Do only law school grads understand SCOTUS and our Constitution?

Several readers, one an attorney, have sent me links to articles making the case that Chief Justice Roberts was actually brilliant and principled in his opinions issued yesterday because what matters is finally setting some limits on the Commerce Clause. One of those pieces assumes those who fault Chief Justice Roberts for his words released yesterday (and the days before concerning Arizona's immigration law) are rubes...

Here's an excerpt:

Few today notice what (Roberts) has done. Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington's intrusions.

It is understandable that most Americans, who are not law school graduates, do not think in these terms, nor do most pundits outside the legal community who interpret news. However, attorneys and certainly law professors get it.  We know what happened on Thursday. It was subtle and below the radar, like a tsunami beginning in the middle of an ocean, still days away from the shore.  Only the trained insiders know what that rumbling will cause in the future. This was a tsunami, finally giving us our first Supreme Court precedential holding in nearly a century that reins in the federal government's unbridled abuse of the Constitution's Commerce Clause. And the liberals, excited as they understandably are by the temporary survival of ObamaCare, do not even realize what has happened to a pillar of their enterprise. And that is fine.

It's hard for me to imagine anyone half-awake not noting immediately the ground gained by this decision against the abuse of the Commerce Clause. Of course we all took notice and are dutifully thankful for that significant victory. Why our good writer would think otherwise is beyond me.

The larger matter, though, is the Chief Justice's lack of integrity in manufacturing a justification for not overturning nationalized health care. The other men of the court didn't think they had to invent some specious justification for nationalized health care such as Chief Justice Roberts' "It's a tax." Why did Chief Justice Roberts think he needed to invent one?

Really, when we see it's not necessary to sustain President Obama's nationalization of health care in order to take a stand against the abuse of the Commerce Clause, Chief Justice Roberts no longer looks brilliant, but simply craven. And that's where I stand.

One other matter: someone commented saying I should not waste or abuse my pastoral authority by writing about this Supreme Court ruling because it's not a matter of the Gospel nor something all Christians living under Scripture must agree on. True. I never said or implied otherwise. There are many things on this blog that are a matter of faithfulness to Scripture. This SCOTUS decision is a political matter and the authority I cited was the U.S. Constitution. So if you disagree with me on this and think Chief Justice Roberts is not craven, but brilliant, God bless you. I hope all Baylyblog readers realize that there are many posts that are not sermons or Biblical exhortations, but thoughts "out of our minds."

Tim Bayly

Tim serves Clearnote Church, Bloomington, Indiana. He and Mary Lee have five children and fifteen grandchildren.


"Few today notice what (Roberts) has done. Long after many of us are gone, this 5-4 opinion finally setting limits on the reach of the Commerce Clause will continue to affect American lives and protect private citizens from Washington's intrusions."

I'm getting quite confused by this entire line of argument, especially when it's being used as a defense of Roberts. There are two reasons for this:

1. Chief Justice Roberts could have easily done the exact same thing and still overturned nationalized healthcare, right? This wasn't an "either-or" scenario.

2. People using that line of argument are assuming that none of us are going to see or call their attention to the point addressed in #1, and that's just insulting. 

....suggesting that the Constitution gives carte blanche to government to enact what it wants "as long as a tax is involved" would seem to fly in the face of what the Founding Fathers did--declare independence over intrusive taxation.

I hold no special brief for Justice Roberts. I don't know his motivations. Nor do I find virtue in Obamacare. But there is a long history behind the idea that courts will salvage a statute's constitutionality if they can find any basis for it. The rationale supporting this is that legislatures, not courts, are supposed to be the primary makers of law. that used to be claled "judicial restraint" and it used to be looked on as a virtue by people of different--but perhaps especially conservative--political views. It was deceptive of the Administration to say that the law does not impose a tax. This sort of deception did not originate with the current crew in Washington. Look at your phone bill, with its half dozen or so government-imposed charges, only one of which is actually labelled as a "tax." They are all taxes and so is the charge in this health care law. When the government says, "Pay us," it's either a fine or a tax. If there is no finding of wrongdoing, potentially appealable to the courts, it's a tax, no matter what the particular statute wants to call it. So the question really is whether Congress has the power to levy such a tax. I think it does. Incidentally, this has been my opinion all along, not something I adopted to whitewash Judge Roberts. A bad law is not always unconstitutional.

