Some of my readers are offended…

Some of my readers are offended… June 29, 2012

…about my crack concerning insta-Constitutional scholars.  Some are saying the law should be so simple that any honest citizen can comment on it with expertise.  Others accuse me of being an elitist for thinking that it’s, well, kind of ridiculous that everybody had a vast and settled take on the SCOTUS opinion within a few minutes of its release to the public.

Here’s the thing: US law is complex.  That’s why you have to go to school for several years to study it.  Law is about the right ordering of human society.  It’s therefore as complex as human society.  Complex things are complicated.  As somebody who has, for years, had to deal with the fundamentalist belief that another field of human endeavor focused on the right ordering of society–theology–can and should be “so simple that any plowboy can read the Bible and master it” I have learned long ago that such fundamentalist simplicities are romantic rubbish and, in the hands of reckless firebrands, dangerous romantic rubbish (as the 16th century bears eloquent witness).

In short, like it or not, experts exist for a reason and just because Some Guy With a Keyboard decides  to blather does not mean I have to take him seriously.  So I defer to people who know what they are talking about in matters of law and not to spouting popinjays who read a thing or two.

What amuses me is that I’m willing to bet money that the vast majority of people holding forth on the Roberts opinion have not actually read it, just as the vast majority of Protestant “experts” on Catholic teaching have never read either the Catechism or St. Thomas or anything from the Fathers beyond a few beloved scraps of quotations useful for making pre-ordained arguments.  It’s like the mysterious expertise fans of the Theology of the Body feel they have, despite the fact that I know only two people who have ever read JPII’s lectures on the Theology of the Body.  It’s like that strange emphatic certainty people have that, somewhere along the line, they must have read Darwin’s Origin of Species, despite the fact I’ve never met a soul who has.  Likewise, the impression one gets from the instant flood of opinion yesterday was that people were regurgitating…. other people’s opinions because they have not read the Court’s finding and would not know how to interpret it if they had.  That’s fine.  I haven’t read it either–and wouldn’t know how to interpret it if I had.  But then, I’m not claiming to be a lawyer and not saying that US Constitutional law is something any plowboy can glance at and pronounce upon with authority.

Sorry, but I think a huge amount being spoken about the ruling is a massive exercise in pseudoknowledge.  Non-experts repeating what other non-experts have said.  They’re welcome to spout.  It’s  a free country.  Me: I’ll be on the sidelines, cuz I ain’t a lawyer and my guesses about what it all means, plus five bucks, will get you a Starbucks.

Update:  The Onion said it all much more hilariously some years ago.

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  • Zippy

    Roberts’ opinion is self contradictory nonsense, and in my view you shouldn’t give it air cover like this, FWIW. I’ve employed lots of lawyers, though I’m not one, and I pretty much always find things in contract and law that they miss. I don’t find this one all that hard to understand.

    Throwing a blanket of epistemic fog over a subject is – as we’ve discussed in the past on other matters – a form of providing support. By firing up the fog machine you are materially supporting Roberts and his decision. In my view you shouldn’t do that.

    • Mark Shea

      I don’t think I’m giving any air cover. I’m simply remarking on the fact that I am largely ignorant of the complexities and legalities being argued here. Could be this was diabolically clever work by Roberts. Could be that conservatives are telling themselves comforting lies in the face of a crushing defeat. Hard for me to tell cuz I’m not a lawyer and I have no clue how this will play out in the real world. Might be that Caesar will now be able to tax us into eating our broccoli. Might be that this puts the whole ACA up for a vote by We the People. I’m not a lawyer and can’t tell. I’m just a guy reading pundits who are saying a lot of crap, much of which I don’t fully understand. What I do think interesting is that libs are sounding the klaxons that not all is well for them with this seeming victory. So we’ll see. Meanwhile, the issue *I* care about is the HHS mandate, which is still in the ether.

      • Speaking to no one in particular… (whistling)…

        One of the wisest things a person can do is to borrow a piece of wisdom from Socrates, and say “I don’t know” when they don’t know. The fun part of the Socratic dialogs is the tearing apart of pseudoknowledge. Just as the righteous pharisee can’t repent from his sins, it’s hard to teach people when they already know.

        • Zippy

          A mind can be so closed that nothing can get in; but it can also be so open that it is incapable of containing anything. Yadda yadda yadda.

          • Borrowing from Chesterton, an open mind like open mouth is meant to close on something solid.

            Minds are meant to be fed. 🙂

      • I was one of the guys sitting on the live blog run by the experts, the scotusblog people. They gave enough of a sketch to figure out that this was bogus within 10 minutes. I got the link from them, downloaded and printed the decision and have been working my way through it since. Chief Justice Roberts has been too cute by half and it became clear early one when
        1. He declared something a tax but not a tax in the same decision (the “penalty” is not a tax for the purpose of the anti-injunction act but is one for constitutional purposes). That only works if the anti-injunction act is not moored in the same constitution. But of course, it is so the distinction is fatuous and the whole decision is rendered invalid right there. Roberts plus the lockstep lefty block are careful not to look too closely.
        2. Roberts involved himself in electoral politics more than any SC justice in my lifetime with this decision. He threw a hanging curveball perfect to be knocked right out of the park by the GOP in the fall elections. Now I happen to like the GOP against the Dems this cycle so it serves my personal political preferences quite well but that’s not what a SC justice is supposed to be doing.
        3. Roberts should have used a different method to respond to the Democrat party’s attempt at politically blackmailing the Court. He’s made the institution much more political (see 2 above) and that’s not good for the country.

