Tag Archives: Bell Atlantic v Twombly

The Power of Judges to Make Subjective Evaluations is Corrupt and Evil! (We cannot repeat it Sufficiently—Judges should NOT be the Gatekeepers of the Courthouses—All of the People’s Complaints should be allowed a fair trial, and a fair hanging if necessary)

I am just not a great fan of Chief Justice John Roberts at all—there are certainly more than a few comparisons to be made between Roberts’ and Warren’s elitism… the certainty that the Judges of the Land know more and can make wiser choices than “ordinary people.”

Chief Justice Roberts has in seven years done more to close the doors to the Federal Courts than all the Chief Justices of the Supreme Court had ever done to open those doors before.   The Federal Courts are effectively “off limits” now as arenae for the genuinely, freely adversarial or dialectic investigation and discovery of truth.  And where the Federal Courts go, the State Courts follow like sheep close after….

It may sound like something “only a lawyer” would care about but Warren and Roberts careers have focused on making the entire civil practice in Federal Court turn on ONE RULE, namely, Rule 12(b)(6) “the Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted.”  This one single rule is now “the gatekeeper” to the Federal Courthouse doors, and the “keymaster” is the idiosyncratic (or possibly corrupt) Federal Judge who is rewarded by the “judicial statistics” system for keeping his docket numbers “low” (i.e. Federal Judges are rewarded for their ability to minimize the number of cases and motions pending at any one time—12(b)(6) works WONDERS for cleaning the docket for 99% of the cases that come before Federal District Courts.

Again, while it may seem like a rather obscure point of law to call it a national crisis, the Motion to Dismiss has basically become “the whole game” for all but the wealthiest and most powerful litigants in Federal Court—and the reasons for dismissal are now intentionally unclear—with vast subjective discretion given into the hands of unelected (and logically, morally, and politically quite unelectable—because they are so far removed from “the ordinary citizen”) elite law-review type and model judges.

Earl Warren and John Roberts, in their construction and application of Rule 12(b)(6), align on the progressive empowerment of the subjective, almost unreviewable, control given to Judges over which complaints will be allowed or not.  Under Earl Warren, the Supreme Court gave the Judges the power to decide whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  From the standpoint of the Seventh Amendment, of course, this holding itself was an OUTRAGE.  Under the Common Law and the Constitution, ONLY juries should have any right to decide what facts are “proven” or not and whether a party is entitled to relief.  Still, in characteristic fashion, the Warren Court was applauded for setting such a high standard for dismissal of claims.  But the precedent was set: JUDGES not Juries, make the decision about whether a complaint alleges “sufficient” facts to warrant the trial which the Seventh Amendment guarantees.  That language “beyond reasonable doubt” was first enunciated in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, decided on November 18 in 1957.  11-18-1957 Conley v Gibson – 355 US 41 78 SCt 99 (1957).  

Exactly Fifty years later, John Roberts, in the first major decision concerning the rules of civil procedure under his “Chiefship” found that an anti-trust complaint drafted by one of the top Plaintiffs’ Anti-Trust firms in New York City alleged insufficient facts to be “plausible.”  That was “Bell Atlantic v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L. Ed. 2d 929 (May 21, 2007)  05-21-2007 – Bell Atlantic Corp v Twombly – 550 US 544 (2007).  

I think that the original sin was to allow JUDGES to prejudicially decide Motions to Dismiss for Failure to State a Claim.

For this reason, Conley v Gibson, in its time, functioned in a manner just as subversive to the Constitution as Bell Atlantic v. Twombly.   In 1957, the Supreme Court approved a subjective test, albeit a very LIBERAL test (difficult to flunk, like High School these days is for most student), to be applied ONLY by Judges before any fact-finding trial or even discovery—to act as gatekeepers allowing only “favored” cases to go forward.The Seventh Amendment to the Constitution guarantees the final right to try ALL facts to a jury, which findings are hardly subject to judicial review.  Twombly, by contrast, is rather like Harvard College used to be before 1940—anyone can enroll and file papers but its almost impossible to pass through the first year.  Twombly gives Federal judges unfettered discretion to dismiss cases based on their subjective evaluation of “plausibility” but Article III judges were never intended (by the Constitution) to have the power to exclude ANY cases from consideration.

Rule 12(b)(6) of the Federal Rules of Civil Procedure Permits Federal Judges to PREJUDICIALLY evaluate the factual allegations of complaints and prevent cases from ever being HEARD by juries as is GUARANTEED under the Seventh Amendment.

