Tag: Alito

Categories
judiciary Ninth Amendment rights Tenth Amendment federalism

Too Respectful of Congress?

In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.

Yes, the judicial review and nixing of DOMA regarded a tax case.

The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.

The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.

Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.

It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.

This is Common Sense. I’m Paul Jacob.

Categories
ideological culture U.S. Constitution

Potted Presence

The State of the Union Address has become political, said Justice Alito last week, so he will follow the lead of Justices Scalia and Thomas and not sit in Congress while the Commander in Chief intones his annual duty.

Last January, Alito objected to President Obama’s little stab at the Supreme Court when the prez decried the Citizens United decision. Obama said that the Court had “reversed a century of law” and would “open the floodgates of special interests … to spend without limit in our elections.” Alito mouthed the words “NOT TRUE.” 

And Alito was right. The decision certainly did not overturn a century of law. Not even a teensy bit … Well, maybe a teensy-weensy bit, if we count Progressive’s wishes to run everything by bureaucracy and “experts.” (It’s worth remembering that Progressives had a populist wing, supporting initiative and referendum a century ago.) The Citizens United case was about the unfortunately successful censorship of a movie. About a Democrat, Hillary Clinton.

So you can see why politicians — especially, these days, some Democrats — might oppose free speech around election time. The better to control the opposition.

No wonder Alito won’t “be there in January.” He doesn’t want to serve as a “potted plant.”

Congress, of course, takes occasion to seem “potted” in another sense. Amidst congressional applause and shouts, there’s scant room for reason.

Our third president, Thomas Jefferson, merely sent his report to Congress. Obama should, too — and save Alito RSVP duty.

This is Common Sense. I’m Paul Jacob.