        • Mark Shea

          That’s fine and you may be right about Robert’s hinky treatment of American law and politics. However, you have not established thereby that ACA is fundamentally incompatible with Catholic morality.

          • The ACA, as a 2000 plus page monstrosity of legislation that centralizes what should not be centralized, makes interstate what is dominantly intrastate, and privileges the large over the small is a gross violation of subsidiarity. The bishops do not seem to have addressed this yet. I can understand why the HHS mandate, as a direct threat to religious freedom, would soak up the bulk of their attention right now. The subsidiarity issues remain. Centralization is not a side effect of the ACA. It is a driving force behind just about everything in the law. Fixing the subsidiarity issues would gut the law nearly as effectively as repeal and replace.

            Respond in either thread to the subsidiarity issue and I’ll follow up here or there.

  • I think that the Constitution is really fairly easy to understand. Now the EDIFICE of law that has proliferated since the writing of the Constitution and has led us, in fact, far away in many cases from the original intent of the Constitution….THAT is complicated! It’s complicated to maintain a pretense. The truth is usually fairly simple.

    • Molly

      If this were true, there would not be 30,000 plus protestant denominations. Truth is objective, and we believe fully revealed and therefore fully knowable. It’s not simple.

      • Well, that is true. Biases of our own always lead us away from the correct, intended meaning of the text, and that is exactly what has happened (plus some people don’t even care about the Constitution). I still maintain that the Constitution, especially if you read the debates that preceded its framing, is fairly easy to understand.

        • Molly

          As is the what many take to be the general message of salvation in the Bible: Jesus died for our sins. This doesn’t make the application of objective truth to humanity simple. I think we are in agreement for the most part. I’m just arguing that it’s possible (just possible, as I have no way of knowing) that what Roberts has ruled is — although not too complicated for a non-legal person to undersand — too complicated for a non-legal mind to understand with no other information than what little they’ve been able to see on the news or read in the blogs in the past 24 hours.

  • B.E. Ward

    We live in a culture where talk radio and cable networks offer people yelling at each other as ‘news and information’. “We report, you decide.” Combine that with the culture which encourages people to ‘tweet’ their sacred opinions, and a flair for hyperbole, and you get a recipe for first-rate pseudoknowledge.

    • Michael

      I am saddened to know that since I neither listen to talk radio nor watch the cable news networks that my pseudoknowledge must be something less than first-rate. Curses!

  • Religion Free Realist

    This kind of attitude, namely, “defer to your superiors” is why Catholic countries have been the most backward in the western world, and still are.

    The Reformation light the fuse that eventually brought us modernity and the Enlightenment, at least.

    • Cinlef

      When your mocking people as backward it is wise to avoid typos
      For example
      “The Reformation lit the fuse” not “The Reformation light the fuse”

      • Cinlef

        Ugh that ought to be “you’re” not “your” so consider my point withdrawn

        • Well, considering the fact that his name is a self-contradiction (Religion Free vs. Realist), I wasn’t expecting much….LOL

        • Linebyline

          Muphry’s Law strikes again.

    • Mark Shea
    • Marion (Mael Muire)

      I don’t know. The Reformation brought about the rise of the Absolute Monarch and state despotism, which were unknown in medieval times (the Church had acted to some extent as a check upon the power of the barons and the landlords to oppress the people, which often the barons and the landlords bitterly resented.) Those who desired to concentrate all wealth and power in their own hands at the expense of the ordinary people were sitting in the catbird seat in the aftermath of the Reformation, both in England and on the Continent. The various churches, bickering among themselves, their ability to assist the poor disastrously attenuated, incapable of wielding anything like their former influence over the minds of the magnates, whose avarice and rapacity grew apace led to catastrophic conditions for those lower on the food chain, culminating centuries later in the the sad conditions often described in Dickens’ novels, which would have horrified a medieval churchman. It was only a matter of time before a visionary like Karl Marx, sensing the desperation of the working man in capitalist post-Reformation lands, (Germany in Marx’s case) put together a blueprint for violent revolution.

      From where I sit the unchecked absolutism of the post-Reformation state ultimately led to the horrors of the twentieth century: Mao, Stalin, Hitler, Pol Pot, all of them.

      As for Catholic countries being “backward”, it all depends on your definition of backward. The Protestant countries are far wealthier than the Catholic ones – if that is your definition, then that’s one definition. In Protestant countries, the cultural emphasis is on acquiring wealth, building things, and expanding power. In Catholic countries there is a greater cultural emphasis on family, on enjoying life, on sharing what one has – however much or little – with family, friends, and neighbors. Some call that backward; I call it humane. And speaking of which, Catholic countries’ health care systems are about caring for people instead of killing them, as those in Protestant countries tend to be (i.e., through abortion / infanticide, and euthanasia.)

      • I tip my hat to you, Marion! Great post!