After Twombly, Judges now are empowered to decide whether the facts are (1) sufficiently alleged, (2) whether they make a “plausible” story.  This means that when you allege conspiracy, for example, the Judge basically can deny you the right to investigate the facts so that you will NEVER be able to put your complaint to trial before a jury.  

So, if a group of homeowners, for example, were to allege that the State Courts, and County Sheriffs’ Departments and local Constabulary of any given state systematically discriminated against mortgagors in favor of mortgagees, no matter WHAT FACTS WERE PRESENTED you can be sure that the U.S. District Court would find “insufficient” factual allegations “incomprehensibly” woven together as an “outlandish and implausible conspiracy theory.”  

This has become the (de facto) mantra of the the U.S. District Courts today: no claim or complaint that defies the ruling government’s purposes, or the ruling BANKS’ purposes, will ever be allowed to go forward in court.  

HEAR YE, HEAR YE, All Patriotic Americans: The Federal Courts are corrupt, bought and paid for by the Banks.  The only way to take them back is to restore power to the juries selected from a population pool of literate, voting, responsible Americans—and abolition of the power of judges to refuse to “hear” cases without allowing fact-finding (aka “discovery”) and trial must be declared unconstitutional.
One ray of hope exists and it is but little explored: the United States Court of Appeals for the Ninth Circuit (locus of my first job in the law) has in essence formally accused C.J. Roberts and his brother and sister justices of “outcome determinative” corruption in two decisions last year entitled “Starr v. Baca“, saying that the decisions of the Supreme Court could only be understood as catering to certain specific governmentally favored interest groups or interests, including the interest in suppressing constitutional rights…. 07-25-2012 – Starr v Baca – 652 F3d 1202 (9th Circuit 2011) 
In Starr v. Baca, the Ninth Circuit Takes on the Supreme Court in Bell Atlantic v. Twombly and rationality decency SORT OF win…. but Judges STILL have unbridled power and ius vita necisque over the people’s complaints….The Ninth Circuit also engages in an interesting political exercise of “motive” analysis, and finds the Supreme Court GUILTY of outcome determinative prejudice and bias in favor of certain policies and against certain groups…. That Starr v. Baca has some staying power and was not merely a flash in the West Coast Judicial Pan was recently confirmed in another civil rights case out of Nevada: 05-04-2012 Henry A v Willden 678 F3d 991 (9th Circuit 2012)

They’ve changed the rules but they don’t want to tell you: Phatic Communication in Meaningless Legal and Political Processes and Community Meetings: reading recommendations, reading between the lines, and seeing what’s really behind the Green Mask

In my last post after attending the “Homeowner Bill of Rights Townhall” at Whittier Community Center on Wednesday night, I suggested that there was no real purpose to this meeting other than “social reinforcement of the status quo”-making the people of Los Angeles County feel that their needs and feelings are being heeded when they are not.  I have been reflecting on this and remembering back to my early days as an anthropology undergraduate at Tulane University, and my wonderful Harvard Professor Victoria Reifler Bricker introducing me to the concept of “phatic communication” and “phatic expressions.”  As defined by a much older anthropologist Bronislaw Malinowski, as a matter of “socio-linguistics”: a phatic expression is one whose only function is to perform a social task, as opposed to conveying information.  The Social Task Wednesday night was to make people accept the situation with the banks and their mortgages as hopeless.  The Beetles’ song “Good Morning” or “I’ve got nothing to say, and that’s OK” is a fairly perfect example of phatic communication.

And now let me say this: the conventional wisdom in the press and media is that you have to be crazy to believe in conspiracy theories.  I am going to categorically deny that now and say that anyone suffers from insane delusions (of the overly optimistic, Polyanna-ish, rather than pessimistic, paranoid variety) if he or she does NOT believe that most of the meaningful change in the world today results from secret agreements, illegal or unconstitutional formulations of policy and purpose, formed behind closed doors and with only the most manipulated public knowledge, much less genuinely informed democratic assent.  Unfortunately, these secret agreements are being implemented by and through popular ignorance, insouciance, and appalling lack of vision, and Rosa Koire and the author of several other books I shall mention here have shown us how this is happening.  Now, really and truly:

One of the best (but shortest) and truly brilliant books I have read in a very long time is Rosa Koire’s Behind the Green Mask: U.N. Agenda 21. Koire’s book (published in 2011 by the “Post Sustainability Institute Press, P.O. Box 15192 in Santa Rosa, California 95402) explores one of the aspects of the modern world reality of which I am becoming increasingly aware:

The powers that be have set their minds to changing the way we live and they plan on radically altering our home life and “settlement pattern” of communities every bit as autocratically as dictators from the Famous or Infamous Egyptian Pharaoh Akhenaten at the end of the 18th Dynasty, as Stalin did when he removed the Kulaks from their farms and the Germans from Prussia, Pomerania, Posen, Danzig & Silesia (all what is now modern Poland, whose western boundary is the infamously artificial Oder-Neisse line).

