Ellis Washington
SCOTUS: 6 despots in minister's robes
By Ellis Washington
July 1, 2015

It is emphatically the province and duty of the Judicial Department to say what the law is.

~ Chief Justice John Marshall, Marbury v. Madison (1803)

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.

~ Jefferson letter to Wm. Jarvis (1820)

When Justices go Rogue

In recently reading Nicholas Bagley's Symposium: Words still have meaning posted on the SCOTUS Blog I am struck with amazement regarding the utter unawareness of this article due no doubt to living inside the bubble of the Academy where virtually every administrator, every faculty member, every student at the University of Michigan law school (and doubtlessly the University of Michigan at-large), slavishly accepts the Progressive-Communist worldview and furthermore accepts an evolution atheist, positive law jurisprudence for interpreting all laws in America. While there may be one or two conservative jurists inside the law Academy who know better, yet they live in fear of reprisals by their Marxist colleagues who hold hegemony over the Academy. In my rebuttal essay of Professor Bagley's Symposium I will not be intimidated or silenced. I went to graduate school at U of M (1985-87) and I tested on the law review two years before being accepted into law school (1989). I want my readership to understand that not all legal scholars and academics are slaves to the Progressives, or hold legal philosophy worldview compatible with the Democrat Socialist Party.

Nicolas Bagley, an assistant professor of law at the University of Michigan Law School, wrote an interesting essay on the Court's recent opinion affirming Obamacare which was part of a larger "Symposium" where various Leftist academics from across America offered their opinions regarding Supreme Court decisions handed down during the 2015 Term. Professor Bagley's post first appeared in an op-ed in the Los Angeles Times. "With its decision in King v. Burwell, the Supreme Court handed a decisive win to the Obama administration and to the millions of people who have secured health insurance under the Affordable Care Act (ACA)," Bagley writes. One of many reasons why I criticize Professor Bagley here is because when he writes "The decision is also an enormous victory for common sense in statutory interpretation," he seems oblivious to other, viable legal theories like natural law philosophy and equally seems totally ignorant of the reality of original intent in constitutional jurisprudence which King v. Burwell majority rejected, where the Court now forces millions of people into a communist/socialist-based healthcare system in America.

Justice Machiavelli: 'The ends justify the means'

The issue of ultimate concern here is either words mean their obvious construction, or they don't; either the original intent of the constitutional Framers relevant in modern times, or it isn't. The outrageous example of legislation from the bench spewed from the Court last week in the King v. Burwell case that without reliance on judicial precedent or the U.S. Constitution, essentially mandated socialism in medicine in all 50 states. While this may make Marxists academics like Professor Bagley happy, it is indeed a tragic day for constitutional verity whenever the court violates the Separation of Powers doctrine and arrogantly legislates from the bench as the majority did in that case.

Every Justice that has ever sat on the bench had to place their hand on a Bible, the foundation of all law in America, and swear an oath – "To protect and defend the U.S. Constitution against all enemies, foreign and domestic..." But how do you protect the U.S. Constitution from the legions of enemies within including activist judges? What about Progressive-Communist jurists on the Left and the Right who have utter contempt or ignorance for either the Constitution or natural law, the original judicial philosophy of the Court based on Jefferson's "the law of Nature and of Nature's God" as well as being the original jurisprudence that established the American Republic and all of her institutions... Institutions like the church, education and morality that the political Left under Cultural Marxism is hellbent on deconstructing or destroying in America.

Bagley seemingly cares nothing of this [e.g., natural law, original intent], it doesn't even appear in his legal analysis. He follows the Progressive worldview of legal philosophy that sees the Constitution as a "living constitution" (popularized by President Woodrow Wilson, Harvard Law Professor, Lawrence Tribe), a document that must evolve to fit the needs of an ever-changing, complex modern society (as opposed to the original intent view Progressives pervert a natural law worldview to be a "dead constitution"). "The case hinged whether the residents of thirty-four states that declined to establish their own exchanges were eligible to receive health-insurance subsidies under the ACA," Bagley writes regarding the Obamacare case. "Seizing on language buried in the complex formula for calculating the subsidy amount, the plaintiffs argued that subsidies were available only for plans purchased on "an Exchange established by the State."

