Did you know?

The Patriot Post is funded 100% by its readers, avoiding the influence advertisers and special interest groups impose on other publications. Help us stay front and center in the fight for Liberty and support the 2020 Year-End Campaign.

James Shott / Jun. 30, 2015

Thoughts on SCOTUS: Same-Sex Marriage and the Affordable Care Act

Following the American Revolution when the new nation realized it needed a new controlling document, it replaced the Articles of Confederation with the U.S. Constitution, under which the states had significant independence from the federal government. The new government had a brilliant and unique design that included three co-equal branches, each with its own specific duties, limited authority and a system of checks and balances so that no one branch could become dictatorial.

Mentioned first, the Legislative Branch is the rule-maker, the single branch authorized to make laws. Next, the Executive Branch is charged with administering and enforcing the laws that Congress passes; and the Judicial Branch was to be the referee that made sure that the actions of the Legislative and Executive Branches comported with the dictates of the Constitution, as Alexander Hamilton said, to determine whether laws passed by the legislature were consistent with the fundamental and superior law of the Constitution. And Chief Justice John Marshall, in weighing the validity of a provision of the Judiciary Act of 1789, declared “It is emphatically the province and duty of the judicial department to say what the law is.”

Today we see that the Judiciary has become politicized, putting Constitutional concerns on the back burner, as demonstrated by two decisions by the U.S. Supreme Court last week.

First, the Court turned plain language and constitutional law on its head, for the second time, to deny challenges to the Affordable Care Act (ACA). And then it redefined what marriage has been for centuries.

The purpose here is not to argue against same-sex marriage or against whatever few good things may have resulted from the ACA, but to argue for proper judicial behavior in regard to interpreting Congressional acts.

Contrary to the popular notion that the Constitution is a “living document,” the meaning of which changes in response to the prevailing winds of popular societal notions, the Constitution set forth principles envisioned by the Framers as valid for the ages, and which ought to be interpreted as such. Otherwise, what means one thing in 1795 could mean something totally opposite in 1895, and then completely different from either meaning in 1995; the law being blown about on an ever-changing sea.

In the first case last week, Chief Justice John Roberts, voting with the majority, opined: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” Had he not redefined a “penalty” as a “tax,” the ACA would have overstepped its power in regulating interstate commerce. Last week, the Chief Justice again voted to correct flaws in the law by deciding that words don’t really mean what we thought they meant, saving the law’s constitutionality for a second time.

In his scathing dissent of that most recent ruling, Justice Antonin Scalia wrote: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it [actually] means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.” “Words no longer have meaning,‘” he wrote.

Further, the Constitution does not provide for the Supreme Court to correct errors in Congressional acts so that they pass constitutional muster. Congress must fix its own mistakes.

Chief Justice Roberts is thought to have been more concerned with trying to protect the Court’s reputation by not overturning a piece of popular legislation, rather than observing his duty to uphold constitutional law.

And last week the Court also voted to redefine what marriage is, with Justice Roberts returning to proper judicial conservatism, voting with the minority this time.

Nothing in the Constitution requires or allows the Supreme Court to redefine marriage. Marriage is a social/cultural construction that has stabilized the family as a bulwark social institution for thousands of years. The court imposed its judgment about a policy matter that should be decided by the American people through their elected state representatives, as provided for by the Tenth Amendment to the Constitution. The definition of marriage had already been broadened by 34 states, which is proper. If some states decide not to change that definition, so be it.

Chief Justice Roberts, who twice abandoned constitutional requirements in finding the ACA to be legal, noted the following in dissent about the same-sex marriage ruling: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

The Chief Justice properly noted the absence of constitutional authority in the same-sex marriage case, but somehow did not understand that the separation of powers prevents the Court from repairing the work of the Congress, which behaved horribly in creating the Affordable Care Act.

If the people can no longer rely on the Supreme Court to objectively evaluate acts of Congress and the Executive, we are doomed.


James Shott is a columnist for the Bluefield Daily Telegraph, and publishes his columns on several Websites, including his own, Observations.

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2020 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.