Wes Vernon
Will the courts open the door to health care and same-sex marriage as "rights"?
Let America see and hear the oral arguments -- live; also...Copenhagen wrap-up
By Wes Vernon
December 21, 2009

As this column has written, Washington is buried beneath well over a foot of snow and the city for two days ground to a standstill — except for the U.S. Senate. There, the 100 members of "the world's most deliberative body" have been embroiled in marathon sessions to ram through legislation that puts the heavy hand of almighty government between you and your doctor.

But for all the round-the-clock huffing and puffing on Capitol Hill, and for all the uproarious fight over the issue to take place in 2010 when the House and Senate try to reconcile their vastly differing versions of the so-called health "care" bill, the Supreme Court in early 2010 may — in one fell swoop — pave the way for health care as a "right," even though health care is a product. No "right" to health care exists in the actual text of the Constitution. That won't stand in the way of those ideologues who despise the Constitution as envisioned by our Founding Fathers.

High court poised to destroy America?

The Supreme Court has scheduled March 2 as the date the justices will hear arguments in McDonald vs. Chicago. This case involves the Windy City's total ban on handguns. But the possibilities go way beyond that issue. To preserve an intended good (preventing the noble cause of gun rights from being used to destroy the Constitution), attorney Ken Klukowski has filed a brief in the case on behalf of four conservative organizations: the American Civil Rights Union (never never to be confused with its infamous counterpart, the ACLU); Colin Hanna's Let Freedom Ring; Curt Levey's The Committee for Justice; and the Family Research Council.

We here emphasize: It is possible for the court to strike down the Chicago gun ban and do so without destroying the rest of our constitutional framework. As to how that can be accomplished, read on and we will refer you to supporting research material.

The Obama administration is certain to take more than a casual interest in this case — for two reasons.

1 — Speaking out of both sides of his mouth, candidate Obama last year said he endorsed the court ruling striking down Washington D.C.'s anti-gun rights law, but that he also believed the gun ban in his home city of Chicago would and should be upheld. Actually, there is no substantive difference between the two gun bans.

2 — This case is about much more than gun rights. It is a legal powder keg that — depending on how the jurists rule — could tear down the Constitution and open the door for the judicial green light for every Marxist idea the hard left has tried to impose for decades. It is not the least bit trite to say this decision could mean — literally and with no hyperbole intended — the end of America as we know it.

Let America in on this

That is why this column urges the justices to do something they are normally loathe to do — open up the March 2 arguments for the C-SPAN cameras (and the mikes and cameras of other TV and web outlets — including YouTube), and let the people of this nation hear why we just may end up with an America we will not recognize, and let the views on all sides be heard. If this exception to the court's no-mikes rule can be made (as it was to let the public hear live arguments on the 2000 election), surely it can be done (with both mikes and cameras) to accommodate a matter arguably of even farther-reaching consequence. That is no exaggeration. It can open what Klukowski indicates is the ultimate "Pandora's box."

The case

In brief, the question in McDonald is whether the Second (gun rights) Amendment applies to the states as well as to the federal government. Most other portions of the Bill of Rights have been applied to the states through the Fourteenth Amendment — one of the post-Civil War amendments aimed at conferring equal rights on former slaves.

Here's the new twist (please bear with me on this): In this gun rights case, the attorneys for plaintiff Otis McDonald argue that the court should use the Privileges and Immunities Clause of the Fourteenth Amendment, which prevents the states (which include subdivisions such as cities) from abridging the rights of U.S. citizenship.

Also involved here is whether the court is prepared to overrule its 1873 ruling in The Slaughterhouse Cases. If the decision in that case is overturned, Klukowski sees an interpreted license to venture into areas that are not mentioned in the text of the Constitution — thus bypassing the specified constitutional amendment process requiring the assent of two-thirds of both houses of Congress and three-fourths of the states.

McDonald intends to vindicate the right to keep and bear arms (plainly spelled out in the Second Amendment), but in a case of possible "unintended consequences," the court's decision could possibly clear the way for the constitutional "right" to every bizarre goal pushed by radicals of every segment of the leftward political spectrum as far back as anyone now alive can remember.

The case is much more involved than that, but that is as far into the weeds as this writer (a non-lawyer) is prepared to go. For all the details, we are linking this column to Ken Klukowski's Law Review article here and his actual legal brief here.

What this means to you

In his interview with this column, Klukowski says, "I think that nine out of ten judicial activist decisions tend to be liberal. I think it's very rare to get a freedom-enhancing judicial activist decision." He cites Roe v. Wade (abortion) and others as prime examples of the leftward tendencies of the courts.

Klukowski would be concerned about decisions that would create a whole new set of entitlements — i.e., the "right" to health care, including government-provided health care if you said you couldn't afford it. (We're not talking here about the current status whereby hospital emergency rooms cannot refuse to treat anyone. We're talking about the legislative monstrosities in the current House and Senate perhaps to be declared in the future as "constitutional" rights.)

Other possibilities include the right to a "living wage" — thus artificially hiking minimum wage laws and killing jobs in the process; the right to "decent" housing — or "instead of people being foreclosed upon, someday they'll have a constitutional right to demand that the government give them a house for free"; the "right" to a college education; or even the right to a "clean environment," which "would then include the right for the government to declare all sorts of environmental regulations" such as cap and trade — the wildly expensive (i.e., in your utility bills) and oppressive taxing plan to fight the manufactured fraud of "global warming." Klukowski says, "They wouldn't even do it through EPA rulemaking. It would just be the Supreme Court declaring that."