      • The acquisition of wealth is the acquisition of the right to claim resources for a future project. The idea of spending on family, friends, and neighbors can be generalized as prioritizing spending now vs spending in the future. Both can be done properly vs improperly in both a Protestant and a Catholic context. Neither is inherently superior to the other. It depends on context. For instance now the Catholic countries of Europe have disproportionate representation among the PIIGS group. This has been an improper, and I would say immoral, overspending on now items to the detriment of future spending, or in other words these countries have spent their seed corn and more.

        • Marion (Mael Muire)

          The earlier comment was about “backwardness” of Catholic vs. Protestant countries. I don’t think the earlier commenter would choose overspending per se, as a good indicator of “backwardness”; and I certainly wouldn’t; if it were, the United States would be ranked among the world’s most backward economies.

          My point was that there exists a trade-off, a zero-sum relationship between choosing to relax and enjoy the company of family and friends vs. producing / acquiring more, more, more wealth. It is certainly possible to do both in a balanced way; I think the culture of most Protestant countries tends to emphasize the wealth acquisition at the expense of time together in distinction to Catholic countries. Obviously, it’s important to do both in balance.

          • A decade ago I had greeks and spaniards express incomprehension as I told them the sweet life they had would be at the cost of their children’s impoverishment. Now the impoverishment has come. Yes, overspending your country into the poor house so that the old kill themselves in despair and parents abandon their children on the streets, that’s backwards. Some of us could see it a mile away. It’s a pity that the Church did not deploy itself to combat the disaster to come in time, though no doubt it had a sharp word or two about how the attitude manifested itself directly in terms of abortion.

            Wealth these days is generally not held idle. You put it to work as investment either directly or through a financial institution. Acquisition of wealth is generally recycling wealth into increasing the next round of created wealth. So long as the ever increasing rounds of investment income are appropriately channeled in a christian life (including helping the poor and sick) it is a laudable life without the faintest whiff of avarice.

  • Zippy

    Well, I told you my view, and your comment doesn’t change it.

    Meanwhile, the issue *I* care about is the HHS mandate, which is still in the ether.

    You do realize that the HHS mandate is asserted under powers granted by the ACA, and that had the ACA gone down the mandate would have gone down with it, right? If the HHS mandate (and all sorts of other things on the horizon like it) are your concern, you should consider aiming that pistol at something besides your foot.

    • Tim

      You do realize that the HHS was not in front of the Court and that the Court cannot decide questions not before it. And there may be hope for overturning the HHS mandate reading the dissent from Justice Ginsburg:

      “A mandate to purchase a particular product would be unconstitutional if, for example, the edict impermissibly abridged the freedom of speech, inter­fered with the free exercise of religion, or infringed on a liberty interest protected by the Due Process Clause.”

      • Zippy

        The HHS mandate was just in front of the court, in the form of the ACA in its entiriety. Sure, it is possible that it will be struck down on other grounds. But why deny the manifest fact that the fight against the HHS mandate was just handed a defeat by Roberts?

        • Tim

          No, it was not in front of the Court. The questions before the Court were whether Congress had the power to pass the individual mandate and if not whether that provision could be severed from the entire bill (also something about Medicaid or Medicare).

          The Court didn’t deem everything in that monstrosity known as Obamacare as Constitutional, only that Congress had the power to pass the individual mandate under its Taxing Power.

          • The dissent deemed the whole law unconstitutional including the HHS mandate due to non-severability (as the passed version did not include the severability clause originally passed in only one house). That had 4 votes. Current speculation is that it had 5, was written by Roberts, who then proceeded to flip and then wrote the majority opinion as well. the remaining 4 justices left most of it in place and left the thing unsigned (which normally would be a little strange).

            • Tim in Cleveland

              The joint dissent would have held that the rest of the Act could not be severed from the unconstitutional provision. That’s not the same as holding every provision in the ACA is unconstitutional. Only the individual mandate (and the Medicare/Medicaid expansion) were in front of the Court. Rather, the other provisions would be “invalidated” because the unconstitutional provision is so central to the rest of the Act.

              Had the joint dissent been the majority, it would have said nothing about the constitutionality of the HHS mandate, just that it was invalid because tied to an unconstitutional provision that was too important to sever.

              • No striking down of an entire law as unconstitutional holds that all of its provisions are unconstitutional. That’s just not the way US constitutional law works. That’s not how the world works either.
                At the phase of trying to get something declared unconstitutional, the odds are pretty well stacked against you. If you can knock a provision back to start in the legislative process you have leveled the political playing field with the additional bonus that the Church is now warned that this is an option and Her advocates will be keeping watch to ensure that this doesn’t happen again. It would have been a big win if it had happened.

                • Tim in Cleveland

                  Not every provision of the ACA was before the court so it couldn’t hold every provision to be unconstitutional. At oral argument, Scalia scoffed at reading the entire bill (he made a joke about the 8th Amendment).

                  If the joint dissenters had won, Congress would be able to pass a bill similar to the ACA just without the individual mandate and the Medicare/Medicaid provision.

                  The Supreme Court declaring something unconstitutional has a technical meaning. Maybe you are using “unconstitutional” in a more colloquial sense in which case I would agree with your broader interpretation that an entire Act is unconstitutional.

                  You seem to be agreeing with me in your second to last sentence though. Had the ACA been struck down, the Church would still have had to watch for another HHS mandate since the Court never said anything about that.

