By Jeffrey Lord on 7.10.12 @ 6:10AM
Appeasing Statism: John Roberts abandons Constitution, Court, and Conservatives.
….governments are not always overthrown by direct and open assaults. They are not always battered down by the arms of conquerors, or the successful daring of usurpers. There is often concealed the dry rot, which eats into the vitals, when all is fair and stately on the outside. And to republics this has been the more common fatal disease. The continual droppings of corruption may wear away the solid rock, when the tempest has failed to overturn it….
-- Associate Justice Joseph Story, 1829
"His all pervading hope was to go down to history as The Great Peacemaker; and for this he was prepared to strive continually in the teeth of facts…. The Prime Minister wished to get on good terms with the two European dictators, and believed that conciliation and the avoidance of anything likely to offend them was the best method."
-- Winston Churchill on British Prime Minister Neville Chamberlain in The Gathering Storm
September 30, 1938.
After a meeting in Munich, Germany with the German dictator Adolf Hitler, British Prime Minister Neville Chamberlain returned to England on a British Airways plane that landed at the Heston Aerodrome in west London. It was the third time in two weeks Chamberlain had flown to Germany in an effort to strike a political deal with Hitler, and the Prime Minister emerged to cheers from the waiting crowd.
Captured on film, the newsreel footage of the day opens with this now highly ironic caption:
One man saved us from the greatest war of all.
The discussions with, as Chamberlain respectfully referred to him, "the German Chancellor, Herr Hitler," concerned Hitler's demand that the Sudetenland portion of Czechoslovakia, filled with ethnic Germans, be handed over to the Germans post haste. With German de facto control over the rest of the small country. After which, Hitler promised, having already invaded Austria and now achieving his goal in Czechoslovakia, he would cease his demands. Having at last satisfied Hitler's demand -- or so he thought -- Chamberlain asked Hitler to sign a piece of paper that read, in part:
We regard the agreement signed last night and the Anglo-German Naval Agreement as symbolic of the desire of our two peoples never to go to war with one another again.
Hitler, happily, signed the paper.
To emphasize that he had Hitler's agreement in writing, and as immortalized in that piece of newsreel footage, Chamberlain proudly held the solitary piece of paper bearing Hitler's signature and his own into the air, the document fluttering in the wind. Later, on his return to 10 Downing Street, Chamberlain emerged one more time, document still in hand, to utter the phrase associated with him down through the ages:
I believe it is peace for our time.
Hitler, of course, had not the slightest hesitation about putting his name to the agreement -- because he had no intention whatsoever of living up to it. In fact, as captured German and Italian documents would later reveal, Hitler's contempt for Chamberlain was such that he had -- at the very same Munich conference, when Chamberlain was not in the same room -- already agreed with Mussolini that the two countries would fight "side by side" against England. Hitler could have cared less about what the British leader thought when he got around in his own good time to breaking the agreement in which Chamberlain foolishly put his faith.
Journalist William Shirer records that British euphoria over Chamberlain's "triumph" was such that the Times of London rhapsodized that "no conqueror returning from a victory on the battlefield has come adorned with nobler laurels."
A furious Winston Churchill, who had spent almost the entire decade of the 1930's trying to warn his countrymen about the danger of Hitler, took to the floor of the House of Commons to protest. Alas, Churchill was still the proverbial "voice in the wilderness." As he began his famous dissent by saying "We have sustained a total, unmitigated defeat…." -- he was shouted down in a "storm of protest" from the House, forced to wait until the shouts subsided before he could continue.
The policy with which Chamberlain was so obsessed, the policy that produced all of these theatrics and the ultimate disaster we know as World War II, was known then -- and infamously ever since -- as "appeasement."
Appeasement.
Defined by Webster's variously as "to pacify," "to satisfy," and "to yield to the demands of in a conciliatory effort, sometimes at the expense of one's principles."
Say again: "yield to the demands….at the expense of one's principles."
So let us come now to the case of Chief Justice John Roberts.
Who delivered himself of the deciding vote declaring Obamacare constitutional -- clearly infuriating his conservative colleagues on the Court. Not to mention millions of Americans who chose to vote for George W. Bush over John Kerry in 2004 in part because they wanted the conservative Bush, not the liberal Kerry, to be appointing Supreme Court Justices.