Forced resettlement resembling the westward expulsion of all the aforementioned Germans from those traditional provinces of Germany (and let’s not forget the simultaneous westward removal of the Poles from what was traditionally Poland in what are now the largest portions of Belarus and the northwest corner of Ukraine) is a threat that Americans need to deal with.  Mao ordered and enforced  massive resettlement programs of the Chinese Population during the  Cultural Revolution, during which literally millions died.  Of course, we go around constantly reminded of and so remembering World War II and the Holocaust of six million Jews who (without any good censuses or any other reliable lists or directories) appear to have died or disappeared under Nazi rule in Germany.  But absolutely nobody cares about the 38-67 (some say 49-78) million (that upper figure would be 78,000,000, with a possible error, obviously, of at least 10,000,000 either way) Chinese who died under Mao, because, well, after all, they were peasants and that’s just the price of progress, right?  China is now the second most powerful nation in the world, and it is not in “second” rank….by very much of a gap…

Rosa Koire’s book details how, in the name of environmental conservation—our own United States Government wants to radically alter the settlement pattern of the United States to a continuous high-density series of corridors—a cross-between suburbs and cities without end, and without private property.

One of Ms. Koire’s most interesting points in her book concerns the Delphi Technique—a kind of hyper-sophisticated “Uber-Phatic” strategy or technique of communication which she says was invented by the RAND Corporation as a “Cold War mind control” procedure.

According to (totally sanitize dnad whitewashed, pro-establishment, pro-New World Order, unreflective, unchallenging, unthinking) Wikipedia: “The Delphi method (del-fy) is a structured communication technique, originally developed as a systematic, interactive forecasting method which relies on a panel of experts.  In the standard version, the experts answer questionnaires in two or more rounds. After each round, a facilitator provides an anonymous summary of the experts’ forecasts from the previous round as well as the reasons they provided for their judgments. Thus, experts are encouraged to revise their earlier answers in light of the replies of other members of their panel. It is believed that during this process the range of the answers will decrease and the group will converge towards the “correct” answer. Finally, the process is stopped after a pre-defined stop criterion (e.g. number of rounds, achievement of consensus, stability of results) and the mean or median scores of the final rounds determine the results. Other versions, such as the Policy Delphi, have been designed for normative and explorative use, particularly in the area of social policy and public health.  In Europe, more recent web-based experiments have used the Delphi method as a communication technique for interactive decision-making and e-democracy.  Delphi is based on the principle that forecasts (or decisions) from a structured group of individuals are more accurate than those from unstructured groups.  This has been indicated with the term “collective intelligence”.  The technique can also be adapted for use in face-to-face meetings, and is then called mini-Delphi or Estimate-Talk-Estimate (ETE). Delphi has been widely used for business forecasting and has certain advantages over another structured forecasting approach, prediction markets.”

I will not summarize Ms. Koire’s entire book here because I INSIST everyone needs to read the real thing—it’s only 168 pages and is very well-written, easy to digest (conceptually, not emotionally—the message is nothing short of horrific: One World Government and the Abolition of all Individual Rights through mind control and manipulation—with Hillary Clinton being at the forefront of it all).

But Ms. Koire shows how insidious the Delphi technique really is “Delphi is used to channel a group of people to accept a point of view that is imposed on them while convincing them it was their own idea.”  (page 25) In other words, Delphi Forums work hand-in-hand with “predictive programming” in Television and Cinema to make people accept in advance what is already being planned for them—show it to the ignorant masses in fiction and they won’t mind it so much in reality—they’ll just think how smart were the producers who predicted it all.  “A New Consensus does not allow for actual dissent” (page 24).

