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Thursday, July 2, 2015

The Benedict Option, or Benedict Arnold Option?

The Benedict Option, or Benedict Arnold Option? [+video]

Last week, the Supreme Court redefined both liberty and marriage, and opened the door to punitive taxes, crippling lawsuits and criminal prosecutions against orthodox Christian churches, schools and hospitals. During President Hillary Clinton’s first 100 days in office, the U.S. would likely move toward a two-tier religious system, with faithful churches banished to the fringes of society along with the white supremacists. And the media will present it as progress: Love has won, now it’s time to shoot the prisoners.

That’s not the script for a paranoid, low-budget Christian film. It’s what many progressives plan. Pundits are already calling for the end of tax exemptions for churches — not on a fringe website, but in TIME magazine. That same magazine features a call by Rod Dreher for conservatives to drop our cooperation with Republican politicians who promise to protect us from persecution. Instead we should withdraw into apolitical enclaves of like-minded fellow believers and hope that the gay totalitarians and their fellow travelers decide to let our kids alone.

So is it time to give up, hide, and hope for the best? Should we throw down the weapons we still have, which God provided us? Shall we surrender America to the sex radicals, and leave our children with none of the liberty that we inherited from our parents? Is it moral to abandon our fellow citizens and neighbors to the ever-escalating demands of the secular culture of death? Is it time to dissolve all activist divisions of the pro-life movement, which has made so many strides, and accept that abortion on demand, for nine months, for any reason, will be legal here forever?

All of these outcomes would flow from the misnamed “Benedict Option,” favored by Dreher, who for years has advocated a sort of apolitical Christian separatism. I am not surprised that the same magazine that publishes a piece from a writer wanting to crush the churches with the tax code has given Dreher a venue to counsel surrender. Any conquering army hopes to sow defeatism in the enemy. Remember all those leaflets in Arabic we dropped on Saddam’s troops in 2003, promising good treatment and hefty rations for those who defected? Think of Marshal Petain’s appeal to the French Army in 1940 to throw down their guns and collaborate. The Germans were happy to broadcast it.

This is no time to back down. We still have legal options, including The First Amendment Defense Act, which would strip the federal government’s power to wield such penalties. A major candidate and big-state governor, Scott Walker, has called for a constitutional amendment to reverse the Court’s deranged decision. Christians retain political clout, in the upcoming Republican primaries. The candidates, as good politicians, are watching to see how much fight is left in America’s Christians: Will we make religious liberty a litmus test for our support? Will we set aside our differences on other issues — from national defense to immigration policy, from poverty programs to Obamacare — and unite as a powerful bloc in defense of our children’s freedom of faith? Some politicians, including Walker, Ted Cruz, and Mike Huckabee, appear to be stepping out and offering to fight for us. Others, like Jeb Bush and Rand Paul, are kicking back and counting on our passivity and exhaustion.

Should We Find Some Hole to Hide In?

I understand battle fatigue. I started exercising Christian citizenship thirty-nine years ago, when at age 11, I rang doorbells collecting signatures for New York’s Right to Life Party. I have been active in one way or another ever since — earning ostracism at Yale for defying gay-rights groupthink; facing down most of my grad school professors across the picket line at an abortion clinic while one of them recorded each of our faces with a video camera; leading a successful fight (with a budget of $100) against a state-wide multiculturalist pro-gay brainwashing mandate for the entire LSU system; and so on, ever since. I am sure that many readers have similar stories to tell.

And like you, I am bone tired. Worn-down, frustrated and tempted to curl up in apathy and just binge-watch Daredevil on Netflix. But as that show reminds us, “The world is on fire.” I won’t just hunker down and watch Rome burn. I am not fireproof and neither are you. Nor are your kids. You may decide that you’ve had enough, that you’re tired of worrying about other people’s unborn children and their marriages and their intergenerational dependency on welfare programs and the wretched public schools that dumb down their kids and the low-skill immigration that drives down their wages. You’re sick of it all. You just want to hang around with your fellow Christians and live your life in peace. You’d like to find an enclave where you can hide.

