Dan Popp
Presumption
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By Dan Popp
June 11, 2012

It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress. — Mark Twain

Next they're going to tell us that we have to read a suspect law its Miranda rights.

I'm not a lawyer, but I've seen one on TV. And a lot of the lawyers on television sound pretty stupid. Some of them have been saying that, when a law is challenged in the Supreme Court, the esteemed justices should be biased in favor of the law. This is called "due deference to Congress," or some such. After all, our beloved legislative and executive branches would never (well, hardly ever) do aaaaaaanything unconstitutional.

If that's the case, I guess we can get rid of this bothersome judicial review thing.

During the First Great Depression, the government had to persuade the Supremes that Social Security is a really a weird kind of tax. It's definitely not a retirement program (because Congress doesn't have authority to set up a national retirement program, you see — but it does have the power to tax. So Social Security must be a tax, because the government wants to do it, and taxing is what government can do). Of course they sold it to the people, and still sell it today, as a retirement fund.

President Eisenhower had to pretend that his interstate highway program was for national defense, because back in the 50's no one saw "infrastructure" in the Constitution.

These lies show that there was a time — and not way back in the powdered-wig-and-wooden-teeth era, either — when the President and Congress did not presume that their handiwork would get the benefit of the doubt from the Judicial branch.

The particular law that we're supposed to suppose to be constitutional is Obamacare. That's the legislation of which its proponents said, "We have to pass our bill so that you can find out what is in it." The oligarchs that enacted that law couldn't have known whether it was constitutional because they hadn't read it. They didn't know and didn't care. Nancy Pelosi laughed at the quaintness of the question of constitutionality.

Why would anyone "defer" to these Defenders of the Republic?

In our legal system, people are presumed innocent. I'm guessing that's to make up for the fact that we're not omniscient. We can very seldom achieve perfect certainty about all the elements of a crime. The presumption of innocence is another way of checking the power of the state against the individual. Consistency in that principle would demand that we hold every law unconstitutional until proven otherwise.

But there's no such uncertainty when it's a piece of legislation on trial. We know what the law says, and we know what the Constitution says. It seems to me, simple layman that I am, that the burden of proof is equal on both sides to make their respective cases.

If there must be prejudice toward one side or the other, given two hundred years of ever-encroaching federal power (not to mention our recent history of utter contempt for the oath of office) it would be much more reasonable to presume guilt. Odds are that any contemporary law picked at random will be an assault on the Constitution, rather than a corollary of it.

Justice in this particular case would be to eradicate Obamacare the same way it was created: entirely, swiftly and without reading it.

© Dan Popp

 

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