Congress doesn’t have the authority to nationalize health care through the Commerce Clause or any other enumerated power. That should have ended the Court's inquiry. If Congress lacks authority to accomplish something, it may not conjure it into existence through taxation.

Harvard law professor and associate justice of the U.S. Supreme Court, Joseph Story, made this point repeatedly in his Commentaries on the Constitution.

“No one would pretend, that the power to lay taxes would, in general, have superseded, or rendered unnecessary all the other enumerated powers. It would neither enlarge or qualify them.”

“Congress are not to lay taxes ad libitum for any purpose they please; but only to pay the debts, or provide for the welfare of the Union. In like manner they are not to do anything they please, to provide for the general welfare; but only to lay taxes for that purpose. To consider the latter phrase [i.e., to lay taxes], not as describing the purpose of the first [i.e., to provide for the general welfare], but as giving a distinct and independent power to do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they pleased. . . . Certainly no such universal power was meant to be given them. It was intended to lace them up strictly within the enumerated powers, and those, without which, as means, those powers could not be carried into effect.”

“Congress is not empowered to tax for those purposes, which are within the exclusive province of the states.”

“The power to regulate manufactures, not having been given to congress, they have no more right to act upon it, than they have to interfere with the system of education, the poor laws, or the road laws, of the states. Congress is empowered to lay taxes for revenue, it is true; but there is no power to encourage, protect, or meddle with manufactures.”

--Joseph Story, Commentaries on the Constitution §§ 919, 923, 924, 959 (1833) (internal quotes omitted).

Insert "health care" for "manufactures" in the last quotation and the answer is clear. No purchase of a law degree necessary.

Pity the privacy rights found in those emanations and penumbra don't extend to my right to keep private what sort of insurance policy I purchase -or- whether I choose to fund abortion and abortifacent drugs by said purchase.

Do you mean that if you have to purchase private health insurance (either as an individual policy you bought through a commercial insurance company or whether you buy health insurance from one of the upcoming state exchanges) that you think the feds will keep track of who you buy your health insurance from?

Also, I don't understand what you mean when you said,

....whether I choose to fund abortion and abortifacient drugs by said purchase.

Do you mean that you would only buy health insurance from a company that had a formulary that excluded the drugs available in their formulary for an RU-486 abortion, the morning-after pill, and covered IUD insertions, etc.?

--Sue (sleepless in central Ohio tonight)

John Roberts is a liar. He disallowed the law as a tax so it could proceed then said it was a tax to keep it. 

There are 3 remedies:

1. nullification - States simply refuse to abide.

2. Civil disobedience personally

3. Secession

I can not as a Christian comply with this.


I simply mean that, if this "constitutional" right to privacy means anything, it should extend to whether or not I purchase health insurance as well as what coverages I choose to purchase. Including, whether or not as part of a group coverage plan, I'm subsidizing by my premiums, the purchase by others of EllaOne, IUD's, etc.

Personally, this seems to be a secondary issue where good Christians can hold differing views. We can about learn the pros and cons of this legislation from each another, as well as ideas for modifications we can pitch to our Senators and Representatives, especially those running for election/re-election.

Personally, I never found the health care reform law as a panacea, and some of its flaws are obvious. But it sure seemed better to me than the current situation, and I hope it can be "mended, not ended" after the November election. 

P.S. For what it's worth, I'm very upset that our state's lieutenant governor (also the head of our State Department of Insurance) turned down a planning grant from the feds to set up our state's insurance exchanges required under this new law. Now we'll get the plan the feds give us and not one we can tailor to our state's needs. 

There's also a very interesting argument to be had as to how well it will work in practice. I don't have a dog in this fight, but it seems that they are taxing the people who do carry healthcare insurance, to pay for the healthcare needs of those who don't or can't. Fair summary?

*coming from a past life in health economics*

......might be attained by remembering the doctrine of the perspicuity of Scripture, and early legal scholars in our country (as well as those who followed Cromwell in the UK) argued that the law ought to be understandable to the common man--not necessarily a dunce, but definitely to the common man.

OK, there goes 9/10 of our federal code right there, right?  But more to the point, does our current electoral distress arise due to our failure to adhere to historic Protestant theology--specifically the implications of sola Scriptura--at the ballot box?  Have we aided and abetted the enslavement of our land by failing to note the consequences of politicians who respond to difficult questions with a condescending "leave it to the experts"?

If you choose the civil disobedience method it is my understanding of Obamacare that if you choose not to pay for health insurance and you get the penalty levied against you, since it is not a real tax the government can't actually do anything to prosecute you if you choose not to pay the penalty. 