It seems that Continuing Legal Education programs are also being used “Delphi-like” to impose norms on lawyers and judges.  The extraordinarily radical transformation of Bankruptcy Courts from relatively safe-havens for homeowners in foreclosure to radically hostile environments for foreclosure victims (in the Central District of California in particular) has been startling over just the past two years, but has accelerated in 2012.  Every bit of judicial discretion which used to be employed for the Debtors’ benefit is now channelled in the opposite direction against the Debtors.  I had never EVER before this very day (Friday September 14, 2012) seen a debtor’s first Motion for two week Extension of Deadlines to file schedules denied in Bankruptcy Court—but it happened today.  Earlier in the summer I heard of an Orange County Bankruptcy Court telling a debtor that she was tired of people coming into Bankruptcy Court trying to save their homes.  Judges don’t make this stuff up—not lowly Article I Bankruptcy Judges with less mere Congressional statutory authority rather than constitutional and than life-time Article III tenure, in any event.

ALL the Rules have either already been changed or are being changed.  Some of this change is happening more-or-less openly: for example the five or six years have seen radical reshaping of the the Federal Rules of Civil Procedure and the requirements for stating a claim  under those rules as interpreted by the U.S. Supreme Court under Chief Justice John Roberts and his supremely elitist brother and sister justices.  In cases such as Bell Atlantic v. Twombly 550_US_544 and Ashcroft v. Iqbal, the Supreme Court has made the process of framing a complaint, initiating a viable lawsuit deemed “worthy” of going to trial or final judgment on the merits), ten times more difficult, and given judges ten times more unbridled and unguided discretion, in dismissing plaintiffs’ claims based on entirely subjective evaluations.  This is nothing short of a disaster for due process of law.  I personally believe that Rule 12(b)(6) of the Federal Rules of Civil Procedure should abolished by congressional action entirely—but that would be much too open a change—out of the spirit of our times.  

But the point is: the rules that we can see being changed, by Judicial Fiat, at least we can argue and ask Congress to overrule.  

The idea that U.N. Agenda 21 being imposed by meetings no more important in democratic substance than the “Homeowner Bill of Rights Town Hall” at the Whittier Community Center on Wednesday, is such a cynical perversion of the concept of the Old New England Town Hall Meeting—sometimes called the Greatest Institution of Pure Democracy since the Athenian Agora—is, well, almost analogous to the cynical use of the name of Apollo’s Oracle of Sunlit Truth at “Delphi” to describe the process of mind-bending and  manipulation by disinformation.

Together with Rosa Koire’s book, I have been reading a rather longer and more academic text entitled, The Case AGAINST the Global Economy, edited by (I swear I’m not making this name up!) Jerry Mander and Edward Goldsmith, published by the Sierra Club and the University of California Press in 1996 (don’t know how I’ve missed it all these years).  This wonderful collection of articles attacking GATT, NAFTA and the WTO should be read by anyone and everyone who has the patience to delve into the details a little more deeply.  But the conclusion and the counsel against World Government and World Homogenization is, in this Bright Red Jacketed volume, if anything, even stronger than Rosa Koire’s much shorter and much less academic book. The Case Against the Global Economy is 550 pages, fully three times the sheer paper volume, and in much smaller print fonts, than Behind the Green Mask. 

But what I want to close by pointing out is how astounding it is that while both Rosa Koire and most of the authors of the articles inside “Jerry Mander’s” book (for example Ralph Nader [author of Chapter 8: “GATT, NAFTA and the Subversion of the Democratic Process”] and members of the “Harvard Working Group” anonymous authors of Chapter 13: “Globalization, Development, and the Spread of Disease”) either expressly or implicitly claim to be liberals or Democrats or “Greens”—their conclusions mirror to a striking degree those found in William Cooper’s ultra-conservative “textbook conspiracy kook” [remember what I wrote above: you are demented and blind if you DON’T believe the world is constantly being reshaped and manipulated through secret, illegal, immoral, and in the USA Unconstitutional conspiracies and agreements] entitled Behold a Pale Horse based on a practical, step-by-step deconstruction of what’s going on in the US and UN so far as implementing communism and totalitarian government.  

Even more ironically, from a historical standpoint, the views, perspectives, and conclusions of (self-described liberal Democrat) Rose Koire, Ralph Nader, and the Harvard Study Group (along with most of the contributors to The Case AGAINST the Global Economy) line up perfectly with those of John Stormer in his now classic None Dare Call it Treason of which the Liberty Bell Press in Florissant, Missouri sold over 1,000,000 copies in 1964, the first year of the book’s release—and not coincidentally the year after John F. Kennedy’s assassination, the last year silver coins were minted and legally circulated in the United States, and the year in which Lyndon Baines Johnson buried Senator Barry Goldwater in an anti-conservative avalanche precipitated by sympathy over Kennedy’s death…..

