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Saturday, October 22, 2016

WASHINGTON — Sometimes history speeds up. Rarely in our nation’s 239 years of life has a single week brought such a surge of social change and such a sweeping set of challenges to past assumptions.

The move against the Confederate battle flag in South Carolina quickly cascaded into a national effort to cast aside commemorations of secession, slavery, and white supremacy. This was more than symbolism. It represented something bigger — the nation’s turn toward “thoughtful introspection and self-examination,” as President Obama said in his powerful eulogy for the Rev. Clementa Pinckney on Friday.

For years, the fact that slavery was the central cause of the Civil War was swept under a rug woven of heritage and battlefield glory. Confederate emblems that came into wide public use in the 1950s and 1960s in large part to protest racial equality and civil rights were treated as if they had always been there, representing a “tradition” kept vague enough to hide away slave labor, disenfranchisement and murderous night riders.

On Thursday, the Supreme Court decided, 6-to-3, to keep the Affordable Care Act whole. To go the other way, as Chief Justice John Roberts argued, would have violated any plausible understanding of what Congress had intended. Roberts’ reasoning was rooted, ironically, in the principles of interpretation put forward by Justice Antonin Scalia. This did not stop Scalia from offering a scalding dissent that gave the nation a vocabulary lesson when he condemned “interpretive jiggery-pokery.”

Yet if the King v. Burwell case was about a textual dispute, its implications were much broader. In principle, there are no irreversible changes in a democratic republic because everything is always subject to popular review. In practice, some reforms do become irreversible as they are accepted by overwhelming majorities as necessary and normal. Obamacare has not quite reached this point, but it is now on the road to joining Medicare and Social Security as fixtures of social policy.

And the next day the Court made same-sex marriage the law of the land. Few legal cases have more dramatically demonstrated the complicated interaction of personal decisions, social movements, political struggles, and judicial judgments than Obergefell v. Hodges. And on few issues has the American public so rapidly changed its collective mind. In Brown v. Board of Education, the Court led public opinion. In Obergefell, the Court followed it.

It’s plain how this happened: As individual gays and lesbians came out, more and more Americans realized that someone they cared about belonged to a group that had long been oppressed and stigmatized. Supporters of gay marriage mobilized these new allies, gradually winning victories in legislatures and referendums. These campaigns further turned opinion to the point where Justice Anthony Kennedy could discern a 14th Amendment right to equal protection that did not seem to apply just a few years ago.

“The nature of injustice is that we may not always see it in our own times,” Kennedy wrote for the majority. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Most Americans will agree with this. Despite my own qualms about judicial activism, I found myself cheering his logic and the result. A fair share of conservatives I know are privately happy that the Court has begun to take the issue out of politics.

This does not make concerns about judicial activism disappear, and liberals should be candid: They cheered Roberts’ judicial modesty in the Obamacare case (“we must respect the role of the legislature, and take care not to undo what it has done”) and then criticized him for upholding a related principle in Obergefell (the majority, Roberts charged, “seizes for itself a question the Constitution leaves to the people”). Liberals — myself among them — have also taken Roberts to task on his own brand of judicial activism in tearing apart laws on campaign finance and voting rights.

Yet these inconsistencies also illustrate something conservatives need to recognize: that social movements, public opinion, the courts, and the elected branches are not hermetically sealed off from each other.

And the core liberal conviction about the Supreme Court, developed during and after the New Deal years, still rings true: that the Court plays its most constructive role in our national life when it uses its power to vindicate the rights of beleaguered minorities. This week will be remembered as a stunning moment when our institutions converged to accelerate our long, steady movement toward an ever more inclusive equality.

E.J. Dionne’s email address is [email protected] Twitter: @EJDionne. 