Why all the anger towards John Roberts? As here with Thomas Sowell and here, where Mark Levin details why the Obamacare decision was a decided loss.
Because there is a considerable feeling the Chief Justice has treated with Statism and the Constitution's foes as Neville Chamberlain once treated with Adolf Hitler.
By appeasing, by attempting to pacify -- yielding to demands from the Left at the expense of the Constitution's First Principles.
To be clear, let's say the obvious. I am certainly not comparing President Obama or any of the liberal Justices of the Supreme Court to Adolf Hitler, a comparison as silly as it is offensive.
What is being discussed here is how conservatives should deal with two implacable foes: the impersonal, amorphous enemies that are disdain for the Constitution and the worship of the State that is Statism. These two foes are not forces that can be appeased, just as Chamberlain and Britain learned the hard way with the implacable enemy that was Hitler.
Neville Chamberlain, as Churchill pointed out, wanted desperately to be "The Great Peacemaker." Now comes John Roberts, who essentially stands accused of selling out both principle and common sense in a bid to be The Great Peacemaker -- American legal version. The Chief Justice who stands accused of essentially trying to deal with Statism in precisely the same way Chamberlain tried to deal with Hitler. By making the maintenance of peace between conservatives and Statists his first priority instead of First Principles.
By appeasing.
By failing spectacularly to understand that the adversaries that are disdain for the Constitution and the worship of Statism must be seen clearly for what they in fact are: movements to assault and eventually remove liberty and freedom.
Sounds startling, doesn't it? Extremist. Out there. Way out there. What American in their right mind would want to give up their own liberty and freedom? Much less what Chief Justice of the United States would even remotely consider such a thing?
Certainly no one will fess up to aiming at this objective, doubtless in some cases because they themselves don't even realize what they are doing. And most certainly there are those whose guiding belief is "liberty for me but not for thee." Media Matters, for example, wants Rush Limbaugh off the air but would scream bloody murder if there were a serious effort to force Media Matters itself off the Internet.
But make no mistake, this drive to remove liberty and freedom in the name of Statism is exactly what's happening. The Roberts decision being only the latest (albeit more publicized) example of a bitter cup that will be offered year by year, month by month, day by day, hour by hour, picking up speed and specificity as this tragedy unfolds.
How is this done? How does one remove liberty and freedom from a nation founded on principles of liberty and freedom that are enshrined in a 225-year old written Constitution?
Answer? Not by gobbling them up wholesale all at once.
Rather, one accomplishes the goal by serving up the morsels of freedom to be devoured course by course, one bite at a time. Precisely as Neville Chamberlain and his equally appeasement-minded predecessor Stanley Baldwin served up Britain's peace and freedom throughout the 1930s.
In the manner of termites slowly devouring a mansion.
For Chamberlain and Baldwin, unleashing the termites on the British nation took many forms. Repeatedly refusing to rebuild British military power -- the armaments, the air force, the naval preparedness, the lack of a Ministry of Supply and more -- served as a virtual horde of termites let loose to eat away at the vitals of a strong national defense.
Simultaneous to the neglect on the home front was a rigid refusal to take note of Hitler's prodigious efforts to the contrary inside Germany. In complete violation of the Treaty of Versailles that ended World War I ("The Great War," as it was then called), Chamberlain and Baldwin simply refused to acknowledge hard factual evidence that Hitler was "working for an army of offensive strength." Building not only a powerful military equal to that of Britain and France but surpassing it. Not to mention they ignored the fact that once his military was superior to their own, Hitler had every intention of using it.
While these two events proceeded apace inside each country, Chamberlain made concession after concession to "Herr Hitler" in the name of appeasement. Fully believing that if he gave Hitler what he wanted -- he would stop. Go away. And that he, Neville Chamberlain, would go down in history as "The Great Peacemaker" who saved the world from tragedy.
Instead, Chamberlain's actions brought about the very war he sought to avoid.
Churchill actually chose an insect other than termites to symbolize Chamberlain's appeasement problem -- the more biblical locusts. Years later in his memoirs Churchill described his failed efforts in the 1930s to get the Chamberlain and Baldwin governments to prepare the British military and challenge Hitler as "The Locust Years."