Milton William Cooper’s 1991 book Behold a Pale Horse was published by Light Technology Publishing P.O. Box, Flagstaff, Arizona 86003.  It is filled with detailed documentation but is usually described as the craziest of all right-wing conservative tracts—who knew Ralph Nader and the Harvard Working Group were radical right-wing conspiracy theorists?  Hurray for them, I guess….. I confess I voted for Ralph Nader in 2000…..and generally find him and his work much more compatible with free market and libertarian philosophies than he would probably like to admit….

A New Red Dawn Over America—Obamacare & the Police Power in Arizona are Upheld—the Constitution again ruled DOA at the Supreme Court (full text of the Supreme Court’s Worst Two Decisions of the Week attached)

Chief Justice John Roberts is rapidly becoming my least favorite U.S. Supreme Court Justice in history.  First, in 2007, the debut innovation of “the Roberts Court” was Bell Atlantic v. Twombly, then a followup kick in the face of freedom under the name of Ashcroft v. Iqbal and now this week (on Monday, June 25, 2012) Arizona v. United States (Arizona v US) and, today Thursday, June 28, 2012, yet another day that will live in infamy: NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. KAREN SEBELIUS, SECRETARY OF HEALTH & HUMAN SERVICES (NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al v SEBELIUS SECRETARY OF HEALTH).

It’s been a really bad week for the Constitution and for the American people, and a very good day for  Obama’s flourishing Dictatorship of the Proletariat.  Oh yes, and what a nice present for Hillary Clinton as she celebrates lasting longer as U.S. Secretary of State than any other of the 96 individuals to hold that office—and we were all sure she was just a joke back in the early 1990s when she was pushing a National Health Care System which looked an awful lot like what we’ve got now with Obamacare.

First with regard to Arizona v. US: The expansion of the American Police State seems never-ending, as the late great Strom Thurmond’s States-Rights Democratic Party Platform very accurately predicted in 1948.   The great triumph of the Civil Rights Movement in the United States over the past 64 years is quite simply this: all oppressive acts of government, so long as they are applied equally to White people as well as Blacks, Hispanics, Asians, and all others without Racial, and only with Economic and Political, Prejudice, will be upheld.  But try asserting any constitutional right other than your right to be on an equal footing with all other slaves, and man YOU ARE DEAD MEAT!!!!  States Rights got a minor boost last year when an individual right to sue under the Tenth Amendment was recognized, but this year the 162 year trend towards the complete suppression of State Sovereignty marches forward unabated….

The main issue regarding Arizona’s immigration statutes was whether the individual states of the Union have any right to make more restrictive laws regarding residence and citizenship than the United States as a whole.  Under the expressly anti-States’ Rights 14th Amendment, the Supreme Court said NO.  But, if the Arizona police want to go around harassing people on the highways, they are free to do so, so long as they are willing to say they suspect that every blonde-haired & blue-eyed caucasian must have recently entered illegally from Sweden or Norway perhaps….  The Supreme Court, these days, never seems to miss an opportunity to enhance the power of the police to oppress the population at large.

With regard to the “Obamacare” case, I can only say I’m NOT even as surprised by this result as I was not by the result in the Arizona immigration opinion.  Ever since Franklin D. Roosevelt gave up his plan to “pack” the Supreme Court, there is no infringement on the economic liberty and personal choices of the American people which the Supreme Court finds too trivial to be worthy of Federal Enforcement.  The only comment-worthy deviation from predictions was that Chief Justice John Roberts in this case came up with the novel notion that the U.S. government can tax anything and anyone it wants to for any reason, including non-compliance with a mandatory insurance purchase requirement, and that this punitive tax or purchase choice makes it all “OK.”

Of all the commentary and punditry that came out on Thursday after the decision, two of the most “spot on” that I saw were first) the article describing John Roberts’ “Liberal Apotheosis”:

After Thursday’s Obamacare ruling, Supreme Court Justice John Roberts became a minor deity to some liberals for voting to save Obamacare. But just days before Roberts’ apotheosis, liberals lamented that the “conservative” Supreme Court was taking America down a dangerous path.  (http://news.yahoo.com/obamacare-ruling-liberal-apotheosis-john-roberts-035207618.html)

The “Liberal Apotheosis” of John Roberts?  “Apotheosis” of course, means transformation into a god—and what did the pagan gods of Olympia or Pharaonic Egypt do?  Exactly what any god can do:  A “god” can work Miracles,  first Make and then Bend the all Rules, Change the Natural Order of Things….   I suppose my own religious notions, such as they are, posit an unchanging God defined by the phrase from the old BCP: “as it was in the beginning, it is now and ever shall be, world without end amen” which seems curiously absent from most Episcopal services these days.   I equate God with Nature, and while I believe rather fervently in Evolution, I believe Evolution operates according to certain utterly unchanging rules, such as the laws of thermodynamics, which even the discovery of man’s ability intentionally to split or fuse atoms could never quite change.