Photo: Photo Phiend via Flickr

  • Dominick Vila

    The recent decisions by the Supreme Court highlight the fact that are democracy is alive and well. That justice, while imperfect at times, is the norm, and that the path to greater freedoms and respect for the values of all American citizens is not a chimera.
    Hopefully, all our institutions of government – at all levels – will have the courage to demonstrate the same wisdom and pragmatism as the Supreme Court just did.

    • mike

      No Dom, it is a huge loss for Democracy. The decision can be compared to the decision to “the invention of the right to abortion.” We are in a new place, it can no longer be debated, all laws are cancelled, Democracy took another hit, judges have the power to say what the law is, not what it should be.

      This decision short-circuits the political process that has been underway on the state level for years. The Supreme Court decision follows public opinion polls, and tramples on states’ rights that were once protected by the 10th Amendment of the Constitution. Our founding fathers did not intend for the judicial branch to legislate from the bench.

      When will the first law suit against a church refusing to marry a gay couple happen? Watch, it is coming.

      • Dominick Vila

        Supreme Court Justices are not supposed to make decisions based on their interpretations of what a “law should be”, but on its constitutionality. In this case, the ACA and its precepts are consistent with what the Founding Fathers articulated in the Preamble.
        Since nobody is asking churches to marry same-sex couples, or do anything that is inconsistent with their values or beliefs, a law suit for them refusing to marry same sex couples is unlikely. The SCOTUS decision applies to civil rather than religious marriages.
        Then again, I would not put it past a gay Republican suing to make a point.

        • mike

          Baloney, “based on preamble” what a load of crap.

          If you look at the definition of “welfare” at the time of the writing of the constitution you would see that it is not the meaning of “Welfare” today.
          The Welfare today isn’t even close to the definition of the word 200 years ago as used in Art. 1, Sec. 8 clause. When the Constitution was ratified Welfare meant.

          “Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government (Webster’s American Dictionary of the English Language, 1828.”

          The Constitution was written for our government and therefore the “general welfare” it refers to is that of the government itself, not the individual citizens. The Founders of this nation never intended for Uncle Sam to become a dole-dishing agent of wealth redistribution, and the fact that our government serves this role today shows how far we have strayed from the object and design of the Constitution.

          As to your asinine comment about republican gays filing a law suit against the church, wrong again. When it happens it will be from the left. It will come from the same gays that staged the planting of the rainbow flag like the heroes of Iwo Jima planting the American Flag. What a despicable act. Trying to compare their victory to those that really sacrificed just show what will be coming down the road.

          • Dominick Vila

            Bull. The intended meaning of the phrase “the welfare of the people”, clearly means the well being of the people. Since there are very few things more critical to our survival than having access to medical care, the SCOTUS had no choice but to vote the way they did, instead of the Republican way of legislating from the bench, to advance the material interests of corporate America and the elite.

          • mike

            No the Bull is all yours.
            The framers did not intend the meaning Welfare as you so incorrectly claim. Once you read it you will see it says,”general Welfare of the United States” not the general welfare “of the citizens” of the United States.
            Article 1, Section 8, “general Welfare of the United States” only applies to the inner workings of the Federal Government. The Framers could not have made the point any clearer. The words “health” or “health care” appear nowhere in the Constitution.
            So according to the 9th and 10th Amendments, the “right” to health care must be guaranteed and paid for by each individual state.
            Before Obamacare who was DENIED ACCESS TO MEDICAL CARE??
            Did the system need changes? Yes!! What you idiots on the left can’t get through your pea brains is the fact that ACA EVEN NEEDS MORE CHANGES NOW. Nothing Obama promised has happened, cost going up not down, premiums going higher in 2016 as much as 30%., out of pocket and deductibles going higher.
            AS to you last sentence just more diarrhea of the brain.

