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Judge Not

Hey, remember two weeks ago, when a federal judge in Michigan ruled that ObamaCare's individual mandate was constitutional? The judge in that case ruled that under the Commerce Clause, Congress could legally require every individual American could be required to purchase a product.

For those who have forgotten, here's the relevant portion of the Constitution -- Article I, Section 8:

The Congress shall have Power To...regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...

The atrociousness of that particular ruling is an argument that's been made before and will be made again, but that's not my focus here. Instead, I want to recall the response of a lot of ObamaCare supporters was "hey, a judge ruled it's legal! So all you con troglodytes just shut your pieholes and suck it up, losers!" (I paraphrase loosely).

Well, yesterday another judge ruled that "Don't Ask, Don't Tell" was legal and could stand as the law of the land, overturning a previous ruling. So, can we count on the same people to shut their pieholes and suck it up?

Of course not. A judge's ruling is only absolute and final when he or she agrees with you. Otherwise, it's the worst miscarriage of justice that will be appealed and overturned when more reasonable heads prevail.

In reality (which some folks -- mostly on the left, but a few on the right as well -- could stand to visit every now and then), there are no "final" decisions on highly controversial issues. Even Supreme Court decisions can be fought and reversed.

Remember Dred Scott? Obliterated by Constitutional amendments XIII-XV. Plessy v. Ferguson? Overturned in Brown v. Board of Education.

Likewise, other Supreme Court decisions are built on very shaky reasoning, but are still the law of the land -- for now. Roe v. Wade and Kelo v. City Of New London come to my mind immediately as decisions that were woefully wrong-headed and did violence to the letter and spirit of the Constitution.

That's how our system works. Almost nothing is graven in stone -- it's all subject to revisiting and reinterpretation and correction. The Constitution lays out numerous ways it can be done, and indeed has been done over the centuries. In fact, the best description I've ever encountered of the United States system of governance as "institutionalized revolution."

So, currently, one judge has ruled that Don't Ask, Don't Tell is valid and another has upheld some of the more malodorous portions of ObamaCare are, too. Big whoop. Both cases will end up before the Supreme Court, and even then the backers of the losing side will keep fighting it out for years to come. It ain't over until it's over, and sometimes not even then.

It's the American way.

Update: if anyone needed any proof that I'm not a lawyer, check the comments -- I missed citing Bush v. Gore and Citizens United as examples of Supreme Court verdicts the liberals still want to fight, and I kinda sorta mangled the Plessy/Brown situation. Even more embarrassing, I mistook the DADT injunction as a decision, which was the impetus for the entire article. But I think my points are still valid.


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Comments (16)

"hey, a judge ruled it's le... (Below threshold)

"hey, a judge ruled it's legal! So all you con troglodytes just shut your pieholes and suck it up, losers!"

Funny how that sentiment was curiously lacking among liberals in the wake of Bush v. Gore, isn't it?

Dammit. Mike, I HAD that ex... (Below threshold)

Dammit. Mike, I HAD that example in mind when I started writing this piece, and it somehow sneaked out of my brain. Thanks for bringing it back up.

J.

Jay: The 9th Circuit Court... (Below threshold)
Bob:

Jay: The 9th Circuit Court of Appeals issued a stay in the DADT case. This means that the law stays in effect pending the government appeal. It is not a ruling that the law is constitutional. Perhaps you were referring to another ruling by a federal judge that I'm unaware of, but, if you're talking about the 9th Circuit's stay, you should differentiate between a substantive decision on the merits and a stay pending a hearing and ruling.

Its a done deal. Barry is a... (Below threshold)
914:

Its a done deal. Barry is a scholar above all. He would not subject us to something unsupported constitutionally. Barry is good at heart and knows whats best for us.


The Log Cabin Republicans a... (Below threshold)
epador:

The Log Cabin Republicans and the Courts have placed an amazing stress on our troops at a time when they are already stressed past limits of sanity. This action threatens the appropriate process that was in place for dealing with this problem.

