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Modern life is the rubbish of the past. We all live on the rubbish: it dictates our thoughts. And because it’s all built up over such a long time, there’s no necessity for originality any more. There are so many old things to splice together in infinite permutations that there is absolutely no need to create anything new.
- Damon Albarn
I remember AOL circa 01-02. Surfing to discussion boards, IM-ing friends, reading news stories on the homepage, being stuck inside the terrible AOL browser. Facebook is starting to feel like an updated version of AOL: pages are discussion boards, chat is IM, and now terrible news stories appearing in my feed all the time. An alternate web is surfed from within the terrible Facebook UI. It all seems depressingly familiar.
Could Facebook collapse like AOL did?
There is a lot of theorizing going around about Chief Justice Roberts being a wily chess player, who has outwitted the Marxist Left by his crafty opinion yesterday. One need only read the Kennedy dissent (and the short Thomas dissent) to see how fanciful this notion is. I am more in agreement with analysis that Roberts is a typical lover of elite approval and establishment thought (see C.S. Lewis, "The Inner Ring"). Here are some ‘dissenting opinions’ from the chess player idea:
This is a bit of nonsense. First, the ruling hardly does anything to expand existing limitations on Congress’ legislative power under the Commerce Clause. Second, Roberts gave an expansive reading of Congress’ power under the Taxing Clause, susceptible to the exact same slippery slope (broccoli) arguments that were made against upholding ACA under the Commerce Clause. Third, Roberts has consistently demonstrated that he’s simply not that concerned about states rights and federal power (the immigration case immediately comes to mind). If anything, he knows that’s a losing battle. The Healthcare Cases are better understood as an attempt by Roberts to save the political capital of the Court for other fights — such as affirmative action, voting rights, marriage equality, corporate speech — and not as a sneaky way to further the federalism agenda.
What Roberts’ decision today tells us is that he is unlikely to ever cast a decisive vote against the consensus of the Washington elite. This means that the Roberts court will never overturn Roe v. Wade, because such a decision would create even more controversy than overturning Obamacare would have. And it also means that Roberts is unlikely to resist the strong political pressure that exists in elite circles to create a constitutional right to gay marriage.
The author ignores the fact that "the Roberts Court" (that is, Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) also expanded the power of Congress to "lay and collect Taxes" beyond anything ever claimed before. Rather than noting that Congress can now force any American citizen to purchase something he does not desire or need simply by levying a a tax on him if he does not, he even tries to make lemonade out of Roberts’ declaration that the penalty imposed by Congress for failure to purchase health insurance is "legally a tax":
Republicans can and will declare that Obama has slapped the single biggest tax on the middle class in history, after promising not to do that.
Who cares that Congress has just been granted total power over how you choose to spend your money—at least Mitt and the rest of the Republicans can start cranking out those campaign ads!
Those who want to provide cover for Chief Justice Roberts or for the Republican presidential candidate who has promised to "nominate judges in the mold of Chief Justice Roberts" will undoubtedly keep referring to the supposed limitation of the Commerce Clause. But that’s a lot like applauding a murderer for not stabbing his victim with a knife because he blew him away with a cannon.
The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. And it changes the intentionally coercive sanction of a total cut-off of Medicaid funds to a supposedly noncoercive cut-off of only the incremental funds that the Act makes available.
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. It makes enactment of sensible health-care regulation more difficult, since Congress cannot start afresh but must take as its point of departure a jumble of now senseless provisions, provisions that certain interests favored under the Court’s new design will struggle to retain. And it leaves the public and the States to expend vast sums of money on requirements that may or may not survive the necessary congressional revision.
The Court’s disposition, invented and atextual as it is, does not even have the merit of avoiding constitutional difficulties. It creates them. The holding that the Individual Mandate is a tax raises a difficult constitutional question (what is a direct tax?) that the Court resolves with inadequate deliberation. And the judgment on the Medicaid Expansion issue ushers in new federalism con-cerns and places an unaccustomed strain upon the Union.
Those States that decline the Medicaid Expansion must subsidize, by the federal tax dollars taken from their citizens, vast grants to the States that accept the Medicaid Expansion. If that destabilizing political dynamic, so antagonistic to a harmonious Union, is to be introduced at all, it should be by Congress, not by the Judiciary.
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn.
In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.
The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.
The dissent claims that we “fai[l] to explain why the individual mandate threatens our constitutional order.” Ante, at 35. But we have done so. It threatens that order because it gives such an expansive meaning to the Commerce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroying the Constitution’s division of governmental powers. Thus the dissent, on the theories proposed for the validity of the Mandate, would alter the accepted constitutional relation between the individual and the National Government. The dissent protests that the Necessary and Proper Clause has been held to include “the power to enact criminal laws, . . . the power to imprison, . . . and the power to create a national bank,” ante, at 34–35. Is not the power to compel purchase of health insurance much lesser? No, not if (unlike those other dispositions) its application rests upon a theory that everything is within federal control simply because it exists.
If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).
SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting
Severian of Gabala in his Sermons on Genesis says,
The two Testaments are brothers: they issue from the same father, and that is why they express themselves in similar terms. They have almost exactly the same appearance, the same traits. Just as there many points of similarity between two brothers, whom the same father brought into the world, there is the same close relationship between the two Testaments, whose origin is the same. In the Old Testament, the law appeared first, followed by the prophets ; in the New Grace, the Gospel is first and the apostles follow. Here we find twelve prophets, namely Hosea and others: then the four famous ones, Isaiah, Jeremiah, Ezekiel, Daniel. In turn the New Testament gives us twelve apostles and four evangelists. It is by brothers that the voice of God in the Old Testament is made known; because Moses and Aaron were the first ones charged to set forth the will of the Lord: similarly, in the Gospel, the first that were called were Peter and Andrew. There was only a regular grace, here a grace two times more precious. There the were two brothers were called Aaron and Moses ; here there are two brothers twice, Peter and Andrew, and James and John. It was the intention of Christ to offer us an image of love in the Holy Spirit, and to make us brothers at the same time by feeling and spirit: in consequence he takes nature as a foundation; he joins to it the tender feelings of humanity, and with that he built the foundations of his Church. In the Old Testament, the first miracle that appears is the changing of the waters from a river into blood ; the first miracle that we see in the New is the changing of water into wine.
I love the bit about Moses, Aaron, Peter, Andrew, James and John. A doubling of the Old Covenant pattern.
In his book From Dawn to Decadence, Jacques Barzun uses the term “demotic” to describe our era of decline. Demotic means “of the people.” I was struck by his analysis of casual style, and this is an extended excerpt from the book:
Casualness took many forms, and to wear jeans that were torn and stained was casual, but only at the start. When one could go to a shop and buy the jeans ready-made with spots and patches, cut short and unraveled at the edges, a new intention was evident. When young women put on an old sweater, pearls, and evening pumps together, when young men went about in suits of which the sleeves covered their hands and the legs of the trousers were trod underfoot, they made known a rejection of elegance, a denial of feminine allure, and a sympathy for the “disadvantaged.” Such clothes were not cheap; their style was anti-propriety, anti-bourgeois; it implied siding with the poor, whose clothes are hand-me-downs in bad condition. To appear unkempt, undressed, and for perfection unwashed, is the key signature of the whole age. As in earlier times the striving was to look and act like “quality,” whether aristocrat or upper bourgeois, now the effort was to look like one marching along the bottom line of society. The hitherto usual motive behind self-adornment-vanity-had the advantage of concealing physical blemishes, thereby showing regard for the onlookers’ sensibilities. The reverse, the self purposely uncared for, expressed at once demotic anti-snobbery and demotic egotism.
The Unfitting appealed to the young but was not their monopoly. A sample of the casual style among adults had been to sport a business suit at the opera; this expanded into the open collar and no tie or jerseys and T-shirts almost anywhere, even in church. Airport crowds offered a typical fashion show. Where office workers were still required by their employer’s rules to wear business suits, “free Friday” relaxed them to usher in the weekend. In schools, extreme unfitness caused a reversal. Dress codes were enforced despite protests and strikes, so as to put an end to the distraction caused by the bizarre and sometimes indecent garb that the pupils had devised, unchecked by their parents. It turned out that discipline in classes and hallways improved, further evidence that the unfitting was an aspect of the unconditioned life.
Clothing was but the most obvious sign of the demotic style. Other choices expressed the same taste, for example, getting married underground in a subway station or around a pool, in swimming suits. And since unfitness meant freedom, other conventions should be defied, notably those classed as manners. The word was seldom used and the practice highly variable. Business firms and airlines thanked their customers effusively, but civility between persons was scant, especially in cities.
Deference toward women had decreased and was sometimes resented by feminists as condescending. Nor were the elderly entitled to more courtesy than other equals. The curious use of first names soon after acquaintance was a convention that showed the demotic paradox about convention itself.
The need to hurry, real or imagined, had created fast food, available at all hours, and it begot eating and drinking everywhere at any time. Shops, public offices, libraries, and museums had to post “No Eating or Drinking” signs to protect their premises from accidents and the disposal of refuse. The consumer society consumed, and up to a point one can sympathize with the impulse. In a heedless, uncivil world the driven needed to look after their wants as soon as they arose, to pay themselves back, as it were, by self-coddling. The indulgence was after all but the extension of the habit of EMANCIPATION. So many curbs and hindrances to desire had been removed-the legal and conventional by new laws and new conventions, the natural ones by techne with the aid of science-that the practice of permissiveness sprang in fact from the workings of welfare, coupled with the power of doing innumerable things by pushing a button.
Pleasure first and fast in a society that oppressed only unintentionally was bound to make instinctive rebels. At work, criticism or reproof was felt to be intolerable; there is a human right to make mistakes. Observers spoke of the decline of authority, but how could it survive in a company of equals? Distrust attached to anything that retained a shadow of authoritativeness-old people, old ideas, old conceptions of what a leader or a teacher was meant to do.
I realized that my youth came at the tail end of this process, when the last mores were crumbling. The idealization of the Sixties by the media colored my early reality. I sometimes think I will spend my whole life attempting to undo the foolishness I took for truth when I was young.
Doug Wilson has a short snippet on marking up his Bible:
“When I was first working through this, I bought a Bible I could mark up well. I then spent a few weeks looking up every passage in the Old Testament that is quoted in the New. Many Bibles will mark such cross-references in the New Testament, but it is rarely done in the Old. I highlighted every quotation from the Old Testament in the New Testament, and then I looked it up in the Old Testament and highlighted it there. Then I wrote in the Old Testament margin where in the New Testament this passage was quoted. When I was done, I had sloppily executed The Apostolic Study Bible. When I was reading in the Old Testament, I could immediately tell if Jesus, Peter, or Paul had ever discussed the passage I was currently wondering about. I would then look at what they said, and the striking thing is that they were consistently surprising. They oftensaid the passage I was reading was not about what I had thought it was” (Heaven Misplaced, p. 95).
I did the same thing to my favorite NAS back in the Nineties and it was and is an invaluable aid to study.