The social issues

Over 30 states have rejected same-sex marriage, but once the new "rights" are set in judicial stone, the states' wishes (and those of a majority of people in those states) will be history. And if you think Roe v. Wade (where even there, a few differentiations were made) was bad, wait until the court decides that abortion on demand is a clearly spelled-out "constitutional right" — period.

"How about the right of a child to have a public school education uninhibited and unimpaired by 'narrow-minded' or 'bigoted' religious beliefs?", Klukowski posits. And suppose "his parents want to send him to a religious school or to home-school him [but] a judge asserts that a child has a 'right' to a public school education — the right to a government education by 'responsible and licensed adults.' Of course, the child can't assert it on his own because he's not of age. So the judge asserts [it] on his behalf [and] against the wishes [of the parents]. Or perhaps the right of a child [never to be] spanked by his parents."

Far-fetched, you say? Think again

Klukowski says there is "loony left literature in the law journals on all these things. You can find liberal scholars writing about the right to this or the right to that — which they know is not found in the Constitution."

And where does the Obama White House stand?

Cass Sunstein — the White House regulatory czar "is an enormous proponent" of these expanded "rights," according to Klukowski. In fact, "he argues the courts ought to be able to declare the rights of animals to establish and declare environmental laws or to stop hunting. He thinks judges ought to be able to assert the rights of plants and of trees."

So clearly there are legal theories out there along these lines, and if the Privileges and Immunities Clause were to make "a blank slate — a totally unconstrained provision of the Constitution in the Constitution's most powerful Amendment — the Fourteenth Amendment — that would provide the ideal nesting place for activist courts to plant all of these 'rights,'" Klukowski warns.

So again — bring Americans in on the debate

Americans for over two centuries have become more or less accustomed to being blind-sided by outrageous court rulings. By all that is just and fair, we should not let that happen this time.

That is why the court arguments in March should be nationally televised so we will have no excuse to plead victimhood at the hands of a judicial sneak attack. Not only should the mainstream media be on the story, their legal analysts should be on hand to dissect the case. That won't happen, of course. Hopefully, the "new media" (i.e., Talk Radio and Fox News) will fill the void. The fate of our very system hangs in the balance. The "hate America" crowd is positioning itself to pounce.


President Obama returned from the snowy climate in Denmark to the snowy climate here in Washington — having imparted to the world his non-binding agreement to sock the American taxpayers for more money to help the "developing nations" deal with "global warming." The Chinese at the 191-nation climate conference tried to avoid being buttonholed by Mr. Obama, lest they have to tell the U.S. president to his face that America can roll over again and play Uncle Sucker, but that he was on his own. They would not allow themselves to be roped into grandiose ironclad commitments.

The Ethiopian prime minister — out of the goodness of his heart — said he would settle for a measly $30 billion (from the rich countries — guess which nation he has in mind). And that's just for starters. He would settle for edging that up to — oh, about $100 billion — by 2020. Very big of him, considering that the taxpayers of this country haven't been consulted.

Inhofe and reality

Senator James Inhofe — Ranking Member and former Chairman of the Senate Committee on Environment and Public Works — told the delegates to the conference that, just as he has explained to the international community in the past, so too is it true in 2009: "[N]o global warming treaty that causes serious harm to the U.S. economy or that doesn't include equal commitments from the likes of China and India will ever be ratified by the U.S. Senate."

As for the notions held by some "developing countries" that President Obama's offer of $1.3 billion of American taxpayers' largesse isn't enough, Senator Inhofe pointedly commented, "I think it's too much."

Developing countries don't want burdensome regulations that stifle their economies? The senator sympathizes. Americans are un-amused as to what over-regulation can do to their own economy.

The Oklahoman pointed out that the "hockey stick" graph maintaining a relatively straight line since 1000 A.D. only to shoot upward in 1900 was an influential work that has since been "thoroughly discredited." Even in the absence of the Climategate scandal, the science is flawed, Inhofe said.

The heart of the delegates

Senator Inhofe's speech came as a dose of cold-water reality to the world leftist feel-good gathering in Copenhagen. In another session the delegates showed their true colors — if any substantiation was needed — by giving a standing ovation to Venezuelan dictator Hugo Chavez, who said socialism "is the way to save the planet, capitalism is the road to hell. Let's fight against capitalism and make it obey us." PS — The media gave short shrift to the wild applause the attendees accorded Chavez for those remarks.


Last week — based on a video from a session at Copenhagen — this column reported that a UN security guard had threatened global-warming debunker and film-maker (Not Evil, Just Wrong) Phelim McAleer — just as he was asking pointed questions of Stanford University professor Stephen Schneider, and that the guard had been told by Schneider to approach McAleer. Having viewed a longer film version of the event, corrections are in order: The guard threatened McAleer after the session broke up, not while it was taking place. Schneider did not order or ask the guard to talk to McAleer. In fact, — though the professor lost his cool with McAleer during the Q&A period — he offered to sign a book for the film-maker at the end of the meeting.

That having been said, the guard's threat to McAleer — whether prompted by someone else or on the guard's own initiative — was an act of thuggery. A conference of scientists, after all, supposedly is a venue for inquiry and not where dissent is met with an effort to stifle. Such attitudes were evident in another incident where Phelim was hit by a flying object of some kind as he was appearing live on Neil Cavuto's Fox TV show. Not much "openness" or "tolerance" at that circus.

© Wes Vernon


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)


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