        • Zippy is right that the HHS mandate would have been automatically struck down, had the whole ACA been struck down.

          Tim and Mark are right that the HHS mandate and the specific First Amendment argument was not specifically placed before the court.

          It is possible that the ACA is structurally a permissible law in light of the Constitution (and the Supreme Court has decided that it is), even if the actual implimentation of the law (e.g., the HHS mandate) is not legal under the Constitution (which is a question yet to be decided by the courts).

          In other words, while yesterday’s decision may be a kind of defeat, it is not the end of the fight or debate on the religious and moral liberty front.

          Some are even claiming victory on the Commerce Clause front.

          As for me, like Mark, I’m no lawyer nor even a Constitution buff. I’m a straight-up equal opportunity cynic. I figure that no matter what the court had decided, something bad would have come from it.

          • Zippy

            Technically there is never an “end” to political struggles. But Roberts handed a big defeat to opponents of the HHS mandate, and genuine opponents of the HHS mandate ought to just bloody admit it.

            • Tim

              Roberts (the Supreme Court really) didn’t had anything down about the HHS mandate. Even if the Court had said ACA was unconstitutional, it would have been on the grounds that the individual mandate exceeded Congress’ Commerce Power. That wouldn’t mean everything else in the ACA was unconstitutional as well.

              Unless the Court rules that the HHS mandate violates the First Amendment, Congress or the President will always have an option to pass or administer something like the HHS mandate. The President has shown he is willing to pass such a thing.

              So even if the ACA were struck down entirely, that would not necessarily have meant the end of the HHS mandate.

              • Zippy

                So even if the ACA were struck down entirely, that would not necessarily have meant the end of the HHS mandate.

                Nothing barring the Parousia “necessarily” means the permanent end of the possibility of new and different things like the HHS mandate. But striking down the ACA would have in fact meant the actual end of the actual HHS mandate. You seem deeply invested in denying that manifest objective fact, though, so I’ll leave you to your solipsism.

                • Tim

                  The objective fact is that the Supreme Court would not have ruled whether forcing religious employees to pay for insurance covering services to which they have moral objections no matter how it ruled yesterday. The ACA doesn’t have to be the only means of achieving that end, unless such an end is unconstitutional.

                  President Obama has demonstrated a willingness to so coerce religious employers and many have supported that coercion. Striking down the ACA would have offered only temporary relief.

                  So while it would have meant the end of the HHS mandate, the specter of a new HHS mandate would always be on the periphery.

                  Personally, I prefer that the Supreme Court hold explicitly that the HHS mandate violates the First Amendment rather than having the temporary relief you and others hoped for from yesterday’s decision.

                  • Zippy

                    Yes, I get what you are saying, and got it from the very beginning. Striking down the ACA would have meant the end of the actual HHS mandate, but not the permanent end of the future possibility of something else like the HHS mandate. And nothing that any legislative body or court does will ever mean the permanent end of the future possibility of something like the HHS mandate, because politics does not offer anything permanent, ever.

                    To which I say “Big Freaking Deal”.

                    Roberts dealt all genuine opponents of the (actual) HHS mandate a defeat. If you are incapable of admitting that, I have a hard time believing that you are actually opposed to the HHS mandate, at least at the cost of the defeat of the entire ACA. Maybe you see the ACA as too important a baby to throw out with the HHS mandate bathwater: I don’t know, can only speculate as to what psychology drives your incessant denial, and at any rate find such speculation tiresome and unproductive.

                    But for actual opponents of the actual HHS mandate Roberts’ decision was a defeat, no matter how much stamping-of-tiny-feet there is trying to pretend the contrary.

                    • Tim

                      I don’t think you do realize what I’m saying. You seem to be more concerned with striking down Obamacare than getting rid of the HHS mandate.

                    • The Deuce

                      Tim, this isn’t complicated. The HHS mandate and the power that grants it are part of Obamacare. Striking down Obamacare would have therefore struck down the mandate. This is basic undeniable logic. I’d expect anyone of good faith on this issue to at least acknowledge that before offering further argument on the matter.

                    • Chris

                      Agree 100% Zippy. The problem that most people are overlooking is this: Anton Scalia has already said that the Court has no interest in going through the Law line-by-line to determine what is and what isn’t constitutional. That was a good gambit at the time, because it signaled that this would likely be an all-or-none decision. With the vast majority of “experts” believing that the Individual Mandate didn’t stand a chance, it became almost certain that ACA would be completely thrown out — and it almost was.

                      Here’s the downside — and this is what the “silver lining” cloud is not registering: SCOTUS may not even elect to HEAR a challenge to HHS (which is within the ACA powers), because by doing so, that would signal a willingness to hear a challenge to this monstrosity, piece-by-piece. And I think it would be an EXTRAORDINARY flip-flop if Roberts were to open up that Pandora’s Box after just throwing it back to the electorate (or as Lizzy Scalia likes to say, “telling the people to grow up”). Roberts washed his hands like Pontius Pilate and said, “you decide”. I find it quite possible, that once the HHS Mandate is filed with SCOTUS (after it gets upheld by whichever Circuit Court ends up with it), it might be difficult to get the four votes needed to actually hear it. It might seem obvious that Alito, Thomas, Scalia, and Kennedy would vote “yes”, but there are bigger ramifications than just HHS…

      • If the unsigned dissent had a fifth vote, the HHS mandate would have gone down the tubes. None of the other opinions (there were a few) would have had any effect on the HHS mandate. Neither the Roberts opinion, nor the Ginsburg concurrence would have done the trick. In terms of specific results, the HHS mandate could have died. It was one vote shy of that result. Catholics should not be indifferent.