"Healthy people who couldn't afford to pay the full sticker price for insurance would drop their coverage, leaving sicker people behind. Insurers would then have to increase their prices to cover the health-care costs of those sick people, pushing still more healthy people to shed coverage," Bagley contends. In other words, Roberts wrote, the loss of subsidies would "destabilize the individual insurance market in any State with a Federal exchange, and likely create the very 'death spirals' that Congress designed the Act to avoid." Bagley continues that "Roberts rightly rejected the plaintiffs' contention that Congress meant to level a threat at the states: set up exchanges or watch your insurance market burn. Instead, Roberts trenchantly noted that the ACA expressly anticipated that some states would decline to set up exchanges. Why read the statute to punish those states? As Roberts said, "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them."

Both Roberts and Bagley are wrong on the reason why Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. Both men are entangled in a logical fallacy which perverts their understanding of congressional intent to fit a square peg into a rounded hole when President Obama and the Democrat Socialist Party's intent for using trickery and deceit ("out-of-pocket costs will be $2,500"; "If you like your doctor you can keep your doctor," $5 billion dollar dysfunctional Obamacare website, etc...) to essentially force on We the People into a communist healthcare system in America like that in Soviet Russia. The diabolical effect of Bagley and Obama's logical fallacy is simply to enslave every citizen under the power of the State and put the power of birth, life and death into the hands of evolution atheist zealots of the Democrat Socialist Party who in time will use that godlike power to thin the herd so to speak in order to usher in the Communist utopia in America.

Bagley's glowing affirmation of the turncoat Chief Justice Robert's opinion affirming (again) Obamacare as constitutional is outrageous since America is supposed to be a free country bounded by liberty and freedom, therefore it is unprecedented for the federal government or the states to force anyone to buy anything in America. To do otherwise amounts to communistic coercion and liberal fascism and is definitely unconstitutional despite what the majority on the Court says. If the Roberts Court can force a communist healthcare system on hundreds of millions of Americans without due process of law, then what would stop them in the future from reinstituting slavery? Remember Chief Justice Roger B. Taney's infamous pro-slavery affirmation: "The negro has no rights that the white man is bound to respect." In 2012 I wrote about the underlying psychological meaning of why Justice Robert's ridicule of natural law (integration of legality and morality) was rejected in favor of positive law (separation of legality and morality), a militantly evolutionary atheist jurisprudence favored by Progressive jurists today.

Justice Scalia's Dissent

In his dissent, Justice Scalia took issue with the majority's willingness to look beyond the literal meaning of the statute. "Words no longer have meaning," he wrote, "if an Exchange that is not established by a State is 'established by the State.'" "But Scalia is wrong. The Amelia Bedelia of the Supreme Court, he would transform statutory interpretation into a game of gotcha, where slipshod drafting is an excuse to ignore persuasive clues about what Congress meant to communicate. Words do still have meaning. It's just that reading the law as a whole – keeping in mind what it aims to accomplish and how it goes about accomplishing it – is the best way to figure out what those words mean, not blinkered literalism," Bagley writes. In other words as Machiavelli wrote, "the ends justify the means."

Bagley's trivial arguments with Scalia are ultimately irrelevant here. Professor Bagley knows that the Left has one supreme law above all others and was coined by the fascist German philosophy Friedrich Nietzsche, Will to Power. This means the Constitution, God, the Bible, natural law be damned; that whatever I want, whatever law, policy, or supreme Court decision I deem is proper, that is what Will to Power means to the Progressive-Communist Left. It's not about Scalia's "full-fledged political theory" or the "risk upsetting whatever statutory deal Congress struck." It's about what the Progressive-Communist Left has always been about, what Karl Marx called in his 1848 book, Communist Manifesto, "The abolition of the family" which Obamacare will existentially promote, thus eventually ushering in Darwin's survival of the fittest and natural selection through the Progressive's globalist Communist utopia.

"Indeed, Scalia's opinion in King suggests why his way of reading statutes is too rigid. After all, the evidence is overwhelming that the members of Congress who drafted the law and voted for it never meant to restrict subsidies," Bagley argues. Yet Scalia had no compunction about upending precisely the sort of political deal his approach to statutory interpretation is supposed to respect. Most judges – and I'll put Roberts in this camp – believe that they'll better capture Congress's meaning by consulting a wider array of evidence. I think of this as the Nate Silver rule: just as a forecaster should almost never ignore data, interpreters should almost never ignore evidence about statutory meaning," Bagley gloated. However, forget the Nate Silver rule and employ the Constitutional Framer's Rule as cited by President George Washington: "It is impossible to rightly govern any nation without God and the Bible."