There is nowhere to hide, no ghetto so obscure that the gay totalitarians will leave you alone. Think of all the money that Germany spent persecuting a single homeschooling family. Laws like Germany’s are coming here soon, if we don’t fight them tooth and nail. Remember the thousands of bureaucrats who dutifully audited Tea Party groups for the IRS. Soon thousands more will be scrutinizing your church, its school and every Christian organization in the country. The Left has tasted blood, and intends to feed. Even if you piously decide to turn the other cheek, and congratulate yourself on being persecuted for Christ, you have no right to make that decision for your children or your neighbor.

Persecutions Have Consequences

Philip Jenkins’ brilliant The Lost History of Christianity makes for a wrenching read. It chronicles the vast and vibrant Christian churches that once extended from Antioch to China, whose well-schooled believers as late as 1000 AD almost equaled the number of recently baptized Western barbarians. All that is gone now, with the last few brave, abandoned believers cowering on mountaintops hiding from ISIS while the West concentrates on creating “safe spaces” free from “transphobia.”

What happened to the great churches of the East? As Jenkins reports, one church after another lost the protection of the government. At first persecution was mild, and tolerant Muslim or Confucian rulers would sometimes leave breathing space for local Christians. But finally, over centuries, the slow drip of humiliation, of punitive taxes and periodic massacres, ground down all the Christians, till no one was left. Once-mighty monasteries are now dusty masjids, or abandoned ruins. Cathedrals are mosques or museums. Once-Christian cities from Constantinople to Mosul are now almost purged of Christians.

Churches can withstand a lot — even the 60-plus years of Communist oppression in China. And Christ has promised us that the Church universal will prevail to the end. But we know from history that Christianity can be purged from entire regions. Should we invite such appalling circumstances, by retreating to holy enclaves?

It is inhuman to expect generations of Christian families to pass along the faith in wartime conditions. It almost certainly will not happen. God can grant a miracle, but as Our Lord made clear in the desert, we should not test Him by climbing the Temple Mount.

Here let me anticipate and knock down the straw man that Dreher trots out every time he is contradicted: No, it is not enough to simply vote for pro-Christian conservatives. No one has ever claimed that it was. We must witness our faith in dozens of non-political ways, by building strong Christian families and institutions, caring for the poor, sick and dying — exactly the kinds of institutions that progressives intend to co-opt or close, using same-sex marriage as the steamroller in a war on civil society. If we let them get away with that, by abandoning our solemn responsibilities as Christian citizens to defend human rights and the common good, then we act like hirelings and abandon our lambs to the wolves. We will answer for it to the Good Shepherd who laid down His life to save them. (“The Benedict Option, or Benedict Arnold Option?”, originally posted HERE)

Unspeakable: ISIS Has Executed Over 3,000, Including 74 Children

New details are emerging about the nature and extent of the Islamic State's executions, and they are grisly. According to a new report from the Syrian Observatory for Human Rights, ISIS has executed 3,027 people since it established its caliphate one year ago. That number includes 74 children and 86 women.

The charges that ISIS brings against those condemned to death are usually offenses against Islam. These include blasphemy, sorcery, sodomy, spying, and practicing as a Shia Muslim. The bodies of the executed are often brutally put on public display, with their purported offenses listed for everyone to read.

One expert put forth her view of why these executions are so ubiquitous and brutal:

“Underlying all these executions is the apocalypse ideology of the final battle between the believers and the unbelievers,” said Jasmine Opperman, the director of Southern Africa Operations at the Terrorism, Research & Analysis Consortium. “ISIS is using executions to show its followers -- and would-be followers -- that the group is the only true representative of believers, not only in word, but action, which is why executions are featured so prominently.”

This past week, ISIS has stepped up its executions to set an example for conduct during the month of Ramadan. It dealt out three straight days of executions and public chastisements.

