Wednesday, March 28, 2012

Justice Scalia during the hearing on the severability issue in the Affordable Care Act:
Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages? And do you really expect the Court to do that? Or do you expect us to--to give this function to our law clerks? Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
Suggesting that expecting the Court is subjected to cruel and unusual punishment is stated in the language of a joke, but it's essentially true. The bill is so big, so convoluted, that it's doubtful that anyone has ever read the whole thing or comprehends it. Congress has developed a nasty habit of passing bills that sketch out what it wants them to do and then leave it to the bureaucracy and the courts to fill in the blanks or create the actual structure of the law. I think this is so because so many members of Congress aren't smart enough to do it themselves. They're more involved in making deals to get bills passed and larding them up with special provisions to draw in particular members whose votes are needed. The Courts have enabled this kind of behavior by their willingness to play along with it, largely due to the kind of judges appointed during the New Deal and thereafter. All of this boils down to my belief that our Constitutional Republic bears about as much resemblance to what we have today as the original Roman Republic did to the empire under the Caesars, and about as much of a likelihood of being reinstated. The only way I see out of this is through collapse and chaos with pockets of population where the principles of the original republic are kept alive and defended against the hostility all around them.

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