    • Mark Shea

      Of course. However, I’ve never regarded the ACA as the unmitigated evil that some do. Nor have the bishops.

      • Zippy

        I have come to believe that you and they are wrong in that assessment, FWIW. The ACA is unmitigated evil, and the bishops who have expressed regret at ever having supported it in the first place are right. The rest of you need to put the gun away, or at least stop pointing it at our collective foot.

        • Mark Shea

          Okay. You might be right, for all I know. We’re talking about a prudential judgment in which lots of people have a lot more expertise than I do.

        • Ted Seeber

          So, being non-discriminatory in health care is an unmitigated evil? Better tell that to the Samaritan in Christ’s parable!

          • Mark Shea

            What? Where did you get that from? Don’t put words in Zippy’s mouth.

            • Ted Seeber

              Zippy claimed that all of the ACA was an unmitigated evil. Well, the original purpose of the ACA was to end discrimination against people with pre-existing conditions. It is my hope that is NOT an unmitigated evil, and that in fact, in the end, that aspect (discrimination against people with pre-existing condidtions) still stands and is enforced.

              My point is that the ACA is an extremely complex law- with some good and some evil points- and people shouldn’t generalize without considering the effects of their generalization.

              • Zippy

                the original purpose of the ACA was to end discrimination against people with pre-existing conditions.

                That is at best a wildly gross simplification, and in fact is simply false. Someone(s) somewhere argued that “the” purpose of the legislation was X. Someone else – me – claims that the legislation is unmitigated evil. It does not therefore follow that I assert not-X.

                End of lesson in basic logic.

          • The Samaritan paid for the waylaid traveler’s health care. The ACA does not achieve that result.

    • Ted Seeber

      The individual mandate is administered by the IRS. The HHS mandate is administered by the individual companies, under regulation from gasp, the HHS.

      The Roberts Decision on the Individual Mandate, actually provides precedent for striking down the HHS Mandate, because the HHS Mandate is a premium charged under interstate commerce regulations by the insurance companies themselves, NOT A TAX PASSED BY CONGRESS.

      Or at least, that’s how I, just a lone autistic reading at 1500 WPM, read it.

      • Tim

        The Supreme Court held long ago that insurance transactions are “commerce” within the meaning of the Commerce Clause and the federal government has authority to regulate it. United States v. South-Eastern Underwriters Association, 322 U.S. 533. However, soon after that decision, Congress passed legislation that returned regulatory authority to the states (The McCarran-Ferguson Act).

        So Congress does have Constitutional authority to regulate what insurers provide. I don’t how it would work under the legislation though.

    • Molly

      You do realize that if the HHS mandate had been by default thrown out with the ACA (I’m still gonna call it Obamacare) that the ideas within it are still alive and well and able to pop up anywhere else. Bringing it specifically before SCOTUS is addressing it head on. It might not go in our favor, but if it does, it is a definitive ruling on this kind of religious persecution. We were going to have to risk it sometime, it’s just that it wasn’t put off by the overturning of the ACA in it’s entirety.

      • Tim

        Some people are more concerned about getting rid of Obamacare and use the HHS mandate as a way to convince others that the whole thing should go. Hopefully that’s just me being cynical, but it makes me wonder if support of the cases filed by the dioceses across the United States will have the same support after this decision.

        • Tim, this is also known as coalition building and generally is how successful politics works in this country. People who want the whole ACA out and to start over are the allies of those who want HHS mandate out.

          • Tim in Cleveland

            Yes, and overturning the ACA is now in the political realm. I have no problem if people want to cite the HHS mandate in advocating repealing the ACA.

            The Supreme Court made its decision and it’s no use despairing over the legitimacy of the Court. The legal fight over the HHS mandate, however, is just beginning and I think that if all the combox Constitutional scholars are truly concerned about overturning the HHS mandate, they should focus on the First Amendment arguments against that mandate and not complain over the Court’s decision over the individual mandate.

            Roberts can’t change his vote back (assuming he changed it in the first place) so I see no point in decrying NFIB v. Sebilius.

            • The entire government has lost legitimacy with the ACA. That’s something that a US citizen should be worried about. The Congress lost legitimacy when it became clear that a majority of them hadn’t even read the bill before passage, a bill that reworked a huge part of the economy and, it turns out, makes health care more expensive in the real world. It turns out that 4 justices of the SC were so disgusted with Roberts and his incoherent reasoning that they actually refused to cite and deal with his opinion at all. That’s shocking behavior and something that I’ve never heard of having happened before even in lousy cases like Dredd Scott. And the Presidency is currently basking in its win while defying the Court on its definition of tax vs penalty in a manner that is more reminiscent of Andrew Jackson rather than any modern presidency. So whistle past the graveyard all you want, we’re smack in the middle of a constitutional crisis on NFIB v Sebilius.