On June 30, 11 workers from al-Miadin endured live crucifixion and were forced to wear signs saying "70 lashes and to be crucified for 1 day for breaking the fast in Ramadan." 

The most recent killing spree was publicized via a highly produced video, which showed 15 men being executed in three horrific ways.

ISIS has been active in recruiting children to its cause, sending them to "Jihad School" at young ages and holding commencement ceremonies in terrorist fashion. ISIS not only co-opts and brainwashes children, it even brutalizes them through cage-fighting. The report reads:

“The violent Islamist group appears to demonstrate a particular interest in children, releasing videos of children fighting in cages and undertaking military training,” the Syrian Observatory for Human Rights group said. “The report also details moves undertaken by the group to entice children to join, which include setting up offices called "cubs of the caliphate" that recruit children to fight for ISIS.”

The report also confirms that ISIS has killed 143 of its own fighters. Many of them were fighters who attempted to flee back to their home countries, some of which were in Europe. Most prospective jihadis who leave their home countries understand that it's a one-way trip, as they are expected to give their lives to the caliphate.

This Just In: America Still Racist

This Just In: America Still Racist

Doris O'Brien

When I listen to the rhetoric of the American left, I wonder whether their counterparts in other countries are as adamant about blaming citizens for the sins of their forefathers.

Do Australians sit around navel-gazing because their country was settled by deported criminals? Does today's generation of Germans wear hair shirts for the atrocities against humanity committed by their forefathers within my lifetime? Do young Turks engage in self-flagelation over the genocide of 1.5 million Armenians a hundred years ago? Do the Japanese constantly remind themselves that their country launched a sneak attack against America that killed thousands?

I think not.

Yet at every turn, liberals are raking up the bitter embers of America's past, rubbing our collective nose in them, and using them as pretexts for sanctimonious harangues about our Evil Empire.

There is a biblical proverb that says, "The fathers eat sour grapes, but the children's teeth are set on edge." The usual interpretation is that the innocent should not suffer for the wrongdoing of others. But for liberals, the moral seems to suggest that guilt continues interminably and is never sufficiently atoned for. The loss of a generation of men in the Civil War, for example, was not punishment enough.) This contradicts the democratic principle that frees citizens from becoming fettered to the shame of others.

But in the advancement of their broader negative view of America, liberals apply a harsher yardstick. It has become popular, for instance, to browbeat Americans over the establishment of Japanese internment camps during World War II. And to reprimand us for dropping atomic bombs on Hiroshima and Nagasaki. But the WWII vet sitting next to me at a luncheon recently didn't see it that way. He was fighting in the South Pacific at the time and figures that bringing a warned Japan to its knees saved his life.

Still, America's faults are finding their way into history books at the exclusion of her successes.

The latest self-serving guilt trip laid on America is the charge that we are a racist nation. President Obama has even said it is "in our DNA." This is a calculated part of the "identity politics" by which liberals hope to divide America and conquer the White House for the Democratic Party in 2016.

Of course, the vast majority of Americans' ancestors weren't even here when our nation was half-slave, half-free. Many of them were enduring harsh treatment themselves, lured to America not by the black marks on her past, but by the bright hopes for her future. Countless Americans wouldn't be alive today had they not found sanctuary here.

As expected, Hillary Clinton is taking full advantage of the tense situation. She whines that "after all the progress we've made," things still remain pretty grim in America. Not that any home-grown shortfalls ever stopped her from lecturing on moral issues to those in the rest of the world. Even before she became secretary of state, Hillary went to China to stridently meddle in their one-child policy, which she insisted took away a woman's precious right to choose. (Imagine! Hillary the anti-abortionist!)

President Obama was quick to conclude that the actions of a deranged drug-addled young man in Charleston conjured up an image of the South that is every bit as violent and vengeful as it was in the days of slavery. Yet anyone who has traveled there knows otherwise. On the riverfront in Savannah, my husband and I were approached by a black minister who invited us to be guests on his congregation's gospel river cruise, explaining that a couple of parishioners had not shown up.

