In light of the newly-begun implementation of "Obamacare" thanks to the green light offered by the Roberts Supreme Court, the effort by the denizens of Mordor-on-the-Potomac to rationalize "extra-judicial" state executions with reliance for cover in large part on citations of other weasel-worded precedents by their colleagues in black robes, and the impertinences of executive and judicial branch office-holders discussed in this week's lead article, I offer again the following Q & A, first posted here last October:

What Does It Mean When "The Court Has Spoken"?

WHAT DOES IT REALLY MEAN when a court makes a ruling? We all want to imagine that a judicial ruling is an expression of what the judge, in his studied and objective and impartial expertise, has concluded to be true, correct, right or the law. Unfortunately, truth, correctness and respect for the law are not what judicial rulings are all about. What a judicial ruling actually expresses is whatever the judge feels compelled (or inclined) to enforce or deny, nothing more.

The fact is, the judicial process is grounded in political considerations, particularly in the case of federal judges. Federal judges are political appointees. What's more, they are usually chosen from among the ranks of political activists who have displayed firm personal allegiance to the views of those doing the appointing, if not even having made campaign contributions and other positive expressions of that allegiance.

Further, even though a sitting judge enjoys a lifetime appointment pursuant to a Constitutional plan intended to insulate him from political pressures and influences, his expectations of advancement are grounded in politics, too. The decisions about who makes it up the ladder from district court to appellate court to possibly the supreme court are made by, and for the purposes of, the reigning political faction.

As a consequence, a federal judge is compelled and inclined by self-interest and personal predisposition to serve and defend the current dominant political orthodoxy, whether it is grounded in truth and the law or not. This is particularly true in regard to any aspect of that orthodoxy that is shared by each political faction that is variably in power off and on.

There being no other supervision available other than an empty threat of impeachment by the very political elite who has appointed him to rule as he does (only eight federal judges have been impeached and removed from office in United States history), we delude ourselves with the notion that a federal judge will be obliged to respect the law by fear of reversal by a higher court. But this is pure eyewash.

After all, the higher courts are themselves staffed by judges advanced to their supervisory roles due to being the most committed to enabling and supporting the reigning political milieu of those in the cadre from which they rose. They are wolves presiding over the foxes, elevated for their own exceptional loyalty to, and accommodation of, the dominant political factions.

All that said, certainly some judges will feel compelled or inclined to rule on the basis of what's right and correct as a matter of personal integrity, and in recognition of the fact that this is how he's supposed to rule. We see and note with surprise and delight these exceptional judges, now and then. But since those chosen for judicial appointment are NOT selected on the basis of their inclination to restrain those appointing them, but rather exactly the contrary, such exceptional judges are few and far between.

Sometimes, too, a judge will feel compelled or inclined to rule based on what's right and correct because he can't see a credible way of doing otherwise, given the particulars of the case, or because he can't count on certain bad rulings being adopted and defended by the court above him. Politics does cut both ways, after all-- some kinds of rulings are so egregiously wrong and so readily apprehended as such that public outcry might result and threaten the stability of the system as it is.

But although correct rulings might result in instances such as these, they do so not because anything inherent in the judicial structure leads to them naturally. Instead, they happen in spite of the prevailing forces controlling that structure, and even when made, rulings truly respectful of the law often come to naught.

Consider, for instance, the truly law-abiding ruling of the Ninth Circuit court in Raich v. Ashcroft, in 2003. This was a case in which a California woman (Angel Raich) had grown marijuana on her own property for her own consumption.

Raich was arrested by federal drug-thugs on charges grounded in federal authority to regulate commerce among the several states (as are all federal "controlled substance" statutes). That clause reads: "Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes."

Raich argued, reasonably, that her behavior had no "commerce clause" relationship, since not only was she doing nothing "inter-state", she was not even doing anything commercial. The Ninth circuit agreed, in a well-written, well-reasoned, law-respecting decision, and then properly refused the United States' petition to re-hear the case.

Unfortunately, a government appeal to the United States Supreme Court was granted. In 2005, the "high court" overruled the Ninth circuit's decision, reasoning that even though Raich couldn't possibly be deemed to have a "commerce clause" relationship herself, if she were left free to exercise her rights, the government's efforts to control the activities of others would be compromised. Think about the implications of that doctrine for a bit...

Actually, you don't have to think about this for too long. Just recently the court again slouched down this path of illogic and disrespect for the law into an offense against all Americans. The outrageous "Obamacare" decision of earlier this year followed the Raich "logic", just as the attorneys for the administration argued that it should:

"[Angel] Raich claimed that Congress could not regulate her cultivation of marijuana for personal use because she was 'entirely separated from the market'. The Court rejected that artificial limit on Congress’s commerce power, because “marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market,” (Scalia, J., concurring in the judgment). The same principle applies here. Because of human susceptibility to disease and accident, we are all potentially never more than an instant from the ‘point of consumption’ of health care."

In Raich, then, we have a sound, law-respecting, liberty-enhancing ruling by a lower court which promptly gets ground up by the court above, whose members are even more married to the existing power structure, and have even less compunction against any kind of shameless contortion in its service than the court whose decision they are reviewing. What's more, that contortion is then used as a pretext for the next, which will, you can be sure, be used in turn for another. (For a detailed discussion of the Raich case-- at first a regrettably naive discussion written before the Supreme Court ruled, followed by a disappointed update, click here.)

In Raich, then, we have a circuit court ruling that recognized limits on federal power, followed by a higher and final ruling that pandered to federal ambition to be free of all restraints, no matter the absurdity of the rationalizations needed to service that ambition. There actually being no rational relationship between the "interstate commerce clause" authority and Angel Raich (but a lot of federal-state clients with a lot riding on the continuation of drug prohibition), what we have in Raich is a perfect example of judicial ruling on the high court level based purely on the political agenda in the influence of which the justices operate.

James Madison, in Federalist 42, explained that the chief reason for the Commerce Clause was: "[T]he relief of the States which import and export through other States, from the improper contributions levied on them by the latter"-- that is, the prevention of one State imposing tariffs on articles crossing their borders. In a 1791 letter to George Washington commenting on the proposed creation of a central bank, Thomas Jefferson explains the limits of the Commerce Clause authority as follows: "[T]he power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes."

John Marshall, first Chief Justice of the US Supreme Court, put the matter this way: "It is not intended to say that these words comprehend that [type of] commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word `among' is, it may very properly be restricted to that commerce which concerns more States than one. ... The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State." Gibbons v. Ogden, 22 U.S. 1, (1824).

From these declarations by the author of the Declaration of Independence, the Father of the Constitution, and the first Chief Justice of the Supreme Court, and from the plain words of the clause itself, do we find support for the notion that the commerce clause authorizes the federal government to punish Angel Raich for exercising her individual rights in service to a scheme to criminalize and punish other Americans from doing the same? Or that it authorizes the federal government to subject you to a punitive tax in order to force you to become a customer of a health-insurance industry whose services you do not want, because otherwise a federal scheme to finance insurance for other people with your money will fail? Clearly not.

But these are things that courts have said. So, does this mean that Madison, Jefferson and Marshall and your own eyes and reason are wrong about the Commerce Clause? Or does the clause now mean something different, whatever it might once have meant?

Or does it mean that the courts have simply chosen to disregard the law, and hope that you will be so conditioned to respect "official pronouncements" that you will imagine one of the first two possibilities are true without further thought (or are so apathetic or so cowed as to pretend one of them are true, and quietly let the rule of law become the rule of the "interpreters")?

Your call.

"A free people claim their rights as derived from the laws of nature, and not as the gift of their chief magistrate."

-Thomas Jefferson

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