And yet the Godlike role of the Supreme Court in making and bending rules seems more than a bit undemocratic.   So that is the second part of the analysis we need to perform today: Was Roberts’ decision to side with Obamacare entirely a matter of political strategy?

 The American Concept of Constitutional Judicial Review predates Chief Justice John Marshall. The Supreme Court’s decision Chisholm v. Georgia 2 U.S. 412 (February 1, 1793)(Chisholm v Georgia, 2 U.S. 419, February 1 1793triggered the (I would now say very unfortunate) move to enact the 11th Amendment during the First Term of the Presidency of George Washington.  But Chief Justice Marshall’s notions of judicial review shaped the Court, much to his cousin Thomas Jefferson’s dismay and disgust.   I recall hearing the story of Marbury v. Madison and judicial review in my Freshman year at Tulane, from Professor Jean Danielson in Political Science H103, where I met my long-time college years best friend John K. Naland, now a long-time veteran of the U.S. State Department.  Professor Danielson explained the political genius of Marbury v. Madison was that it empowered the Court while respecting the political boundaries of the time.  Chief Justice Marshall knew that, as President Adams’ last major appointee, any decision made in favor of the appointment of Adams’ minor “midnight judges” including William Marbury would simply be ignored by the new Democratic-Republican administration of Jefferson (with James Madison as secretary of state and the defendant in the case) as an act of political partisanship on the part of a Federalist appointee favoring Federalist appointees.  On the other hand, to uphold Secretary of State Madison’s power to refuse to honor the appointments made by President Adams would seem like craven capitulation without legal or moral integrity.  So, in a result which no one ever anticipated, Chief Justice John Marshall carefully reasoned and soundly declared the statute authorizing the appointment of Magistrates in the District of Columbia to be an unconstitutional act in excess of Congress’ power under the Constitution—and the role of the U.S. Supreme Court as Constitutional arbiter of the United States was established forever—or, at least, for a long time.

That particular “long time” ended in 1936, which, as a another commentator/pundit on the Obamacare decision pointed out, was the last time in history that the United States Supreme Court overturned a major piece of Congressional legislation as Unconstitutional.    Franklin Delano Roosevelt’s first term as President was unlike anything the United States had ever since, including George Washington’s First Term.   In Washington’s First Term, the constant debate in Congress was whether the Federal Government had power under the Constitution to do much of anything at all.  The spirit was decidedly “conservative” in the sense of cautious, even as a new nation conceived in liberty and dedicated to the proposition that all men are created equal was being launched as a more formally organized “corporate” type of enterprise (the Articles of Confederation were much more analogous to a “partnership” among the States—with each partner having a nearly full veto power).

During FDR’s First Term, there were also many in Congress who asked whether the Federal Government had the power to do a great many of the things the New Deal proposed to do, from the NRA to the TVA (National Recovery Administration to the Tennessee Valley Authority).  But from 1933-1937, such questions were not asked in a cautious or even skeptical voice regarding what Congress and the Federal government could legitimately do, but in the desperate and panicked voice of people who saw and feared “you are taking our lives, our fortunes, our sacred honor” from us.  Those people sought recourse against the reckless usurpation of Federal Power in the Supreme Court, and in the years 1933-1937, the Supreme Court struck down 29 Congressionally passed statutes signed by the President as part of the New Deal.

Roosevelt’s first hundred days and all that followed provoked an unprecedented clash between the Supreme Court Justices and the “New Deal” alliance of the legislative and executive branches. At Roosevelt’s instigation, Congress in the 1930s enacted a series of laws ostensibly, supposed, aimed at ending the Great Depression and restoring the nation’s economic well-being, but in fact aimed at shoring up the American Elite, especially the Banking system, from the threat of a Communist and/or Fascist revolution analogous to those taking place in Europe at the same time.  Of eight major “program” statutes to come before the Court, only two were upheld. Laws that were struck down included the Agricultural Adjustment Act of 1933, the National Industrial Recovery Act of 1933, and the Bituminous Coal Conservation Act of 1935.  The Court came under heavy fire for its decisions, and Roosevelt proposed a controversial plan to increase the size of the Court, presumably to ensure a majority sympathetic to the New Deal.

