Judge Vinson’s Florida decision to declare the Affordable Healthcare Act unconstitutional primarily relies on his view that the mandate that individuals purchase healthcare insurance is not an activity that Congress can regulate under the Commerce Clause of the Constitution. There is no plain meaning or simple explanation of the Commerce Clause, which has itself been subject to varying interpretations.

Vinson’s approach  was to selectively review cases interpreting the Commerce Clause, while making little attempt to put the past decisions of the Supreme Court in historical and political context. It is not surprising that Vinson seems puzzled in his analysis since he is not the first federal judge (or Supreme Court Justice) to flail at understanding the Commerce Clause or to find selective meaning from prior decisions.

Felix Frankfurter, a noted jurist, lectured about the Commerce Clause before he joined the Supreme Court. His lectures were later published in a book, “The Commerce Clause Under Marshall, Taney and Waite.”One consistent theme is the deference of the Justices to political decisions by Congress.

Of Justice Waite he says, “Waite was governed by his general attitude in leaving to Congress, rather than in assuming for the Court, the accommodation of the commercial interests of state and nation.”

Frankfurter is fond of Harvard Law Professor James Bradley Thayer, and a quote he selected from Thayer is quite apt to today’s heated discussion and polemics, which obscure the legal issues. Although Thayer wrote in 1899, his comments are equally apt in 2011.

Thayer said:

“In considering this matter of constitutional power, it is necessary, in view of what we are reading in the newspapers nowadays, to discriminate a little. Our papers and magazines and even the discourses of distinguished public men, are sometimes a little confused. We must disentangle views of political theory, political morals, constitutional policy, and doctrines as to that convenient refuge for loose thinking which is vaguely called the “spirit” of the Constitution, from doctrines of Constitutional law. Very often this is not carefully and consistently done.”

Today in 2011 we can read commentators telling us that Judge Vinson’s decision is going to destroy state government because of his purported ignorance of the Constitution, as well as other commentators who seem not to have the slightest grasp of the scope and limitations of his decision—the Sky is Falling commentators on the web being the most egregious offenders.

Thayer recalls that it was, in the past, seriously argued that it was unconstitutional to issue paper money and make it legal tender, arguments often voiced with vehemence. Thayer observed that:
”The trouble has been, then and now, that men imputed to our fundamental law their own too narrow construction of it, their own theory of its purposes and its spirit, and sought thus, when the question was one of mere power, to restrict it great liberty.”

Of the Constitution, Justice Thayer said:

“As it survives fierce controversies from age to age, it is forever silently bearing witness to the wisdom that went in to its composition, by showing itself suited to the purposes of a great people under circumstances that no one of its makers could have foreseen.”

Thayer also said: “Petty judicial interpretations (of the Constitution) have always been, are now, and always will be, a very serious danger to the country.”

Judge Vinson, by inserting local politics into his decision and by pandering to the Tea Party in his analysis of the Constitution, has done a grievous wrong to the drafters of the Constitution as well as an injustice to the lower court judges who undertake serious analysis of difficult issues. Vinson, like many judges before him, has insidiously inserted petty politics and polemics into a serious issue of Constitutional interpretation. Thayer might well consider Vinson to be a danger to the country.

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Palin Has Earned Respect

February 17, 2011

Sarah Palin has proven to be an athletic, powerful, astute, photogenic and wealthy woman. Since her selection as a vice-presidential candidate in 2008 and her loss, she has  capitalized on her national recognition and visibility to create a media personality and earn millions of dollars.

Despite her success, her achievements as a businesswoman/politico have been criticized or ignored by both Republicans and Democrats. A bigger issue is why women generally have not celebrated her success. It is understandable that fat, old media men are befuddled by her use of power, and the ilk of Matthews, Beck and O’Reilly are understandably threatened by an attractive, aggressive woman who has amassed wealth and power without asking for or needing their blessing.

Ms. Palin is everything these media men are not. She knows how to start a snowmobile and feed sled dogs. She actually enjoys going on long hikes on cold snow days, and carries her own pack. She uses guile, brains and talent, yet Ms. Palin is subjected to snide criticism from pundits for both parties. Perhaps the TV media folks feel unloved, since they need Palin more than she needs them.

The politico media entertainers are so used to manipulating their guests by scripting fake conflicts and soliciting polarizing comments, that a real personality that is beyond their control puts them off guard. It is worth observing that there are few women commentators doing political entertainment on TV, perhaps because the supercilious male media moguls controlling content won’t deign to put an intelligent woman journalist in prime time. Rachel Maddow may be an exception, but  her anti-Palin jibes seem so unfair and inconsistent with what feminists claim to want. Sadly, Maddow’s entertainment hour needs thoughtless, manufactured polarity to get entertainment kudos and advertiser bucks from the old men who run her program

Like CNBC TV, Fox “News” is a misnomer. Fox News is a  pure entertainment show, just like CNBC. None of the hosts purport to be journalists or to have any interest in facts or objectivity. The concept of “fair and balanced” ( a calculated suggestion of objectivity) is not allowed in the studios, and to suggest otherwise is a sick joke on real journalists who try to be objective.

Sometimes Glenn Beck’s rabid rants are entertaining, with a rare fact thrown in as news so that it can be meanly distorted. What is curious is that both Fox and CNBC ignore Palin’s credentials and success. Where are the feminists who too often support candidates that are wealthy philanderers. Why are feminists such harsh critics of Ms. Palin, who has been remarkably successful in using her talents to amass prestige and wealth and power, goals that feminists espouse for women.

Ms. Palin has used her success to support other women running for office, and surely in the long run it will be better to have more women in office running the country, rather than serving tea and crumpets  to unfit, lazy men.

Ms. Palin is young and has plenty of time to decide whether and when to re-launch her political career. In the meantime we should give her the same recognition and applause that we would give to a man with similar achievements