The Federalist Blog

If you think fighting the Patient Protection and Affordable Care Act is a matter solely devoted to filing lawsuits you are deeply mistaken. The reason lawsuits will have little effect is because the entire judicial system is a house of cards built upon a foundation of fiction and lies the court is willing to jealousy defend even if they must continue with deceit. Justices on the court are no longer concerned with defined limited powers or original meaning behind enumerated powers anymore then they are interested in why States refused to surrender domestic concerns over to the general government.

The court has increasingly grown in modern times to concern itself only in declaring what it feels the Constitution ought to have said instead of what it was approved by the people of the States to have said.

Lawsuits against Obamacare is by no means frivolous, but because the court in the end will always choose not to disturb the great centralization of power that has been judicially created by deferring to Congress. Example: When the Civil Rights Bill of 1964 was challenged, the court held that “The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude.”

In other words, since a majority in Congress had decided discrimination was something they ought to regulate within State limits the court was not going to entertain any serious factual analysis to whether the regulation of commerce ever had anything remotely to do with intrastate discrimination. This act of judicial restraint has become a valuable defensive tool the court employs to protect the centralization of federal power within State limits.

Likewise, members of Congress will avoid the question all together by pointing to the courts past deference when the court would uphold the power of Congress to “regulate many aspects of American life” through the Commerce Clause. This deferring back-and-forth assures questions of limited powers and original meaning will go ignored by both branches.

Neither the court nor many members of Congress have any desire to defend their self-created powers publicly over anything having to do with buying and selling because they know they cannot defend such powers in any open, honest public forum where facts can be presented to dispute the courts numerous instances of ignoring historical evidence and purpose of regulating commerce.

The court would consider it a nightmare to have to defend prior commerce precedent such as “the power to regulate commerce includes the power to regulate the prices at which commodities in that commerce are dealt in and practices affecting such prices” in the face of overwhelming evidence such nonsense was never part of the practice of regulating commerce. Price control never remotely had anything to do with the regulating the exchange of trade for that was something strictly left to the exclusive legislative powers in making rules for buying and selling – something Congress does not possess intrastate. The fact is the regulation of commerce was solely to protect or encourage domestic manufactures through imposts and duties on importable articles of trade insures the court will avoid any evidentiary analysis of its meaning and constitutional purpose. (See here for a historical analysis of the regulation of commerce.)

The court will almost assuredly resort to the great defense shield of denial known as “stare decisis” as a clever way of protecting the courts own judicial malpractice from scrutiny while at the same time leaving its vast centralization of power in Congress intact. Therefore, all the lawsuits in the world challenging Congress or the courts own erroneous interpretations of the past will fail.

A better way to attack Obamacare than with lawsuits will be to confront justices of the court and members of Congress with the kind of questions that lead to the truth being revealed.

An example for such questions might be a half-page Ad in the WSJ that asks the court and Congress how did the States and other Nations regulate their commerce with each other before and after the adoption of the Constitution? Answer: The Levying of imposts and duties on “goods, wares, and merchandizes” imported.

Billboards could quote James Madison on the purpose behind the power to regulate commerce among the States as growing “out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

Alternatively, how about a television commercial that quotes Madison on the understood purpose behind regulating commerce: “The power (regulation of commerce) has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging (promote) manufactures. It is believed that not a single exception can be named.”

As these two quotes show (find more here), the regulation of commerce was never understood to embrace laws on buying or selling. If it had meant that you could bet none of the original 13 States would had ever consented to adopting the Constitution.

While such tactics might not change anything over night, it could ultimately force the court to realize their constitutional revisionism lacks critical factual analysis that allows the court to be nothing less than a judicial accessory to despotism. Maybe this could eventually lead to judicial rulings that are firmly based upon careful analysis of historical evidence and defined division of powers that truly defines our republican form of government without the false pretense.