"That doesn't mean that all evidence should be given equal weight. Roberts, for example, doesn't rest his opinion on the legislative history of the ACA. He didn't have to. The statutory text, read as a whole, clinched the case for him. But it does mean that Roberts rejects the contestable political judgment that Scalia's decision rests upon," Bagley writes. "And that's all to the good. It's not easy to make sense of the messy work product of a large, disorganized, and chaotic legislature. Lord knows it'd be nice if statutes were always crisp and clear. But they usually aren't, which is why respecting Congress's role in our constitutional system requires more than mechanical adherence to literal text," Bagley continues. As Roberts put in his opinion, "A fair reading of legislation demands a fair understanding of the legislative plan."

Judges are Referees not Commissioners

The Supreme Court's deconstruction of the U.S. Constitution and thus society, dates back to its earliest beginnings of the Court in the landmark decision, Marbury v. Madison (1803) whereby Chief Justice John Marshall invented the doctrine of "judicial review" out of nothing but his perverted, egoistic mind. Since Bagley used some rather unremarkable literature (Amelia Bedelia) to ridicule Justice Scalia's plain understanding jurisprudence, allow me here to cite to one of my favorite literary works, George Orwell's 1984. Here's an except where the fascist Big Brother government is working night and day to kill language and thus language's meaning (Reason, ideas, thought) by Syme, an insipid apparatchik working in the Ministry of Truth:
    It's a beautiful thing, the destruction of words, said Syme. The Eleventh Edition is the definite edition, he said. We're getting the language into its final shape – the shape it's going to have when nobody speaks anything else. When we've finished with it, people like you [Winston] will have to learn it all over again... We're destroying words – scores of them, hundreds of them, every day. We're cutting the language down to the bone. The Eleventh Edition won't contain a single world that will become obsolete before the year 2050.
The constitutional Framers considered the judiciary the weakest of the three branches and, to use a sports metaphor, considered judges more akin to referees who enforces existing rules, rather than commissioners who has the power to create or change the rules of the game. In light of the King v. Burwell decision that effectively legalized Obama's communistic healthcare system in all 50 states by killing or deconstructing the plain meaning, the plain language of the statutory interpretation. Thus, 2015 has become 1857, the year of the infamous pro-slavery Dred Scot case where Chief Justice Roger B. Taney's Will to Power jurisprudence commanded, "the negro has no rights that the white man is bound to respect." Likewise, in 2015 the Court in the King v. Burwell case essentially decreed this judicial fascism – 320,000,000 million American citizens have no rights that 6 Justices on the Supreme Court are bound to respect.

Book Notice

Please purchase my latest opus dedicated to that Conservative Colossus, Supreme Court Justice Clarence Thomas. Here are the latest two new volumes from my ongoing historical series – THE PROGRESSIVE REVOLUTION: History of Liberal Fascism through the Ages (University Press of America, 2015):
However, before the book is officially released to the public, I have to place 100 pre-publication orders (50 orders per each volume). I need your help to make this happen ASAP. Please place your order today for Volume 3 & Volume 4. Of course, if you can order all 100 copies today, the book will become official tomorrow.

Please circulate this flyer to all your email contacts & Facebook/Twitter followers who may be interested in purchasing this opus which will serve as a ready apologetic against the rampant Marxist-Progressive propaganda taught in America's public schools, colleges, universities, graduate schools, and law schools. Thanks in advance to all my friends, associates and colleagues for your invaluable support! Law and History Blog: www.EllisWashingtonReport.com

Invitation for manuscripts

I am starting a new a program on my blog dedicated to giving young conservatives (ages 14-35) a regular place to display and publish their ideas called Socrates Corner. If you know of any young person who wants to publish their ideas on any subject, have them send their essay manuscripts to my email at ewashington@wnd.com.

© Ellis Washington


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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Ellis Washington

Ellis Washington is a former staff editor of the Michigan Law Review (1989) and law clerk at the Rutherford Institute (1992). Currently he is an adjunct professor of law at the National Paralegal College and the graduate school, National Jurisprudence University, where he teaches Constitutional Law, Legal Ethics, American History, Administrative Law, Criminal Procedure, Contracts, Real Property, and Advanced Legal Writing, among many other subjects... (more)


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