At the time the betrayal of tiny Czechoslovakia came about at Munich, Churchill warned of Chamberlain's latest appeasement folly:
The belief that security can be obtained by throwing a small state to the wolves is a fatal delusion.
In terms of the Roberts decision on Obamacare one only has to update Churchill: "The belief that Constitutional freedoms can be maintained by throwing the judicial bone of Obamacare to the wolves of Statism is a fatal delusion."
Just as Chamberlain's once-popular multiples of appeasement concessions in the 1930s finally brought German bombs raining down on London, as sure as God made little green apples there will come a day when the morsel-by-morsel eating away of American freedoms will bring serious damage to the American people. And the realization that John Roberts put his signature to the Obamacare decision may look very much like that image of Neville Chamberlain holding up that fluttering piece of paper that bore the signatures of appeasement.
In the Roberts case resulting in an America where morsel by morsel -- health care today, free speech tomorrow, freedom of religion yesterday and the separation of powers any time one feels political hunger pangs -- American liberty and freedom slowly begins to evaporate. (See: Obama issues executive order on immigration, refuses to enforce the Defense of Marriage Act etc., etc.) And so on. And on.
In fact, one of the more publicized examples of the rise of what Mark Levin calls "Post-Constitutional" America has already materialized. That would be the Obama-run Department of Health and Human Services demanding the Catholic Church give up its religious liberty to satisfy government regulators. This has, of course, resulted in the Church suing the government in a defiant effort to stand-up for what it correctly believes is an attempt by the Obama administration to restrict religious liberty.
Yet, very disturbingly, the assault on religious liberty is only one battle in the much larger long-running war between Statism and the Constitution. With Supreme Court Justices, federal judges, presidents, and legislators all getting into the Statism act.
In fact, the decision made by Chief Justice Roberts to appease the Statists by devising a convoluted interpretation of the taxing power is reminiscent of the legal gyrations used by Chief Justice Roger Taney in the 1857 Dred Scott decision. As former Reagan Supreme Court nominee Judge Robert Bork Taney reminds in The Tempting of America: The Political Seduction of the Law, Taney, a slaveholder himself, sought "to prove that the right of property in slaves was guaranteed by the Constitution." Bork explains in detail that in fact slave ownership was never a Constitutional right and in fact "is nowhere to be found in the Constitution."
Writes Bork of Taney's obsessive insistence that slave holding was a constitutional right:
He knew it because he was passionately convinced that it [the right to own slaves] must be a constitutional right.
Bork labels Taney's obsession-driven legal reasoning a "momentous sham."
A momentous sham.
A sentiment clearly not all that far removed in the dissent from Roberts' Obamacare obsession, which Justices Scalia, Kennedy, Thomas and Alito memorably labeled as carrying "verbal wizardry too far, deep into the land of the sophists."
The conservative dissenting Justices on Obamacare remind, in fact, of a Dred Scott dissenter, Justice Benjamin Curtis.
Take a look here at these two sentences from a July 2 Wall Street Journal editorial on Chief Justice Roberts. Said the WSJ:
Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.
And all the way back in 1857, 155 years ago, in one of the worst Supreme Court decisions in American history that forever tarnished Chief Justice Taney's reputation, was this from the dissenting Justice Curtis:
To allow this [inserting a right to slavery] to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible -- because judicial tribunals, as such, cannot decide upon political considerations…. They [political considerations] are different in different men. They are different in different men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we no longer have a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.
The drive now, as it has been since at least Taney's time, is to find some way to introduce the Constitutional termites to do the political bidding of Statists. To eat away at the Constitutional liberty and freedoms guaranteed in the Constitution and declared forthrightly in the Declaration of Independence -- all in the name of some Statist political whim of the moment.
For Taney and his fellow progressive Democrats on the Court it was all about judging by race (as it is still with liberals today), specifically writing into the Constitution a right to remove the freedom of blacks.
For Roberts and his alliance with progressive Democrats on the Court, it was creating a previously non-existent legal theory to accommodate the newest Statist political whim -- the individual mandate. Unleashing a veritable army of termites programmed to chew away at the Constitution using the newfound taxing power that Roberts went out of his way to create by literally re-writing the Affordable Care Act from the bench. A decidedly non-judicial function.
Doing all this, according to multiples of media accounts traceable to the Supreme Court itself, for nothing other than a political reason -- to appease the Gods of Statism.