A perfect example of "do gooders" doing great harm.

Another excellent example o... (Below threshold)
Stan:

Another excellent example of the left being unhinged by a court decision, is the recent decision by the Supreme Court in the Citizens United case. Barry and his acolytes went totally ballistic when this one came out. Even to calling the Justices that were in the majority, a bunch of flaming idiots (in not the exact words, but inference) at the State of the Union address.

Jay Tea,Just a poi... (Below threshold)
Polaris:

Jay Tea,

Just a point of reference, Brown v Board of Education did not reverse Plessy v Ferguson. If SCOTUS had done their job and stayed true to the letter of the constitution and the 13th and 14th amendments, that is in fact what would have happened. Clearly seperate but equal was not equal and thus was in violation of the constitution as the lone famous dissent in Plessy v. Ferguson warned. All Scotus had to do was take the dissent as their own and reverse the ruling.

As it was, for several years, you had split precedence in Civil Rights cases where Brown was the precedence for educational based lawsuits while Plessy remained the precedence for everything else....leading to a godawful mess. That mess wouldn't be cleared up until the Civil Rights Act.

Had Scotus done the right thing with Brown and simply reversed Plessy taking the dissent to be the ruling opinion, the Civil Rights Act and all it's subsequent problems would not have been necessary, IMHO.

-Polaris

Here's the *ONLY* thing you... (Below threshold)
Gmac:

Here's the *ONLY* thing you'll ever need to remember about a USSC ruling:

"Its just an opinion."

People tend to forget in th... (Below threshold)
Big Mo:

People tend to forget in this constitutionally illiterate country that the Congress has the power to override a SCOTUS decision namely by writing a new law. To wit: When the SCOTUS ruled that something the Bush folks were doing with the terrorists in Gitmo was unconstitutional, Bush properly turned to Congress and asked for a law that satisfied the law.

Good post, coming from, I i... (Below threshold)
gary gulrud:

Good post, coming from, I imagine, your wheelhouse.

The circuity of your Upd... (Below threshold)
Robert:

The circuity of your Update qualifies you to be the Senate Majority leader, or possibly Vice President.

People tend to forget in... (Below threshold)
john:

People tend to forget in this constitutionally illiterate country that the Congress has the power to override a SCOTUS decision namely by writing a new law. To wit: When the SCOTUS ruled that something the Bush folks were doing with the terrorists in Gitmo was unconstitutional, Bush properly turned to Congress and asked for a law that satisfied the law.

Your contempt for the "constitutionally illiterate" is overshadowed by the irony of you being utterly and decisively wrong. The only way to make something constitutional is to change the Constitution. Either that or rewrite it so that it satisfies the constitutional requirements, but then Congress would be complying with the decision, not overriding it.

When something is ruled illegal, the Congress can make it legal. But no mere law can make the unconstitutional constitutional.

Big Mo, I gotta echo what j... (Below threshold)

Big Mo, I gotta echo what john says, but I'll be kinder: Congress can NOT override a Supreme Court ruling. They can re-pass a law with tweaks that they hope will pass Constitutional muster, or they can work towards a Constitutional amendment, but they can't simply pass a law saying the Court got it wrong.

J.

What is sad is how all plan... (Below threshold)
WildWillie:

What is sad is how all plantiffs "shop" judges to get the first favorable ruling. Like in Arizona, the 9th circuit, etc. ww

While many believe that the... (Below threshold)
josil:

While many believe that the last word on the constitutionality of a law or act is the SCOTUS, this is simply not true. The Congress and the POTUS can, independently, determine that an act is consitutional. The "final" authority of the SCOTUS is basely on the deference given that Court by the other two branches of government...who can, if they so desire, to tell the SCOTUS to "pound sand".

Buck v. Bell has never been... (Below threshold)
ThomasD:

Buck v. Bell has never been officially overturned. States have chosen to repeal their forced sterilization laws, but as of today there is nothing prohibiting their return.

http://en.wikipedia.org/wiki/Buck_v._Bell




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