Friday, June 29, 2012


The Commerce Clause gives the Congress the power
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
Ronald Dworkin, with Justice Ginsburg concurring, argues that there is no constitutional limit to the state's power to regulate but rather political and practical limits only. The state in its regulation of commerce can only do what it can get away with.

David Brooks, who really is a horrid excuse for a man, praises Roberts' intellectually dishonest decision to support ACA on the wrong grounds as a shining example of "Burkean minimalism and self-control." It really isn't. This is something that Brooks must know as he accepts that the Roberts decision is a radical change in understanding of the scope and meaning of the CC as developed in Supreme Court decision. He argues that
[o]ver the years, the commerce clause in the Constitution has been distorted beyond recognition, giving Congress power to regulate all manner of activity (or inactivity). Roberts redefined the commerce clause in a way that limits the power of Washington. Congress is now going to have to be very careful when it tries to use the tax code and other measures to delve into areas that have, until now, been beyond its domain.
What is odd here is that the CC gives the state the power to regulate commerce, which meant and means much more than economic activity, and over the years the Courts have found that the state has the ability to regulate commerce under a clause designed to  give the state the power to regulate commerce. How is it Burkean  minimalism or humility to radically redefine a Constitutional clauses meaning?

What Brooks here seems to mean is that yes the radical wing of the Republican Party and its judicial enablers are one step closer to overturning the 20th century and returning the us to the 19th century.  What is odd here is the extent to which Brooks' notion of minimalism and humility are really stalking horses for radical reaction designed to ensure that the rich rule and poors suffer. I suspect, but do not know, that Brooks secretly endorses Tyler Cowen's argument that
[w]e need to accept the principle that sometimes poor people will die just because they are poor. 
For the nonp-Burkeans amongst the nonsocipathic segment of society, the fact that  radically unequal societies necessarily cause unnecessary deaths among the least amongst us is a sad reality. For Cowen it is a principle and this case it seems he means principle to function as a natural law.

Brooks pretends that an unelected official curtailing an enumerated power is not an example of judicial overreach; Cowen pretends that the results of human created misery and inequality are natural and, consequently, just. Both men are either liars or deluded and both are horrid little men.


  1. The right wing desperately wants to believe that Roberts is playing five dimensional chess, my guess is that he ruled the way big business wanted him to rule, and most of the genius of John Roberts, like so many elites is a myth.

    One thing that might change the direction of the court is how nasty conservatives get towards Mr Roberts, my sense is that he is a very petty man and might change his entire philosophy just to get even with people that hurt his feelings. The next few years might be kind of interesting on the supreme court.

  2. I don't know about the big business angle right now. I would have agreed a couple of months ago but reading around a bit it starts to look to me like ACA might be the one example of right-wing idea that wasn't totally nuts and because the center-left is going to implement it that means the incompetent bastards won't be able to screw that up.

    As to Justice Roberts and the Right you are almost assuredly right. Whether he is petty or no the nonstop insults and vilification headed his way is going to be more than enough to not merely embitter the man but cause him to rethink he world view.

  3. This may not be true but the MA experience suggests that mandates work.