Tim Bayly's blog post sums up my thoughts as well. As I noted earlier, the stark reality is that we have an untenable political situation in this country. The SCOTUS will not serve its role to check legislative abuse. The Federal government is dysfunctional. John Calvin pointed to the role of the lesser magistrate in Christian theology, i.e., this is to whom you appeal for redress of grievance. It's perfectly legitimate to go through our state governments and work to block and dethrone a tyrant. 

The second part of my post goes to a larger issue w/in the Church and is prompted by Pastor Bayly's need to justify political comments at the end of his post. I've seen this sort of apology occurring more and more throughout the PCA. It's the Tim Keller movement fleshing itself out and it will end up limiting the whole counsel of God. 

First, the Keller people ardently eschew politics. It's easy to see why in some instances. For Christians have allied themselves w/ all sorts of miscreants and strange bedfellows in order to advance certain political ideas. The idea that the Church in any official capacity should get involved w/ a cause or a certain political party is nauseating to many. 

The problem with this hyper 'spirituality of the church' stance is that the in the Kellerites world anything that is politicized then becomes off the table for the Redeemer-branded church. Do you catch this? 15 years ago the issue of "gay marriage" was not even bandied about and most in the Church - the Evangelical Church anyway - recoiled at this and spoke out about it. Now, since the issue has been thrust into the realm of politics and the State is now taking an active role in codifying this type of behavior with a protected class status - we're all told to back off with the involvement and critique, it's all about social justice, can't muddy up the gospel, etc. 

So now, anything gets pulled off the official lexicon of ecclesiastical comment just by making it 'political'.

This whole thrust in the PCA to eschew anything political for fear of tainting our message has been muddled by the Redeemerites. For, it has long been the Reformed view that the Church most definitely has something to say to the state. The state is people and Jesus is Lord over the State and Jesus unequivicolly states "Thou shall not murder"; " thou shall not steal", etc. And, the gospel says "Repent and believe". 

It just seems that a vast segment of the PCA has been intimidated into silence on subjects the bible emphatically deals with b/c those subjects have become 'political' in modern America. To be 'political' is to offend and drag the gospel into the fray. I reject this. We don't need to be political but we do need to call out all, point out ALL sins, and command repentance to Christ. All includes the State and those in it, the Church and those in it, the worker, the boss, the MSM, the gay, the straight, the European the African, the president, the Congress, the Chief Justice of the Supreme Court....  ALL w/ the whole counsel.

Maybe so, but they can ask the states to punish you and then withhold federal funding from states that refuse to, right?

I am not sure if the states will be able to punish you since the penalty will be paid to the IRS like a tax but since it is not classified as a tax they technically have no power to punish you for not paying something that isn't a tax. Heard this on NPR.

Well done Tim.  Excellent.

Ah. Makes sense. Still, the feds are sneaky. They've got secret silent black helicopters and stuff. I'm pretty sure they can find a way to do this, too.

It's worth reading this, too.

Uncle Tim,

After reading Robert's opinions, I would have to respectfully disagree. Roberts started his opinion with saying that he did not make his decision based on bad policy or good policy, but on Constitutionality.

Now I do not think that he is "brilliant" for what he did, but he was accurate. In the beginning he smashed the Commerce Clause argument, and in the second half, he railed against the bill itself as displaying more power than the government should have. However, he also admits that, unfortunately, it is Constitutional.


Here's an article I wrote on the topic:

Isaiah Taylor

Dear Isaiah, 

Did you read the piece I linked just above? If so, I'd be interested to hear your thoughts on it.


Dear Isaiah,

Good work reading Chief Justice Roberts' opinion. I went and read your summary of Chief Justice Roberts' opinion and found it a good summary of Chief Justice Roberts' opinion. But that's the problem. Reading an opinion doesn't give you a place to stand in understanding that opinion's errors.

Also, it's important given what you've written above that you keep in mind every judge or justice claims his decision is apolitical. They all say they make their decisions based strictly on the merits of the case. Roe v. Wade and Lawrence v. Texas were both made by justices who claimed to have decided the matters based strictly on the merits of those cases.

But of course they were lying.

Similarly with Chief Justice Roberts: because he says it's so does not make it so--especially this howler. 

Read the two critiques I just linked to on the most recent post. They will help you to understand how bad and how political Chief Justice Roberts' opinion was.

Please give my love to your family and have a happy Fourth of July!


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