Shortly after the plan was proposed, the Court defused the issue by upholding a series of revised New Deal laws.  Dominated by economic conservatives, to which group even late 19th/early 20th Century “Progressives” such as Oliver Wendell Holmes were (by comparison, anyhow) the Court threw out numerous laws Congress enacted to protect workers and consumers. The conflicts peaked in 1936. The Court threw out twenty-nine laws during that period, but the last of these was in 1936, when when the court invalidated a federal law that limited work hours and prescribed minimum wages for coal workers.

Everything changed in 1937 when, FDR Proposed the Judicial Procedures Reform Bill of 1937 on March 9 of that year in one of his legendary “Fireside chats” whereby he jumped over the Congress and all Constitutional Separation of Powers and asked the American people directly to endorse and support his programs.  The public reaction was overwhelmingly negative, almost the first time the 33rd President had seen any of his initiatives draw such opposition.  But the Justices of the Supreme Court saw the writing on the wall—mene, mene, tekel upharsin—and when faced with the two major cases challenging Social Security (the ultimate authority and most direct antecedent for Obamacare), the Supreme Court ruled in favor of the most massive fraud ever perpetrated on the American people—the law creating a “Social Security Trust Fund” with the bribed cooperation of the States—into which Social Security Trust Fund not one dime of real money (certainly not one dime of the 14 Trillion dollars paid since 1937 in Social Security Taxes) has ever been paid.

Helvering v. Davis (05-27-1937 Helvering v Davis 301 US 619 57 SCt 904 Jusice Cardozo endorses the SS Trust Fund Fraud) and Steward Machine Company v. Davis (Charles C Steward Mach Co v Davis) thus effectively marked the end of the Supreme Court as an independent branch of government.  The new mantra was not “that government is best which governs least” but instead, “The concept of the general welfare is not a static one”…. “Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.”   (Helvering v. Davis, 301 U.S. 619, 641, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 1315 [1937])

From that time forward Courts held that there appeared to be only four (all extra-constitutional) prerequisites to a finding that a spending clause measure and condition attached to it are valid: (1) The federal power is used for a legitimate national purpose, i.e., promotion of the general welfare (Charles C. Steward Machine Co. v. Davis, 301 U.S. 548 at pp. 585–590, 57 S.Ct. at pp. 890–92 [1937], 81 L.Ed. at pp. 1290–1293); (2) the condition is related to a legitimate national goal (Charles C. Steward Machine Co. v. Davis, supra, at pp. 590–591, 57 S.Ct. at pp. 892–93, 81 L.Ed. at pp. 1292–1293; See also Note, Federal Grants and the Tenth Amendment: ‘Things As They Are’ and Fiscal Federalism (1981) 50 Fordham L.Rev. 130, 140–141); (3) the condition is related to the purpose of the federal funds whose receipt is conditioned (FCC v. League of Women Voters (1984) 468 U.S. 364, 104 S.Ct. 3106, 3132, 82 L.Ed.2d 278, 309 (Rehnquist, J. dissenting); State of Okl. v. Schweiker, 655 F.2d at pp. 407, 411); and (4) the condition is unambiguous (Pennhurst State School v. Halderman,  451 U.S. at p. 17, 101 S.Ct. at pp. 1539–40 [January 23, 1984])(Pennhurst State School And Hosp v Halderman).
It was in the spirit of such a “living constitution” that Chief Justice John Roberts allied himself with the enemies of limited government on June 28, 2012.  And it is in that sense, much like the Supreme Court in 1937, ruling in Roosevelt’s favor in both of the Social Security Cases, Helvering and Charles Steward above, that Chief Justice John Roberts “saved the Supreme Court” (http://news.yahoo.com/blogs/power-players-abc-news/did-chief-justice-roberts-save-supreme-court-103301790.html).  More likely, Chief Justice John Roberts just danced on Chief Justice John Marshall’s grave and said, “You think that failure to follow the Constitution is Judicial Treason?  Well, let’s see what you’re going to do about it now.”  According to that same article, Chief Justice Roberts had told the Senate at his confirmation hearings:
“Judges are like umpires. Umpires don’t make the rules; they apply them,” said Roberts at the time. “The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Now, strangely enough, Chief Justice John Marshall wrote a very different kind of opinion in 1820:

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.  Cohens v State of Virginia, 19 U.S. 264, 5 L.Ed. 257, 6 Wheaton 264 (March 3, 1820)

There is a great deal of confusion among the commentators and pundits, I think, about what “Judicial activism” really means.  I would NOT call Chief Justice John Marshall a Judicial Activist—although, indeed, he advocated throughout his 35 years on the bench a considerably more positive role for the Court in preserving the Constitution than Chief Justice John Roberts has shown to date.  “Judicial Activism” does not mean “striking down unconstitutional laws”—“Judicial Activism” as a term should be reserved for reshaping or restructuring the laws in the absence of Congressional Authority to do so.  The “Warren Court” from 1953-1971 was the epitome of “judicial activism”—the Supreme Court during those two decades effectively rewrote the laws of the United States and told CONGRESS and the STATES what to do, rather than vice-versa.

