Notes on Scalia’s Dissent in Sebelius (Affordable Care Act)

I don’t consider Scalia to be at all the intellect he’s cracked up to be. Instead, he reminds me of an ignorant priest and boxing coach at a Catholic high school circa 1965.

Here’s two real gems from his dissent.

Regulate, Schmegulate, to Regulate is to Rule, Fool

“That understanding is consistent with the original meaning of “regulate” at the time of the Constitution’s ratification, when ‘to regulate’ meant ‘[t]o adjust by rule, method or established mode,’ 2 N. Webster, An American Dictionary of the English Lan- guage (1828); ‘[t]o adjust by rule or method,’ 2 S. Johnson, A Dictionary of the English Language (7th ed. 1785); ‘[t]o adjust, to direct according to rule,’ 2 J. Ash, New and Complete Dictionary of the English Language (1775); ‘to put in order, set to rights, govern or keep in order,’ T. Dyche & W. Pardon, A New General English Dictionary”

What Scalia misses is that dictionaries didn’t exist, in the main, until Samuel Johnson’s Dictionary of the 18th century because the ruling and scholarly elite felt no need for them.

They were demanded by the rising middle class anxious to spell, pronounce and use words correctly and unlike Shakespeare, profoundly and rather Puritanically opposed to using neologisms or existing words creatively…and unlike Shakespeare unwilling to spell “incorrectly”.

They became generations of schoolmasters who stifled any form of creativity in student writing.

The founders as members of America’s intellectual elite did not need dictionaries. This is because, as my own experience has shown me, the best way to learn new words in one’s own language or a foreign language is to simply stumble through a quality text as best one can, rarely consulting a dictionary. This is what I do when in the hospital I read Poussin’s letters.

The other way the Founders learned the meanings of words was their education in classical languages, especially Latin, and the English word regulate’s root is a Latin word that means, not to adjust according to a rule but simply to RULE.

In Roman times, ruling meant making up the laws, especially after the fall of the Republic, and the Founders knew this. They knew that government would not only have a natural (and often pernicious) habit to make regulations, but also that this was a necessity at times. It is a major reason our Constitution is based, not on supremacy of people or states, but on checks and balances.

Regulate to Madison meant not only to adjust according to the rule, it meant making the rule. Madison, in the Federalist, spoke admiringly of Britain making her Royal Navy a “nursery for seamen” that created Britain’s mercantile fleet by way of training men and boys aboard warships, and this meant defining what was a Navy, and what was a merchant marine.

To say that the regulator cannot define the scope of what’s regulated (here, Commerce) flies in the face of common sense.

A Commerce Counter-Example

“To be sure, purchasing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.”

That fat thug Scalia is WRONG. When the ordinary police power of the state compels the criminal through the parole system to get a frigging job, it is compelling the existence of a new form of commerce.


5 Responses to “Notes on Scalia’s Dissent in Sebelius (Affordable Care Act)”

  1. Amie Baumgardner-Miller Says:

    Forcing Felons into the job market is not analogous to forcing people who are not felons to purchase a product. Felons are already regulated by the State. Once a Felon finishes his/her parole requirements, the State cannot exert its force over him/her.

    • spinoza1111 Says:

      What is with this overuse of the word and concept “force”? It plays no role in the thinking of the Founding Fathers; where it occurs in the Federalist Papers, it is mostly about “foreign force and influence”. Government force is presumed benign owing to separation of power.

  2. spinoza1111 Says:

    On Roberts’ reading, nobody is being forced. Instead, the non-purchaser is being taxed, Constitutionally to Provide for the General Welfare which is harmed when clinics and then hospitals go dark. The tax is less than 1% of AGI according to my information and thus doesn’t force you to do anything. No criminal or other liability to associated with non purchase. ACA’s mandate is therefore a tax which is fully credited if you buy insurance, which is something from which you benefit, especially when it provides for preventative tests.

    Indeed, the loud claims of being “forced” which have reached “the speed of insanity” today remind me of nothing so much as the ravings of a patient in a dysfunctional family in complete DENIAL.

    I blame myself as much as anyone for believing that just because I could run at sixty I was immortal, but this is a typical American gesture in which we always expect more. As is documented here in this blog I have learned a few things since May 2012.

    One is that I’m not immortal and should have had coverage, or, failing that, availed myself as a Hong Kong resident of any low-cost tests available such as colonoscopies.

    It is insane to talk about “freedom” to destroy a public park’s health benefit by making it into a smoker’s hangout. It is likewise insane to yap about freedom when in fact most of the yappers are antitheses of free people and are instead slavish little clerks afraid to show any feelings on their little clerk jobs lest they get fired summarily.

    They talk big about Obama in mere compensation for the misery and meaninglessness of wasted lives that end in emergency rooms after years of denial. They have been used since Truman to destroy women’s health, children’s health and men’s health, not only by making medical insurance and medical care unavailable to the poor but also by destroying public health, especially in the initial response to HIV and continuing in cancer at epidemic rates.

    Don’t talk to me about how you’re forced to do anything. Spare me.

  3. You sir, do not understand the first thing about constitutional law. Your commerce comment is completely inane in the context of federal law. The federal government does not have the Police Power. Not even the most liberal justice would argue that the federal government has somehow acquired the Police Power since its inception. The question is not “can a government force me to buy health insurance?” but rather “can the federal government force me to buy health insurance?” So before you go off about “that fat thug Scalia”, stop to think about whether you are qualified to even begin to address the subject.

    • spinoza1111 Says:

      Gee, what’s the police power? If you mean monopoly of force then the Federal government’s executive branch most certainly enjoys this. The intent of the Constitution was to create this monopoly in a situation where many Americans believed, falsely, that the entity which had unified the states was not a new nation.

      The use and overuse of the word “force” by modern-day conservatives is indicative. Ever since the late Fifties and the emergence of the John Birch society, conservatives have used strange weakling words as if they were the nice old lady they’d often defend.

      The “force” in the case of the Affordable Care Act? You’re billed for a tax you don’t have to pay. That is, you can under Hobbes’ (and Locke’s) doctrine of “rights” in Hobbes’ state of nature do or fail to do anything you want … as long as you have the heart to accept or resist consequences.

      As to that fat thug Scalia. The founding fathers clearly believed in an evolving Constitution. Cf Gordon Wood, THE EMPIRE OF LIBERTY. George Washington was concerned that Americans, to understand AND EVOLVE their Consttution, have something close to the reading comprehension and writing abilities of the signers and drafters of the Constitution.

      The Founders were by the standards of the day “liberal intellectuals”, broadly educated at Harvard and what was known then as “The College of New Jersey” in Princeton. As such, they had command of the Latin and Greek foundations of the English syllable, word, and sentence. George Washington wanted to use part of his fortune to fund a national university that would make this level of education broadly available but Southern congressmen claimed that merely funding a national university was not permitted by way of explicit language in the Constitution.

      But this language can be used at-will as that fat thug Scalia uses it to support an ideological program. If you look at the fat thug’s decisions you’ll discover that they conform, not so much to a single reading of the Constitution, but to his ideology: he supports corporate power and seeks to close off avenues of appeal that the Warren court, in its reading, provided the ordinary person.

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