I spent my whole life running around, Still let the wind kinda blow me around
…And I traded it in for a whole 'nother world, A pirate flag and an island girl –Kenny Chesney

Do you like Pirates?  I know I do.  I could watch Pirates of the Caribbean over and over again.  Many people who live on the coast have pirate bumper stickers that say Salt Life.  But Pirates have bad reputations because they pillaged innocent people, even though we don’t normally associate them in that way. Usually, we associate them with island vacations where people let go of their worries and play instead of worrying about work. Still, maybe we ought to ban pirates because they didn’t respect the rights of those they pillaged? On second thought, that might make some people very sad.  Pirate aficionados derive joy in thinking about living by their own rules and leaving behind their responsibilities. Pirates are so popular among some groups of people that there are toys, flags, clothing, and even a Talk Like A Pirate Day. Besides, just because some people find pirates offensive, the First Amendment protects free speech, so long as it isn’t inciting people to violence. 

Many people like to buy Confederate Flags and clothing with the Confederate flag logos.  Those who appreciate the flag logo most often associate this emblem with the idea of states’ rights.  The flag was first flown by the Confederacy in the Civil War, a war in which many slave holding states asserted their right to secede from the union, rather than change their economy, which relied on slave labor.  In the beginning, this “war between the states” was about preserving the union.  After fighting for two years, however, President Lincoln issued the Emancipation Proclamation which declared that all slaves in states rebelling against the Union were free, leaving slavery intact in the Border States. Freeing the slaves in the Confederate States became a Union war objective. Although the Confederate States of America wanted to maintain a way of life which included the subjugation of a group of people based on their color, today, many people would agree that not unlike the Pirate Flag, the Confederate Flag has come to symbolize states’ rights, not the subjugation of a group of people. 

Recently, in Charleston, South Carolina, Dylann Storm Roof was charged with shooting nine people at Emanuel African Methodist Episcopal Church.  Prior to the shooting, the suspect had been photographed “waving Confederate flags and wearing symbols of racist white regimes, and reportedly wrote of fomenting racial violence.” (The Washington Times) Because he was seen in this manner, many groups are demanding that the Confederate flag be removed from the public square because it is associated with white supremacy and incites people to racial violence.  This is particularly interesting because in many acts of terror, law enforcement agencies are told not to profile, i.e., associate certain clothing or associations as increasing the likelihood of violence.  If a person had committed this shooting wearing a pirate shirt, would there be screams to remove pirate paraphernalia from merchandisers and consider those displaying such emblems as inciting violence?

After the Boston Massacre, when John Adams defended the Red Coats in a Massachusetts Court of law, he explained that because we are a nation of laws and not of men, everyone is entitled to a fair trial.  He and the soldiers he defended, recognized that an unruly mob which was angry about British subjugation of the colonies might not be able to look at the specific events objectively.  They would merge their experiences and punish the soldiers, regardless of the reality.  John Adams was a brilliant lawyer and was able to save the soldiers from what at first seemed to be a certain fate.   In his summation he stated,
Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.

We would be wise to heed the words of John Adams before the wishes, inclinations, or dictates of passions force the removal of the Confederate Flag from the public square, erasing a symbol of states’ rights at a time when the Tenth Amendment has been completely ignored by the Supreme Court in recent rulings on Obamacare.  Freedom of speech is one of the first freedoms.  There is no freedom not to be offended.  And the meaning behind symbols and of words cannot be changed just to fit a political agenda. 

When you think about it, both flags could represent subjugation or freedom.  Yo ho, yo ho, A Pirate’s life for me.

The Supreme Court has been in the news this week for two different decisions, both of which thrust Justice John Roberts into the conservative spotlight.  In King v. Burwell, Roberts upheld the Patient Protection and Affordable Care Act, i.e. Obamacare, and in Obergefell  v. Hodges, Roberts voted against same sex marriage.  His opinions are important to examine because in both, it would appear that, he was more concerned with appeasing the popular majority instead of upholding the rule of law, which he is sworn to defend.   Let’s first look at King v Burwell.

Peter Suderman writes in, ”In Upholding Obamacare’s Subsidies, Justice Roberts Rewrites the Law—Again” about how Roberts goes beyond interpreting the law in the majority decision.

"Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them," he writes. "If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter."

And so Roberts decided that a law which explicitly and repeatedly states that subsidies are limited to exchanges "established by a State," and which defines "State" as one of the 50 states or the District of Columbia, actually allows subsidies in exchanges established by a State or the federal government. Roberts’ decision does not interpret Obamacare; it adds to it and reworks it, and in the process transforms it into something that it is not.

Or as John Podhoretz explains, even more succinctly in his article, “The twisted logic of John Roberts’ ObamaCare ruling,”

The language is plain, as even Roberts acknowledges: “An individual [is eligible] to receive tax credits only if the individual enrolls in an insurance plan through ‘an Exchange established by the State.’”