The swift and heartfelt healing after the mayhem in Charleston refutes our president's inappropriate comments. He did condescend to admit, however, that progress has been made in race relations in America…the kind, I suppose, that led to his being elected twice to the presidency.

Yet there are still professional race-baiters who enjoy milking an episode into an epic generalization. Tougher gun control is always an issue pushed to the fore in times of tragedy, except in the case, say, of the Boston marathon terrorists, whose weapons of choice were lethal homemade bombs.

Prolific liberals like MIT's Noam Chomsky have long been setting generations of Americans' teeth on edge for the sour grapes harvested in our country's past. Specializing in linguistics, Chomsky takes offense even at certain words and phrases in the American English vernacular. Not the usual pejorative that Obama uttered, but more subtle allusions, such as the "Tomahawk" missile, which Chomsky feels mocks the race Americans humiliated and purged from their own land. He says it would be similar to Nazis describing their bombs as "Jews."

Appeasing American Indians is hardly a political game-changer. But it is another layer, along with immigration, in the "white privilege" argument that Democrats will hammer home in the next campaign. Tarring America as a racist nation could, as they see it, solidify minority support. By harping on this incendiary message for the next sixteen months, Democrats are betting that it will turn fewer Americans off than it will turn out to the polls.

A recent article in The New Yorker called racism "endemic" in America. The definition of the word is "natural or characteristic of a specific people or belonging exclusively or confined to a particular place." The other night I took an Uber car home from a party. When we approached my neighborhood, the driver asked me if there were many blacks living there. Ordinarily, I would have been stunned by such a question. But the charges of racism are so much in the news and in our minds that we are almost cajoled into a "conversation" wherever we find it.

Now, when I walk along the street, I have begun to wonder about the minorities around me. Do they see me – if at all – as just another one of those old white Americans who don't much matter anymore? Do I represent some kind of "white privilege" that they long to wrest from my descendants by becoming the majority in our country? Will their children grow up loving America and willing to protect her?

Obama claims that before he became a recognized figure, white people would cross the street when they saw him and Michelle approach. Unfortunately, there are those who believe such fabrications, because they welcome perceived victimhood and the perks it demands. Besides, they know there are no reprisals for hating America. But those who pick constantly at America's wounds to see them bleed anew weaken our chances of gaining cooperation from other nations in addressing problems such as terrorism and the threat of Iran's nuclear capacity. Chomsky, in fact, considers George W. Bush a far worse menace to the world than Osama bin Laden ever was.

Painting America as a racist entity, skewed unfairly along social, economic, and gender-driven lines, justifies and emboldens those who would do us harm. As the Fourth of July approaches, there are warnings of possible terrorist activities that could mar the observance of the special day that brings together all Americans – or at least those who know a good deal when they see it.

Another Chance for SCOTUS to Get It Right on Affirmative Action

Another Chance for SCOTUS to Get It Right on Affirmative Action

Larry Creech

The U.S. Supreme Court announced on Monday June 29 it will revisit the constitutionality of the admissions plan at Texas's flagship university. The grant of review of Fisher v. University of Texas at Austin in the use of race in admissions decisions could strike at the heart of affirmative action, or more precisely, racial segregation in education, as it should. The Equal Employment Opportunity Executive Order issued by President Kennedy in March 1961 had no verbiage related to education or college admissions. This divergence from law began with the Regents of the University of California v. Bakke , 438 U.S. 265 (1978) (https://www.law.cornell.edu/supremecourt/text/438/265). It was a landmark decision by the U.S. Supreme Court modifying the existing labor law regarding affirmative action to allow race to be one of several factors in college admission policy. Even though the ruling was overturned when sent back to the lower courts, university administrators throughout America have since used the ruling to socially engineer universities to meet their progressive agenda. Contrary to being a progressive agenda, it is just the opposite. It places American schools, and by extension potential college students, on a path to chaos and failure.

