Friday, June 29, 2012

Rand Paul gets it wrong (again)

Senator Rand Paul is still a freshman senator, but sometimes it seems like he hasn't actually taken the time to understand some of the points about his job. To wit, in a recent interview over the upholding of the Affordable Care Act (ACA, aka "Obamacare"), Rand Paul said the following:
“Just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so. The whole thing remains unconstitutional.”
True: Mr. Paul could well have had a slip of the tongue. He might have meant, "I disagree with the majority decision of the Supreme Court," or, "If I were a Supreme Court justice, I would have decided it the other way, based on X, Y, and Z." But he didn't say those things. He also didn't (as far as I can tell as of this writing) issue a retraction or a clarification of this statement, because "a couple of people on the Supreme Court CAN declare something 'constitutional', and THIS MAKES IT SO". Yes: even with cases that you happen to disagree with. A declaration by a majority of Supreme Court judges - by definition in the Constitution - make that declaration constitutional or unconstitutional. Again: EVEN WITH COURT CASES THAT YOU HAPPEN TO DISAGREE WITH! This is what makes the Supreme Court a REALLY RISKY venue for testing legislation that you don't like:

If SCOTUS finds the law that you don't like to be constitutional, then - guess what - you now have to follow the law; there is no legal wiggle room. I don't like the outcome of Citizens United. I think that SCOTUS decided it wrong; however it is constitutional.

I don't like the interpretation of the second amendment that basically has allowed such loose gun sales in the states that it has led to the acquisition of a whole slew of guns along the border with Mexico through effectively legal gun purchases; forcing only issuance of small arms for a well regulated militia (the bit of the second amendment that is normally forgotten by so-called "gun rights" supporters and - to a large extent - by recent SCOTUS incarnations) would likely have diminished the amount of loose firearms in the country.

In conclusion: there are some SCOTUS decisions that I agree with. These decisions are constitutional. There are some SCOTUS decisions that I disagree with. These decisions are ALSO constitutional. Why? Because, as Alexander Hamilton explained in Federalist No. 78 (which many Supreme Court justices have cited as the justification for making constitutional and unconstitutional determinations):
"A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute."
... and as Marbury v. Madison (1803) decision that ended up determining the role of SCOTUS.

Of course, Mr. Paul's statement unfortunately doesn't seem so out of touch with reality when you realize that the so-called intellectuals of the conservative right also don't think that this decision was actually, really, truly a constitutional decision (via BoingBoing):
The Court, by a 5–4 margin, refused to join all the august legal experts who insisted that of course it granted that authorization, that only yahoos and Republican partisans could possibly doubt it. It then pretended that this requirement is constitutional anyway, because it is merely an application of the taxing authority. Rarely has the maxim that the power to tax is the power to destroy been so apt, a portion of liberty being the direct object in this case.
The conclusion by the BoingBoing author (Rob Beschizza) is a good one to sum up not only his continued disillusion of the intellectual muscle of the National Review but also this post's position on Mr. Paul's apparent intellectual understanding of the facts, which is, "This is American conservatism's immune system going into anaphylactic shock. Fun to watch, while it lasts!"

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