In the case of Obamacare, Chief Justice John Roberts acts his role as an umpire very poorly.  He has seen the foul, called it (under the commerce clause) and “covered it up” under the guise of the taxing power, which (in reality) is even less constitutionally justified than the commerce clause rationale (which at least has the past 75 years of tradition—however illegitimate, behind it).

And so was the U.S. Constitution rewritten in 1937 to allow for first the “relatively” modest program of Social Security and now, 75 years later—on the occasion of the 75th Annual Hunger Games (cf. Suzanne Collins, Catching Fire [2009] and Mockingjay [2010], both New York: Scholastic Press)—Obamacare comes forward to cap the fraud by, in Chief Justice John Roberts’ view—a non-coercive, mere “Tax” on those who do not buy governmentally mandated insurance… and of course, jail for those who do not pay their taxes.

SO WHAT IS THE SHORT-TERM SOLUTION?  NULLIFY OBAMACARE!  I should say that, without any hesitation whatsoever, I absolutely endorse and support the Tenth Amendment Center’s position on Obamacare (this Los Angeles based think tank is just one of the brightest stars on the Political Horizon—of our New Red Dawn):

Now that the Supremes have crushed Constitutional limits once again, the next step is to focus all our energy on a state and local level to NULLIFY this – and every other – unconstitutional act.
We have model legislation for yor state.  Ready to go right now.  Press your state reps to introduce this bill today, or for the next legislative session.
http://tenthamendmentcenter.com/legislation/federal-health-care-nullification-act/
Please SHARE this information widely!
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We need your help to continue this work, and help people take the next step at the state level.  Please join us, and help nullification happen!  Whether it’s $500 or $5, every bit of help right now is crucial!
Please visit this link to help now:
http://tenthamendmentcenter.com/donate/
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Thomas Jefferson told us that when the government “assumes undelegated powers” a nullification is THE “rightful remedy”
James Madison said that states were “duty bound to interpose….to arrest the progress of evil”
Today’s ruling is an assumption of undelegated powers, and evil is advancing.  The time to act in support of nullification in your area is NOW!  Please share the model legislation for Obamacare with as many people as possible, and please chip in as generously as possible to help us push this campaign aggressively.
While the task is difficult, our cause is just.
Concordia res parvae crescunt,
(small thing grow great by concord)
Michael Bolding
Tenth Amendment Center
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Our mailing address is:
Tenth Amendment Center
123 S. Figueroa St
Suite 1614
Los Angeles, CA 90012
Our telephone:
213.935.0553

AND WHAT DO I DO AS I WATCH ALL THIS TRANSPIRE?

I sigh.  I cry.  And sometimes I just want to lie down and die.  This is not the land of my birth, even though on the map it generally looks like it should be the same country as it was in 1960.

The transformation over the past fifty two years is simply horrific.  52 years was a key cycle of time among the Aztec, Maya, Mixtec, Tarascans & Zapotec in ancient Mesoamerica, and I can only say that I feel a certain sympathy for how an Aztec born in 1518 might have felt looking at the wreckage of his once proud nation in 1570 after 52 years of Spanish conquest, rape and pillage.  Like an Aztec born in the last year before the arrival of the Spanish, I have grown up and come to age watching my own people (the American Middle Class, especially Protestants of European descent) reduced to second class status, my people’s most attractive and beautiful women taken as prizes by the conquerors, my nation’s heritage and values denigrated, suppressed and taught in the schools as nothing but “heresy” from the New World Order.

I do speak Spanish fairly well and have spent many of the happier moments in my life in Mexico and elsewhere in the Hispanic World, from Bogotá to Barcelona, and I keep in touch with many friends and acquaintances of a Constitutional mindset from those parts of the world.  When they ask me what I consider to be the greatest single constitutional development under the Presidency of Barack Hussein Obama, I tell them without hesitation: N.A.D.A.  (aka Senate Bill 1867, you know, the statute that effectively repealed the Fourth, Fifth, and Sixth Amendments that passed the Senate 93-7 last December).