Gods with names like Obama, the New York Times, Senate Judiciary Committee Chairman Patrick Leahy, and heaven knows who else located anywhere from the faculty of the Harvard Law School to the locker room of the Chevy Chase Country Club.
A decidedly losing proposition, as Neville Chamberlain discovered with the end result of his own appeasement obsessions.
As our friend Mark Levin noted in his bestselling Liberty and Tyranny:
… the Statist has an insatiable appetite for control. His sights are set on his next meal before he has fully digested his last. He is constantly agitating for government action. And in furtherance of that purpose, the Statist speaks in the tongue of the demagogue, concocting one pretext and grievance after another to manipulate public perceptions and build popular momentum for the divestiture of liberty and property from its rightful possessors.
These battles -- battles always to fight the Statist's "insatiable appetite for control" -- are most certainly not limited to the courts, with both the executive and legislative branches taking their turns at leading the Statist charge.
But it is the Supreme Court that has frequently been in the lead of the Statist charge, as noted most notoriously with the Dred Scott decision. Levin points out in his classic devoted to the Court -- Men in Black: How the Supreme Court is Destroying America -- that the cases that keep pouring forth from the Court over the centuries have by this point in American history cumulatively resulted in a relentless attempt to remove and override the Constitution and the liberties it represents.
There is, in fact, only one way to stop this.
Statism must be fully engaged and battled, defeated at every turn, and vigorously so. But that defeat cannot be brought about if John Roberts or any other prospective conservative Court appointee believes they are sitting on the Court with some mandate from heaven to appease the liberal conception of the Court's majesty. Which has long since become the liberal chattering class code for taking yet another Court-sanctioned bite out of your freedoms. Your freedoms as explicitly defined in the Constitution of the United States. And likewise victory will not be obtained with presidents and legislators determined to cave in the fight of the day or moment.
Let's end this with a touch of irony.
John Roberts was appointed to the Supreme Court in 2005 by George W. Bush.
Why?
Here's the relevant section of the 2004 Republican Platform that Bush ran on:
Supporting Judges Who Uphold the Law
In the federal courts, scores of judges with activist backgrounds in the hard-left now have lifetime tenure. Recent events have made it clear that these judges threaten America's dearest institutions and our very way of life.
…. We believe that the self-proclaimed supremacy of these judicial activists is antithetical to the democratic ideals on which our nation was founded. President Bush has established a solid record of nominating only judges who have demonstrated respect for the Constitution and the democratic processes of our republic, and Republicans in the Senate have strongly supported those nominees.
Knowing this, John Roberts accepted a presidential nomination to the United States Supreme Court. When the time arrived to look Statism in the eye and just say no, the Chief Justice sought instead to turn into his version of a liberal activist and appease.
In so doing he has now placed himself -- not to mention the Court -- in an impossible position.
As the Court moves forward and other confrontations with Statism's latest attacks present themselves, the Chief Justice will find that a vote in favor of the Constitution will unleash the very attacks he fears -- accusing him of casting his vote to regain the favor of conservatives.
If in fact he continues to play the role of "evolved" liberal activist, he will be seen as thoroughly affirming the notion that he views his role on the Court as to be nothing more than its Politician- in-Chief. And that he does indeed not agree with the president who nominated him, the Senators who confirmed him, the activists who supported him -- and most importantly, the American people who voted for a president committed to nominating someone like…
John Roberts.
Thus damaging the credibility of the Court by rendering it as nothing more or less than a panel not of legal scholars but politicians -- and worse, politicians with an axe to grind. Whether that axe was slavery for Taney or the majesty of the Court for Roberts.
It's too bad.
Neville Chamberlain was never a bad guy, and surely John Roberts isn't either.
But both men made a critical mistake. They both saw their very different jobs -- Prime Minister of Great Britain and Chief Justice of the United States -- through the very same lens.
Appeasement. Pacifying the other guy at the expense of First Principles.
It didn't work in 1938 for Neville Chamberlain.
It will not work in 2012 for John Roberts.
And in the latter case, both the Supreme Court -- and America -- will be the loser.
Because in the end, this decision was a momentous sham.
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To read another article about Obamacare, click here.
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To read another article by Jeffrey Lord, click here.
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