        • Molly

          I get what you’re saying, but there is still the prospect of getting rid of the ACA through legislation. Even if there is that distinction hopefully the “alliance” will still prove useful to both?

  • Mark

    I have to say I am disappointed by the attitude that you are describing.

    I agree with your point that the law is “complex” and there is value in the expertise of those who understand the complexities.

    However, being a part of democracy is keeping informed of what is happening and making decisions. To wash your hands of these events and look down on those who work to understand, discuss, and inform with other citizens is not particularly virtuous. The mechanism that allows the healthcare law to stand is the same mechanism that said laws against abortion are wrong. For those of us trying to protect human life, the mechanism of how that occurs is very important. You choosing to look the other way may make your mind rest easy, but it is no virtue.

    By the way, does this apply to other aspects of government? War is complex so leave it to generals to decide whether we go to war? Contraception is “complex” so leave it the HHS to decide what to do with it?

    • Michael

      Torture is far too nuanced of an issue for any of us to have a meaningful an opinion on it.

      • Mark Shea

        I’m as big a fan of the tu quoque as the next guy. But “IknowyouarebutwhatamI” in a Pee Wee Herman voice is not a really skilled use of this venerable form of argument.

  • In fairness to your point about complexity and study Mark, please give yourself some more credit. The Law in general in all of its subjects is certainly hard. Different branches of law require different ways of approaching a problem. That’s why a law student spends so much time. But particular areas of the law don’t necessarily require a lot of years of study to understand. Human interactions are simple enough (despite their complexity) that common sense allows normal discourse to tease out understanding. We simply pay lawyers because you and I don’t want to spend the time thinking about these things and care not to make errors. That said: constitutional law is not complex. It really isn’t. It’s just constitutional lawyers that make it complex. The constitution really is just a few pages. That’s the simple part. Learning how to live and to apply a charitable measure out in the world, that indeed is the hard part. But I’d rather leave that to the lovers and mothers than the lawyers. As Shakespeare once said….

  • Tim

    I really don’t understand the outrage over this decision. Many conservative commentators I read leading up to the decision believed that the act would be upheld, so this decision shouldn’t be a surprise. This isn’t a case like Roe v. Wade where the Court took a controversial issue out of the hands of the public. The ACA was passed by elected representatives (unfortunately).

    The over dramatic criticism from conservatives after the opinion was handed down is almost as silly as the over dramatic criticism from liberals before the decision was handed down… but at least conservatives are criticizing an actual opinion (assuming they read the opinion).

    • The cute maneuver with calling something not a tax so it can be adjudicated and then a tax so it can be declared constitutional sticks in my craw. Roberts has been pushed hard by the Dems with threats that they would delegitimize the court. He just pushed back by politicizing the court and throwing the election to the GOP. I hope that the GOP wins but I don’t like what Roberts did.

      • Tim

        The Supreme Court has done that with penalties before (i.e. calling a “tax” a “penalty”). Of course, as the joint dissenters say, it has never called a “penalty” a “tax” for purposes of Congress’ Taxing Power.

        I can’t say I was very convinced by Roberts’ characterization, but I don’t think it’s worth being outraged over. The sad fact is the ACA was passed by our elected representatives and I’m never comfortable with courts overturning legislation, no matter how bad, unless there is a clear reason. Honestly, I did not find the Commerce Clause “activity/non-activity” distinction very convincing either (though there is some common sense to it… but not precedent).

        I can’t say I like what Roberts’ did either, but I can only speculate that it was political. And it wouldn’t be the first time the Court acted politically (e.g. Brown v. Board of Education… one of many).

        If you ask me, conservatives need to stop complaining and find some other way to overturn Obamacare.

        • The Obama administration disagrees as it sent the Press Secretary to make clear that it does not accept the Supreme Court’s ruling on this point. That’s really strange, an Andrew Jackson level of resistence when the President won his case.

  • In defense of Mark, St. Thomas observes (in SG I, 3) that “it would be the height of folly for an idiot to assert that what a philosopher proposes is false on the ground that he himself cannot understand it.”

    • Zippy

      Maybe those who claim not to know ought to just defer to those of us who actually do know. Continuing to insist “but I don’t know” in a megaphone is, as I mentioned, a way of deploying the fog machine. It isn’t a refusal to take sides, any more than “gee, just what is ‘torture’ anyway” is a refusal to take sides in the torture debate.

      • Tim

        I’m skeptical that those who claim they know really do know anything.

      • Mark Shea

        If the Magisterium had given me some sort of touchstone to go on like “The ACA is intrinisically immoral” I’d be more sure of myself here. But in fact, I’m befogged because, for non-lawyerly me, the issue is foggy. As I say, it could be that Roberts was a genius like some people are arguing. Could be that Roberts totally screwed us (as, for instance, it appears “Citizens United” screwed us). I’m the guy who has no problem with the proposition that “Our Ruling Class vs. the rest of us” has the most explanatory power for the actions of the government and the oligarchy. But the fact remains that I don’t *know* that defering to you constitutes defering to ‘those of us who actually know”. And I emphatically don’t see how acknowledging my ignorance is taking sides. Indeed, I’m not even clear what the sides are.

