What? The Magic Words Aren't Working!
The awful truth is beginning to dawn on the left. The magic words on which they have relied to make government grow may not work anymore. The consequences could be catastrophic for progressives. So it isn't hard to understand why the progressives would visualize a Supreme Court ruling against ObamaCare as "unprecedented."
The case of Wickard v. Filburn is one of the most ludicrous decisions in the history of the Supreme Court. Secretary of Agriculture Wickard attempted to enforce the Agriculture Adjustment Act (AAA) of 1938, which set quotas on the amount of wheat put into interstate commerce and established penalties for overproduction. The secretary levied a fine on Roscoe C. Filburn for exceeding his quota despite the fact that none of Mr. Filburn's wheat was sold outside his state, and the portion sold (he used some himself) did not exceed the quota. The Supreme Court ruled in wartime 1942 (overturning a lower court ruling) that Congress could regulate the production of wheat intended for personal use and not placed in interstate commerce. In other words, the court defined non-commerce (personal consumption) as interstate commerce.
Thus, it is not surprising, then, that the lawyer arguing for ObamaCare might expect the court to redefine a non-tax as a tax (wink). After all, the court's predecessors redefined non-commerce as interstate commerce. Fortunately, the justices didn't seem to buy it.
From the 1942 ruling on, the progressives discovered that all they had to do was simply repeat the magic words, "The Commerce Clause," and the courts would approve nearly everything the Congress wanted. With the oral arguments on ObamaCare, the left had every reason to expect the same result they had seen for the last 70 years. Any other result for them would of course seem "unprecedented."
Another reason why the progressive sees an overturn of ObamaCare as "unprecedented" is because the Court may actually consider the Constitution more important and undo the legal precedent (overturn, or "unprecedent" the precedent). Once a court ruling like Filburn sets a "precedent," the words in the Constitution are tossed into the background. It is almost as if precedent erases portions of the Constitution. To the extent that that happens, we become not a nation of laws, but a nation of men who have ruled contrary to the law.
What has truly been "unprecedented," compared to the first 150 years of general adherence to the principles of the Constitution, is the massive growth and intrusion of the federal government based largely on the three magic words. The abuse of the Commerce Clause has become so entrenched that it is likely that several of the Supreme Court Justices will rule that individuals can be forced into commerce they don't want.
What is truly "unprecedented" is a 2,700-page coercive law delegating the powers of Congress to the executive branch.
Even a cursory reading of the Founders' writings and the Constitution should be enough to understand that this is not what the Founders had in mind. In fact, it is precisely what the Constitution was supposed to have prevented. The Constitution is for the most part clearly written and does not require a law degree to be understood. The law degree seems to be needed to pretend that we are still adhering to the Constitution.
Some progressive members of the Supreme Court do not seem to hold the Constitution worthy of adherence. When Obama-nominated Elena Kagan was dean of Harvard Law School, she dropped the requirement that Harvard Law School students study constitutional law. As was widely reported, Justice Ruth Bader Ginsburg stated in an Egyptian TV interview that "I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012."
The same Supreme Court justice took the following oath of office:
I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
The justices who ruled against Filburn had taken the same oath.
Had the ghost of Roscoe Filburn watched the oral arguments on ObamaCare, he might have thought the magic words were no longer working, having been stretched to the breaking point. That is exactly what the progressives are afraid of.