Gregory L. Fenves, the president of the University of Texas at Austin, said in a statement issued by the University of Texas,

"Under the Supreme Court's existing precedent, the university's commitment to using race as one factor in an individualized, holistic admissions policy allows us to assemble a student body that brings with it the educational benefits of diversity for all students."

If Fenves considered the University's policy of racial discrimination in admissions as a demonstration to young people who are preparing for college that all their hard work can be rendered meaningless by bureaucratic bigotry, he hit the bull's eye. Fenves meaningless rhetoric is designed to ignite fervor among those who do not meet the qualification requirements for admission yet believe they have some legitimate entitlement to displace potential students of different races who have worked hard to achieve their goal. 

The holistic and somewhat secretive approach stated by Fenves that brings the benefits of diversity to all students has never been completely defined. That may be attributable to Fenves membership in the secretive, non-scholastic Quill and Dagger Society. The Quill and Dagger Society at Cornell University has not only a long history, but a long history of racial discrimination. Perhaps the secrecy and discriminatory policies President Fenves has implemented at the University of Texas are vestiges of old prejudices developed in secret at Cornell.

Fenves has never explained how qualified students who were denied admission by this racial discrimination benefit from diversity. What is the message being sent to current students who will become leaders in government and business? Who gets to decide what culture is at the University of Texas, and whose culture gets preferential treatment? Fenves's language alone makes one wonder if he was drinking the same tea Justice Sandra Day O'Connor was drinking in Grutter v. Bollinger, 539 U.S. 306 (2003) when she presented the majority opinion with the now infamous statement that the discrimination must have a twenty five year durational limit.

I believe that the Law School's program fails strict scrutiny because it is devoid of any reasonably precise time limit on the Law School's use of race in admissions. We have emphasized that we will consider the planned duration of the remedy in determining whether a race-conscious program is constitutional.

Exactly what does race-conscious mean? Race was officially used by then-Secretary of State Thomas Jefferson in the first census in 1789 in order to apportion States' representatives to Congress. He believed it was necessary to determine who were counted as slaves and freed men, since they were also counted in the census. This segregation of Americans continues, visibly in the Department of Education where metrics collected have racial components, yet the Department of Education's definition leaves one wondering what race they belong to. To date the Department of Education has not issued any color coded cards, or spectrum analyzer test to determine one's race. To read the Department of Education's definition of race leaves one equally confused.

German Fulbright Exchange student Ilke Bauer said when confronted with race in college admission forms in America:

As soon as I arrive, it starts: the first form to fill out, and in the space for giving information about oneself says: Race. ...That would not be the only time during my 18 month stay in the U.S.A. that the issue of race would come up... questions about what one is and to what group one belongs seem to have enormous importance here.... I am very irritated by the relentless inclination among American to differentiate people according to their race or ethnicity. Race: the very word makes me wary, because I immediately associate it with Nazi Germany....1

American education struggles with superfluous foolishness such as this when there are real problems to be addressed. Affirmative action in education was not articulated in Kennedy's Executive order but advocates of racial preference, i.e. racial discrimination, over the years hijacked the term and through political maneuvering now claim it as law. It's not...just the opposite. Discrimination by any name is the same. To make admission decisions by race in any manner is discrimination, regardless of the cultural inclusion arguments made by advocates.

To agree and accept the issue of racial prejudice in any manifestation in education is to accept that members of certain racial groups as defined by the Department of Education do not have the intellectual capacity to compete without preferences. Advocates are in effect telling some students that because of their race they may not be accepted into some colleges because vacancies are being filled by a discriminatory preference plan. It is also sending a message to African-American potential students at the same time telling those receiving the preferences do not measure up and need entitlements.