        • The Deuce

          Mark, even if Roberts is a genius who performed the Greatest Machiavellian Head Fake Of All Time, he still employed lousy sophistry and torture of language to do it, and you should therefore oppose it for the same reason you oppose Lying For Jesus.

      • “Continuing to insist ‘but I don’t know’ in a megaphone is, as I mentioned, a way of deploying the fog machine.”

        I don’t agree. There is a difference between “I don’t know” and “who can say?”

        I also think the ACA functions largely as a Macguffin in these last two posts, to get to Mark’s real point that a lot of people who give instant opinions aren’t giving their own opinions, but merely repeating someone else’s — although it may be the case, as several have argued, that more people than Mark might suppose actually do know what they’re talking about.

  • The Deuce

    Mark, let me ask you a hypothetical: Do you think there is *any* circumstance under which people who aren’t experts of Constitutional law might justifiably say that the Supreme Court has violated their Constitutional rights and engaged in rank sophistry to achieve its desired end rather than faithfully interpret the law?

    How about Roe v Wade? Do you agree that “finding” a right to abortion in the Constitution was a contemptible case of judicial invention? Does a person have to know the entire text of Roe v Wade and have substantial legal training to know that? Do I have to be a legal scholar to know that verbal flatulence about “emanations and penumbras” in Griswold v. Connecticut is, in fact, post-modernist verbal flatulence?

    You agree that the HHS mandate is an un-Constitutional assault on religious liberty, correct? How many legal experts did you consult before concluding the obvious? Did you read the full text of the mandate before getting upset about it?

    Certain facts are not in dispute about the ruling in this case: namely, that the Court decided that the Obamacare mandate is an un-Constitutional violation of rights under the Commerce Clause, but that it is okay as a tax, and that they then retroactively decided to “reinterpret” the law to make the mandate a tax, even though it was specifically passed as *not* a tax. Conservatives are mostly angry about these facts, and liberals mostly don’t care because it lets them do what they want. Do I need to be an expert in Constitutional law to recognize obvious torture of logic here? How many years of training to I have to have before I’m allowed to notice the logical implications of a federal taxing power that can circumvent Constitutional rights,without even having to call it a tax? And how is this case different from those other ones?

    • Mark Shea

      I already say that people can say whatever they like about this and any other decision. They might even, for all I know, know what they are talking about on occasion. I simply point out that the instantaneous self-granting of Ph.D’s in Constitutional law that occurs to thousands of Americans after each court case they dislike is worth the paper that internet screeds are printed on, as a general rule.

      • The Deuce

        Okay, but how come you didn’t make a crack about all the “instant Constitutional scholars” who, along with you, said that the HHS mandate is an egregious violation of Constitutionally protected religious liberties? Are they any better Constitutional experts than the people taking a position on this? Are you?

      • Chris

        “I simply point out that the instantaneous self-granting of Ph.D’s in Constitutional law that occurs to thousands of Americans after each court case they dislike is worth the paper that internet screeds are printed on, as a general rule.”

        And yet every American grants himself a Ph.D in Political Science when he enters the voting booth. The very foundation of our government is based in non-experts (heck a bona fide imbecile has the right to vote) making critical decisions at the polls. I think the reason we’ve all become “experts” on this is that we are responding to the fact that the real experts at SCOTUS decided they didn’t really want to be experts, after all, on the most important matter before the courts this century (more important than Bush/Gore). But now I just granted myself a PhD in Psychology. So I’ll just leave it at that.

  • Ted Seeber

    Make that three. I’ve read all the Theology of the Body lectures on the Vatican’s website. I have *NEVER* read the Christopher West commentary on same, nor any other commenter, however, and I think that has a tendency to mean I’ve come up with my own private interpretation.

    Then again, I’ve also actually read Evangelium Vitae and note that starving to death is an equal life issue to being aborted from the victim’s point of view. Which is something I’d say about 62% of pro-life Catholics that I’ve run into don’t seem to comprehend.

    • Woo hoo! I’ve also read the whole series of lectures – in the older translation, on dead trees. Years ago. Didn’t entirely understand it even then. Don’t pretend to now, though I would like to revisit it when I have the chance, and now that I have a copy of the new translation.

    • John

      And make that ONE! Completely irrelevant to the main point, but I DID listen to On the Origin of Species on tape in my car in around 1990 (it may have been abridged, but I gave it a solid 6 hours or so in the car. Made me feel like I was falling behind in the Amazing Race of life. Makes you want to go grab some beer and get a manly pick-up truck and find you a woman.

  • On the other hand, it seems to me that one of the benefits of the American culture is that ordinary people are not cowed by experts. Americans talk about religion and politics, and so in that sense, I appreciate that they’re involved. I wouldn’t necessarily knock them for their enthusiasm.

    • Mark Shea

      I agree. One of the healthy things about American culture is its wariness of experts. On the other hand, one of the reasons American culture is a hatchery for cranks and kooks is its wariness of experts.

  • LOL. Mark, you’ve got to learn the difference between “offended” and “irked.”

    Throughout history, societies in decline are marked by nebulous, contradictory and hugely complex legal codes that can only be deciphered by members of the anointed elite. By contrast, periods of reform are marked by consolidation and simplification of such codes so that practically anyone can understand the laws that are meant to govern how they live. In general, when the law is too complex, it means the state is attempting to regulate people’s lives to too great an extent.

