The Political War of Wordgames
A political war of wordgames rages on. The latest front has been drawn at the steps of the Supreme Court.
Warning of a "right-wing revolution dressed in judicial robes," campaign strategist Robert Shrum in his March 30 article declared: "The court's conservative wing appears ready to engage in some despicable judicial activism on ObamaCare."
"Judicial activism?" We barely had time to recover from amazement at the provocative use of the term by a liberal before we heard Obama himself utter, a few days later, these remarkable words:
Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint - that an unelected group of people would somehow overturn a duly constituted and passed law.
Although Obama was likely merely echoing similar sentiments expressed by the many leftists with whom he has surrounded himself, some noted that Obama's remarks, as a former constitutional law professor, were rather embarrassing. Others wondered if his choice of words revealed a learning disability. After examining the accuracy of the statements, Peter Wehner painfully noted: "[Obama's] public words are now purposefully bleached of truth."
"Judicial activism" was defined by David Limbaugh in the way most of us have always understood it: "when courts uphold laws inconsistent with the Constitution or overturn laws that are consistent with it -- mostly to achieve a certain policy result."
Shrum and Obama, however, implied that judicial activism happens when courts overturn any law, since all laws are "duly passed." To the uninformed, the phrase rallies righteous indignation against the court's failure to support their hero and his causes; to those who employ any logic at all in their thinking, the Obama definition completely obliterates the constitutional balance and separation of powers.
Thomas Sowell wisely observed: "One of the many ways of lying smoothly is to simply redefine words. Barack Obama is a master at that as well."
The power held by such a master of words was famously described by Wonderland's Humpty Dumpty in Lewis Carroll's Through the Looking Glass. Dumpty's lines have actually been quoted by the court many times in decisions discussing the interpretation, construction, and retrospective application of law. As Dr. Jacco Bomhoff observed, such mastery is troublesome, as it results in "the absolute power that comes with being both legislator and judge."
Empowered by most of the press and liberal academia, Obama is a master, and his words mean whatever he chooses -- even when "[h]e didn't say what he meant...and having said that, in order to avoid misleading anyone, he had to clarify it."
Obama is playing a game of words, and considering his four recent moves under an "Alinsky Strategy" described by columnist P.J. Salvatore, Obama's statement simply answered Salvatore's question of "Who's next?" "Move 5" has Obama pitting "Us" against the "Them" of the Supreme Court. Obama's remark was an intentional "contrived conflict" comprising words in the battle to divide and conquer -- and win an election. According to Joseph Curl:
[Obama's] provably false remarks weren't aimed at Supreme Court justices, but rather at uninformed Americans...The campaign geniuses, the same ones who came up with the idea to run against the much-despised Congress (even though Democrats control the Senate), have decided that deriding the Supreme Court as an arm of the Republican Party is a winning plan[.]
Launching more word-missiles in a strategy to agitate public empathy, Shrum also wrote:
Largely missing from the coverage of the health reform case are the most important consequences of nullifying the law: The tragedy of tens of millions who would again be left without insurance; the plight of young adults now on their parents' policies who would be thrown off; the desperation of those with pre-existing conditions who would be left with no coverage and nowhere to turn; the agony of patients who, because of lifetime limits on their insurance, would see it canceled just before the next round of chemotherapy.
"Tragedy," "desperation," and "agony," oh my! Words intended to tug at hearts instead of appeal to common sense or invite rational discussion.
Over a million words are contained within the thousands of pages of ObamaCare. These words were carefully selected and then constructed into law behind closed doors -- massive regulations written in a way that gives power to bureaucratic masters to define its words and then apply and enforce them. This is the power to mandate that phrases like "women's health" encompass free contraception -- a power with potential so great that "death panels" no longer seem the stuff of fiction.
As Charles Krauthammer noted, "[i]f birth means entering the market, the Congress is omnipotent, authorized by the Commerce Clause to regulate 'every human activity from cradle to grave.'"
"Over the years, 'interstate commerce' became magic words to justify almost any expansion of the federal government's power, in defiance of the Tenth Amendment," argued Sowell. And if the tiny prefix "in" is attached to the word "direct," as exemplified in the famous interstate commerce case of Wickard v. Filburn -- then, as Sowell notes, indirectly, "virtually everything affects virtually everything else, however remotely."
According to Shrum, the Tenth Amendment was "modified into apparent insignificance when the Fourteenth Amendment applied the Bill of Rights across both state and federal law" and is merely the "pet rock of states-righters." He further argued that to invoke the Tenth now "could shred the social safety net and the architecture of social endeavor." In other words, Shrum rails against the limits imposed by the constitutional structure of our republic because they hinder the progressive blueprint. And instead of recognizing states' rights as a primary building block, Shrum writes them off as an insignificant pebble treasured by a few annoying citizens.
According to Shrum:
It took a hundred years to remedy all of this by passing health reform; it could take decades to pass it again if and after a changed Supreme Court reversed an ideologically driven denial of health care as a fundamental human right and not just another product in the market place.
While Shrum hoped that Chief Justice Roberts' comments from the bench "were meant to be provocative, not precursors to a reign of error," the rest of us were encouraged that the court's questions marked the beginning of a reign of correction.
We hope it takes less than decades to reverse the "ideologically driven" damage to our nation -- to the balance of power, to our economy, and to individual freedom and liberty.
A "flexible" Obama second term is frightening in many respects, especially if it results in a court filled with a majority of judges who consistently rule with a progressive political agenda. If that happens, we will truly have fallen into a tyranny of the most dangerous kind -- one cloaked in the appearance of law, where masters of words rule as both legislator and judge.
Judge Andrew Napolitano warned of the danger of an administration that ignores the legislature and the judiciary and consolidates power, in the executive, of all three branches of government. Napolitano's word for that: totalitarianism.
We may well see if a master can redefine that word into something the American people will want to swallow.