If the goal is to do away with discrimination in education, the first step is to do away with segregation in schools. I refer to the racial categorization of students by race as defined by the Department of Education. If there were no education metrics associated with race, there would be no discrimination by race. All students would have to "measure up" in a race blind environment. But for some that is the problem; it would not be possible to distinguish who should receive the entitlements. On the plus side, either entitlements would either go away or everyone would be entitled. 

While administrators such as Fenves are feted with honors, financial bonuses, and awards for being progressive and forward thinking, the victims are young people; potential students who will be America's leaders tomorrow. What lesson is Fenves teaching? What and whose culture is he perpetuating and who made the decision which culture is the selected one? More to the point, can Fenves even define culture as it applies to the policy he advocates? Unfortunately, tomorrow's future leaders may or may not be qualified if Fenves's policy remains, while young people who do meet the qualifications and should be America's future leaders are turned away.

If America really wants better race relations, and President Obama continues to insist after seven years we need to have a serious discussion about race, then let the conversation happen. Let it start with this case where it really means something. Let's give our young people, our leaders of tomorrow the advantage of not burdening them with the disadvantage of government institutionalized racial discrimination. Do away with race as a metric. Eliminate affirmative action in all colleges as a shameful discriminatory action. Unfortunately, as long as racial conflict remains a money-making industry for charlatan activists and bureaucrats such as Fenves and the University of Texas, America is doomed to the eventuality of progressive racial discrimination.

President Obama speaks of eliminating discrimination in all its manifestations; Justice Kennedy wrote eloquently of elimination of discrimination in the majority opinion requiring states to allow same sex couples to marry. Perhaps the President and the Justices can extend the same consideration to America's youth.

Larry Creech holds a BA and MA in Humanities and Liberal Studies from Georgetown University where he is currently preparing to defend his Doctoral dissertation in interdisciplinary studies.

1. James T. Lamiell, Beyond Individual and Group Differences. (Thousand Oaks: Sage Publications, Inc., 2003) 300. http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin-2/?wpmp_switcher=desktop

Obama Channels Reverend Wright

Obama Channels Reverend Wright

Colin Flaherty

After 11 years of hiding and hinting, the real Barack Obama is back.

The guy who spent twenty years listening to Reverend Jeremiah Wright preach the gospel of racial hostility has decided it is just too much trouble to keep his black-on-white resentment all bottled up.

So the president put it on full display last week at the eulogy for the pastor who was a victim in the Charleston mass murder.

And what we saw was quite a bit different than the fresh-faced, new-vision, 'put race behind us' guy who electrified the country with his speech to the Democrat National Convention in 2004.

Remember that guy? "This is why you go into this business, to watch a speech like that." said David Brooks on PBS immediately following the speech. "It's a shame the networks aren't covering this tonight because they just missed a bit of history."

"He lit it up," said Mark Shields

And on and on and on. A post-racial media star was born.

When he made his national debut, Obama was still a State Senator from Illinois, getting ready for a run at the U.S. Senate. And despite what he was hearing in church, racial resentment appeared to be the farthest thing from his mind:

"There is not a conservative America, there is not a liberal America, there is the United States of America," he told an excited crowd assembled to nominate John Kerry to be the President. "There is not a black America and a white America, and Latino America and Asian America. There's the United States (dramatic pause) of America."

The crowd was on its feet. Even Jesse Jackson.

That was then. "This is now: For too long we have been blind to the ways that past injustices continue to shape the present," he said last week as he preached over the rose-draped coffin of the fallen pastor in Charleston . "Perhaps we see that now."

That was now. This is then, 2004: "Tonight is a particular honor for me because, let's face it, my presence on this stage is pretty unlikely. My father was a foreign student, born and raised in a small village in Kenya. He grew up herding goats. Went to school in a tin roof shack. His father, my grandfather was a cook, a domestic servant to the British. But my grandfather had larger dreams for his son. Through hard work and perseverance my father got a scholarship to study in a magical place: America, that shone as a beacon of freedom and opportunity to so many who had come before."

