcusable. This has become far too frequently the realm of our political discourse. I had hoped for something far better from Mr. Walpin, and I still hope for something better from him in the future.

Comments on the above are welcome and will be responded to, but will not be published or posted.

Supreme Court on the Health Care Reform Law & the Ryan (Republican) Budget

In my last post "Control of the Weather (Discussion II)," I said that I would postpone my discussion entitled “It’s All About Race” because the comments on my previous post were still coming in, and I wanted to share that discussion. Now I feel I have to postpone the discussion on race again, because there have been developments that I cannot ignore.

On the politicized and run away Supreme Court I concluded in my last post with the following observation:

When we know how a justice will rule by which party appointed him/her, then it is an extension of the party, and no longer a judicial forum.

The seriousness of the politicalization of the Supreme Court is now put into the bright spotlight by President Ronald Reagan’s Solicitor General, Charles Fried, who makes these cogent observations. To get the full import of these observations one needs to read the whole interview, which can be found here. But here are some telling quotes:

Justice John Marshall said in 1824 is that if something is within the power of Congress, Congress may exercise that power to its fullest extent. So the question is really whether this is in the power of Congress. 

Now, is it within the power of Congress? Well, the power of Congress is to regulate interstate commerce. Is health care commerce among the states? Nobody except maybe Clarence Thomas doubts that. So health care is interstate commerce. Is this a regulation of it? Yes. End of story….

The other thing is I think it’s Justice Kennedy who said this fundamentally changes the relationship of the citizen to the government. That’s an appalling piece of phony rhetoric. There is an important change between the government and the system. It was put in place in 1935, with Social Security. And it said everyone has to pay into a retirement fund, and an unemployment fund. It was done when Medicare came in the ’60s. That’s a fundamental change. But this? This is simply a rounding out in a particular area of a relation between the citizen and the government that’s been around for 70 years…. 

Politics, politics, politics. You look at the wonderful decision by Jeff Sutton, who is as much of a 24-karat gold conservative as anyone could be. He is a godfather to the Federalist Society. Look at his opinion. Or look at Larry Silberman’s opinion. I don’t understand what’s gotten into people. Well, I do I’m afraid, but it’s politics, not anything else. 

And so the Supreme Court has gone from anointing the President of the United States in Bush v. Gore, to throwing out all restraints on the influence of money in politics in Citizens United v. FEC, to deciding that Congress my not legislate anything that its Party doesn’t want.

Is this the end of Democracy, as we have known it? I hope not, but I fear that it may be.

But this is only one area where the extremity of the Tea Party-dominated Republican Party can be surmised.

The Ryan budget, which has been endorsed by Republican Congressional leaders and by the presumptive nominee, Mitt Romney, clearly tells us where they want to take the country. It is the most radical and dishonest budget ever proposed by a major party.

First unlike the first Ryan budget, which by its own figures never approached any attempt to balance the budget. “Mr. Ryan's (first) plan added (by its own claims) $6 trillion to the national debt over the next decade…” See here and here.

This new one, which passed the House with 10 Republican defections and not a single Democratic vote, does claim to balance the budget. But it is not clear when or how. I have spent hours searching the web for this information. Those discussions I have been able to find charge that the Ryan budget would add trillions to the debt. 

The only place I have been able to find an analysis is in a 98 page document put out by Ryan in PDF format, which for those who want to read all or part can be found here. The most relevant page in that document is page 75 which you can find here. It states: “The non-partisan CBO estimates that this budget will balance and begin to produce annual surpluses by 2040, and it will start paying down the national debt after that.” But this is an outright lie!!! I cannot find any CBO evaluation of this budget. Nor could they evaluate it, since the budget talks about eliminating many tax expenditures (also known as tax exemptions) but does not set forth what they are to be. How a bill can even call itself a budget, when it has no specificity on where and how money is to be raised, is a mystery. But they call it a serious budget. It says: “Relative to the President’s budget, this Budget shows more than $3 trillion in lower deficits over the next ten years.” Where does the money to be obtained from elimination of tax deduction exclusions, or exemptions to come from? Which are to be eliminated. The so-called budget doesn’t say.

What it does say are generalized claims that are not backed up by any specifics. But specifics are what the CBO and the American Public are entitled to. Where will the money from deleting tax expenditures come from. Which budget items are to be reduced and by how much, and what would the real world consequences of such cuts be? Does it provide money for our space program? What happens to future generations of people, who are not yet 55, my children and yours, my grandchildren and yours? What does it do to our infrastructure – of the needed bridge repairs to bridges that are falling down? What does it do to education? What happens to early childhood education, to Pell Grants for College students? What about Medicaid? Ryan says we can’t afford to pay for these things. Instead of raising more revenue, he says, we need to reduce revenue, to make sure that we can’t afford these things. Our present taxes are way below where they were under Ronald Reagan. Why don’t we return to the Reagan tax system? They laud Reagan, but will they adopt his level of taxation?

Let us take page 17 which you can find here. This deals with defense. Item one on this page is not controversial, but the security of the US is provided for by many factors not only by the size of the defense budget. Item two “…defense is not the driver of the debt burden.” This is kind of strange – it seems self evident that any expenditure as well as any cut in revenue adds to the debt. It is absurd to say that an expenditure, whether desirable or not, does not add to the debt. In the next paragraph he (Ryan) states the “The President … imposes nearly $500 billion in defense cuts over the next decade.” “The President imposes”? Just as Romney can’t repeal laws passed by Congress, the President can’t impose defense cuts. Congress does that. See here.

The $500 billion sequester in the Defense appropriation was provided for in the Budget Control Act of 2011, which passed the House by a vote of 269-161 with 147 Republicans voting for it. It passed the Senate by a vote of 74-26 with 55 Republicans voting for it.

The Romney/Ryan axis seeks to gut the present and the future of the United States, in order to increase the wealth of the wealthiest at the expense of everyone else. What kind of a future will we have for our economy without an educated work force, and with consumers too poor to provide the purchasing power that drives the economy. Are we going to attempt to be an export economy? But even that isn’t going to work without enlarging our ports to service the large ships that are becoming the future vessels of the world.

But how radical is the agenda. It repudiates not just Franklin Roosevelt; it repudiates past Republican Administrations. This is a whole new kettle of fish. Listen to a representative of the Cato Institute talk about past Republican Administrations. See here where you can get both the video and the transcript. 

Judy Woodruff: “(Obama) is suggesting that what Paul Ryan is suggesting is much farther right than even these other Republican presidents, what they've done."

Daniel Mitchell: "Well, that's because both Nixon and Bush were both big-government interventionists."

If these Republicans were both big-government interventionists, what about Eisenhower who built our Highway system, or for that matter Reagan who did not hesitate to increase taxes to deal with our then deficit and who saved Social Security instead of ending it for those under 55.

This Republican Party has little in common with the policies of past ones. It is a wrecking crew.

As for the claim of class warfare, is it class warfare to resist polices that would enrich the upper-upper classes at the expense of the middle classes and the poor, a trend already underway, but which the Ryan/Romney policies would expedite.

It should be remembered that the last time class was mentioned it was when Franklin Roosevelt was accused of “Being a traitor to his class.” Isn’t’ that class-warfare? But the real class warfare is the insistent demand that we keep re-distributing wealth upward.

Last, but not least, I recommend to the reader an article which appears in The New Yorker titled "Call That A Budget?" 

Comments, questions, or corrections, are welcome and will be responded to and distributed with attribution, unless the writer requests that he/she not be identified.