Should any state decide not to establish exchanges, that is the state’s right.  After all, this is how federalism works.  Citizens can vote with their feet, as it were.    

Suderman then paraphrases Justice Scalia’s dissent for his readers. 

If Roberts had truly wanted to defer to Congress, he could have ruled that the law means what says rather than what it does not, and effectively handed the issue back to the legislature, letting Congress decide whether and how to update the law in accordance with its own wishes. Instead, Roberts made the choice for Congress—taking its power to craft law for itself. As Scalia writes, "the Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude."

Our Legislative Branch abdicated its responsibility by carelessly crafting Obamacare and passing it hastily. The Legislative Branch of government did not perform its duties in the best interest of the people by, using then House House Majority Leader Nancy Pelosi’s  words, passing the bill before knowing what’s in it. One of the reasons why the law passing process is so cumbersome is because the Framers understood how important it is to think through the repercussions of laws and not to act hastily.  By abdicating its responsibility, it left the law -not only open to judicial interpretation- but to actual revision by activist judges on a Supreme Court.

Judicial Activism by judges is not a new development.

Cato Institute’s Ilya Shapiro writes in, “Justice John Roberts’s Obamacare Decision Is an Orwellian Mess,”

Activism, typified by the four Democratic-appointed justices, finds in the Constitution no judicially administrable limits on federal power.

The law in question forces citizens to purchase health insurance or pay a tax.  The insurance in question is overpriced and citizens who qualify will receive subsidies to make it more affordable.  How does this protect the individual liberty of some people against the concentrated power of a majority? It doesn’t and the precedent has now been established that majority rules.  This is frightening because we are not a democracy; we are a constitutional-republic.  The constitution should not be transgressed because we are a rule of law, not of men. Mob rule has no respect for minority rights.  The founders intended the citizens to elect representatives who could take into account a variety of interests and prevent extremist positions.  State legislatures were supposed to choose senators to represent state’s rights. Yet most citizens in this country think the words democracy and republic are interchangeable. The Framers agreed with Aristotle who equated democracy with mob rule and considered it a perversion of constitutional government.

Just as bad as judicial activism is judicial passivism.  As Shapiro explains,

Pacifism, a knee-jerk reaction to the activism of the 1960s and ’70s, argues that unelected judges shouldn’t overturn the people’s laws. Neither approach considers that the Constitution’s structural provisions, as well as the standard canons of statutory interpretation, aren’t dry exercises in political or linguistic theory, but a means to protect individual liberty against the concentrated power of popular majorities.

In, “9 Need-to-Know Quotes From the Obergefell v. Hodges Opinions,” Justice Roberts writes in his dissent,

"Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept."

In this case, Justice Roberts reminds us that we are a government of laws, not of men, in other words, we are a constitutional republic.  Our constitution is supposed to defend minority and majority rights.  Again, this is a state’s rights issue, except for the fact that the 14th Amendment led to the incorporation of the 1st Amendment and federal law now trumps state law around religion. 

Steven Waldman writes in, “Founding Faith: Providence, Politics, and the Birth of Religious Freedom in America,”

Once the Fourteenth Amendment applied the Bill of Rights to the states, judges were left to figure out what the Founders would have done about things like prayer in school, when in fact such issues were far from the Founders’ minds.

An easy way around this is to leave religion and marriages to the churches.  We simply must stop expecting government to legislate morality. Morality begins in the home. As the 1st Amendment is written,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In this case, Justice Roberts’ opinion would seem to reflect judicial pacifism, in that he understands that the states’ laws on religion respect the codified non-secular definition of the church, which it is between a man and a woman for the purposes of procreation.

For all intents and purposes, marriage should be left to the church and the state should stay out of defining it. 

James Madison would have argued,

The “multiplicity of sects” would therefore protect religious liberty. In that sense, each faith owes its power and freedom to the vitality of other faiths. Those seeking the one True Way must tolerate the vibrancy of “false” faiths.

In essence, the Supreme Court traded one definition for another. Perhaps in this case, instead of practicing pacifism, the court should have explained that government only recognizes unions, for the purposes of wills, taxes, etc. and that marriage, as an institution, is regulated by each church as it sees fit.  What this ruling and new definition will mean for those who believe marriage is between a man and a woman remains to be seen.

In both court cases, we see the 10th Amendment being disregarded by the federal government. In both, the Supreme Court is not interpreting the law but crafting language for the law and the Legislative Branch seems to be yielding its power to the Judicial Branch. However, the people are still sovereign in this nation.  For the long term, we must elect representatives to office who understand and uphold the rule of law. To do so, we must understand it ourselves. In the short term, those we’ve already elected must consider their options for removing judges who are not exhibiting good behavior, i.e. legislating from the bench.  If they are unwilling to do their job, this must become an election issue so that the will of the majority does not disregard the will of the minority. Our freedom is at stake.