Eleven years later, Horatio Alger is gone; replaced with Reverend Wright-style rhetoric with news from a darker America, where "racial bias can infect us even when we don't realize it," as he said in Charleston.

This is Reverend Wright's America: Those committing black-on-black crime are "fighting the wrong enemy," Wright said. From the pulpit.

WND published pages of these quotes: Wright called on God to damn America -- or "white America, U.S. of KKKA," as he refers to the nation in another sermon -- "for killing innocent people … for treating us citizens as less than human."

But there was no talk of that in 2004, when Obama reveled in his newfound status and even his funny sounding name. "Baraak meaning "blessed," he told us. "Believing in a tolerant America, your name is no barrier to success."

In the intervening 11 years, something happened, because today, a name can contribute to the racist and "subtle impulse to call Johnny back for a job interview but not Jamal," said the President in Charleston.

The funeral crowd loved that one.

In 2004, he claimed that America was such a great country that "in no other nation on this earth is my story even possible." A place where his "parents shared an abiding faith in the possibilities of this nation."

"A place where you don't have to be rich to achieve your potential."

"Tonight we gather to affirm the greatness of our nation."

The same nation his wife was ashamed of, though she would not admit it for four more years.

Eleven years later, affirming greatness was out, claims of relentless racism were in.

In 2004, crime was all about the "despair" of young people who could not find jobs. Eleven years later, whether Obama was at a Charleston church, a Black Caucus dinner, or a BET interview, the despair is gone, replaced by abusive police who stop people for "walking while black, driving while black." 

All, apparently, for no reason whatsoever.

Ditto for schools: In 2004, he reminded the delegates to the convention that schools were places where black people could make it, if only black students would stop condemning the other black students who excel at their studies for "acting white."

Today, the gap between black students and white students is not about achievement. Or acting white. But racism, holding the black students back. That proclamation comes not from Reverend Wright, but from an executive order, signed by the President of the United States.

In 2004, Obama proclaimed "we are one people, all of us pledging allegiance to the stars and stripes. All of us defending the United States of America."

Eleven years later, Obama accused these same people of "avoiding uncomfortable truths about the prejudice that still infects our society."

Reverend Wright would be proud.

Colin Flaherty is the author of the bestselling book: Don't Make the Black Kids Angry: The hoax of black victimizationYou can find it on YouTube.

When Judges Corrode the Law

JEFF JACOBY

SHUTTERSTOCK

DURING HIS Supreme Court confirmation hearings in 2005, then-Judge John Roberts emphasized his strong belief in judicial modesty. “Judges are like umpires,” Roberts famously said. “Umpires don’t make the rules; they apply them.” If confirmed as chief justice, he promised, “I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

But it was no impartial umpire who authored last week’s 6-3 opinion in King v. Burwell, the Obamacare subsidy case. 

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The specific issue was whether health plans purchased through insurance exchanges established by the federal government are eligible for tax subsidies. Since the law explicitly restricts subsidies to “an exchange established by the state,” the answer should be obvious. But disallowing subsidies in states that refused to establish exchanges might have caused Obamacare to implode. That wasn’t an outcome Roberts wished to risk, so he turned the straightforward meaning on its head. “An exchange established by the state,” he wrote, also means an exchange not established by the state. 

Roberts is hardly the first justice to succumb to the temptation to contort the law’s plain text to generate a desired policy result. Ten years ago, the court infamously ruled in Kelo v. City of New London that private homes could be seized by eminent domain and given to corporate developers. The Fifth Amendment authorizes such takings only when the government needs the land for a legitimate “public use” — for instance, to build a highway. But in a 5-4 opinion by Justice John Paul Stevens, the court decided that “public use” could also mean private use, so long as the new owners were expected to create new jobs or pay more taxes than the dispossessed former owners. In effect, Kelo empowered government to transfer almost any owner’s property to a more powerful private party: exactly what the constitutional language forbids.

The Commerce Clause is another constitutional passage whose meaning has been corrupted by judicial presumption. 

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