    • Ted Seeber

      I don’t know about that. The simplest legal code I’ve ever heard of is the absolute monarch in Alice in Wonderland. Whoever offends the Queen Of Hearts, off with their head! A very simple code, very easy to understand, that provides for the absolute micromanagement of all life within the sound of the queen’s bullhorn.

    • Molly

      Thus said the leaders of the Reformation.

  • Sherry Weddell

    This is just my experience but as I grow in my real life knowledge of the narrow areas of my true expertise, I become more and more aware of what I don’t know in other areas and it makes me less likely to expound thereon – and even less likely to have an strong opinion on the topic because I know that a little research on the internet or reading a book hardly qualifies. If the Church has expounded dogmatically on the issue, that gives me trustworthy guidelines. If she hasn’t, I may not know enough and have time enough to form a prudential judgement on X- even when the subject is extremely important.

    There’s nothing like spending years becoming a genuine expert in something (cooking, one small corner of history or theology or science, etc.) to make you ever clearer about what you really don’t know. That’s why genuine expertise is recognized by the Church as a real factor in forming prudential judgements and why the secular competence of the laity in specific areas is acknowledged to be so important in the Church’s overall mission of evangelization.

  • I have listened to the political and constitutional experts. I have read numerous articles. I have watched the news. It is now my learned opinion that I have no idea what the decision means other than I still have a job being the supervisor of the mail in application Medi Cal unit in a California County. Seriously, as a Catholic? Here is what I know – sometimes I like a decision and sometimes I don’t but no matter WHAT, I trust Jesus.

  • Observer

    Roberts, most contrary to expectations of most conservatives, really acted conservative. Afterall, an interpretation of U.S. Constitutiona Law is what happened under a neutral non-political view. As a side, I’m not a lawyer, nor are all conservatives, nor all liberals, nor all politically aligned persons. Yet, as another disappointing fact, Roberts actually did the very thing a lot of constituents, who vote republican, hoped for. That is, he went along the lines of a very conservative (politically neutral) reason of law. Simply, taxes are considered constitutional. And in particular, ACA’s penalty perfectly aligns under an act of taxation. However, quite opposite to strong anticipation, Roberts’ judgement err’d precisely upon the development of remaining neutral (what’s now called conservatism.)

    Contrary to a neutral interpretation, Constituional law does not mean indifference to concerns for the common good and overall welfare of the public (read the Pre-Amble.) Meaning, if such a tax is unfit and cannot be met by people who don’t have enough income or for whatever reasons, then you have an apparent law which may be exercised quite maliciously and run afoul to what is outlined and ordered with regard to the Pre Amble, Articles for Balance of Powers, and Respect to God’s endowed, inalienable, and self-evidents rights in the Amendments of the Constitution (Bill of Rights.) And that’s where the bill hit (where conservatives hurt). Namely, ACA was a bill crafted to work with, penetrate, pass undetected, and go unchecked, if you will, through the very failure of modern conservativism (as it stands today.) Worse as a historical incident, you have what amounts to be a modern Torjan horse given as a gift for the welfare and common good of the public.

  • Will

    I do not claim to be a constitutional expert. I defer to the lawyers. I do not claim to be a climate scientist. I defer to the scientists.

  • Anthony

    If the law must be so complex that an ordinary person cannot be expected to understand it then ignorance must be a valid defense. However ignorance is not a valid defense, therefore the system is unjust.

  • It is true that the American system of law is complex and requires interpretation, and that is the proper function of the Supreme Court.

    That said, I would offer the obvious counter that the court does not have any charism to give a true or even just interpretation of the Constitution. As proof of this, I hope, should come readily (Roe vrs. Wade, anyone?) come to (Dred Scott) mind (Kelo vrs. City of New London).

  • I am a lawyer, I’ve study Constitutional law, and I can cite the major cases in the precedents for this. My scholarly and legal opinion is the same as that of a well informed layman, namely, that the Taxation clause allows for taxes in proportion to the census, for excise taxes, and, with the help of the Sixteenth Amendment, for income taxes.
    The Affordable Health Care Act is none of those. If it is a tax, it is a tax of a species that the Congress does not have the power to impose.
    If it were a tax, a law called the Anti-Injunction Act would prevent the case being heard before any tax has been levied. Hence, the High Court calls it a tax and calls it not a tax.
    Justice Roberts correctly strikes down the health care Act as being impermissible under the Commerce Clause and under the General Welfare Clause, but upholds it under the Taxing Clause, even though nothing in the language of the bill calls the penalty levied for nonperformance a tax.

    So, yes, I read the opinion, and yes, the law is a complicated matter for experts, and no, my friend Mark, you are mistaken in your assessment here, because any average layman can read and understand what utter nonsense the Supreme Court has just announced.
    It is a logical contradiction that any average man of average education can see and comment upon.
    There are holdings in the law which are complex and esoteric: this is not one of them.
    It is bad law. Anyone can see that.
    John C Wright

    • Tim in Cleveland

      I enjoyed the joint dissent’s characterization of the Anti-injunction Act “not a tax but is a tax” argument as “verbal wizardry” treading “deep into the forbidden land of sophists”.