          • Dominick Vila

            The general welfare of the United States does not refer to inanimate objects. It, clearly, refers to the citizens of the United States.
            Before the Affordable Care Act became law, the only medicare care available to people who could not afford the astronomical premiums charged by insurance companies was emergency care at ER’s. Preventive medical care, including routine visits to doctors, tests, and RX to stay healthy were only available to those with insurance coverage and those who don’t need insurance to pay for whatever they need or want.
            The ACA has been declared constitutional by the SCOTUS, and so have the subsidies that are helping millions of Americans get the preventive medical care every human being needs to stay healthy and live longer.

          • mike

            No, “general welfare of the United States” is all about the inner workings of the government. Nowhere in the Constitution does it have the power over citizens health care.
            Having said that, it is here temporarily for now. It is a poorly written law, it was poorly implemented, and has been proven to do just the opposite that Obama claimed it would do. Even yesterday Obama admitted in TN that premiums are going up, not down as he promised. If an American doesn’t have a company plan they will see increases from 25% to 35% in premiums. Deductions and out of pocket will be more expensive.
            Those signing up are 85% medicaid patients who have actually increased visitations to the ER, not reduced visitations. Now they have insurance and know the visits are FREE they use the ER at their whim.
            You can revel in the decision but in the long run all we have is another entitlement program that will cost this country trillions and continue the redistribution of wealth. All to the detriment of this country.

          • Dominick Vila

            The does not address every single issue. It establishes a framework to be implemented by the government and our judicial system. There are many words missing from the Constitution that involve matters of critical importance to the United States. That does not mean those “words”, or their larger meaning, is not addressed implicitly in the spirit of the Constitution. In any case, jurists much more qualified than we are have already judged on this issue and find the ACA constitutional.
            There are shortcomings associated with the ACA that must be recognized and addressed, but that does not mean the program, which has ended prejudicial practices detrimental to millions of Americans, a program that has helped million of young Americans, and a program that has helped millions of Americans get the preventive medical care we all need to live healthy lives, be productive, and survive, should be repealed or under funded.
            One of the ACA shortcoming is the fact that it does not control the pricing schemes used by the pharmaceuticals and medical equipment manufacturers. Healthcare insurance premiums are not going up because insurance companies are trying to increase their profits, but because sectors of the medical industry have been raising the cost of their RX and medical equipment during the past several decades to the point that it is destroying the entire system.
            Insurance premiums are not going up because of the ACA. The real question is how much higher would they have gone up without the ACA.

          • mike

            “Short coming”, what an understatement. It is nothing more than redistribution of wealth, poorly written, full of lies, costing the American taxpayer for more than they claimed it would.
            I would love to hear the “prejudicial practices” detrimental to millions of Americans. Can’t wait!!
            What you ignore is the fact that Obama made a deal with the Pharmaceutical companies if they went along with Obamacare, he would make sure Congress(Waxman) bill to change the way drugs are bought would die.

            As to Insurance companies, why should they be raising prices as you claim, Obama has guaranteed (3 R’s) if they lost money they will be covered. Anther reason is that people who signed up for their policies in 2014 are running up higher medical bills than the insurers had anticipated. While that could be the product of temporary factors,also fewer healthy people are lining up for coverage in the numbers that either the industry or outside analysts had hoped. If that’s the case and if the trend continues, then insurers are going to have to start raising rates more quickly in the future, since carriers need premiums from healthy customers to offset the high costs of people with serious medical conditions. That will translate into higher costs for the government, as well as some consumers. Remember, the more they charge the more the federal government has to pay in order to subsidize the price for consumers who qualify for financial assistance.
            If this is such a great deal where are the other 20-30 million of people without insurance running to be enrolled They aren’t.
            No you are wrong, premiums and therefore deductibles and out of pocket, are directly related to Obamacare.

          • Dominick Vila

            It takes nerve for a Republican who has no problem with unnecessary warfare to ensure large redistribution of wealth from the public to the private sector, tax loopholes and foreign tax shelters that benefit the wealthy, and subsidies to wealthy farmers and corporations, to speak about redistribution of wealth. Our taxes should be used mostly to guarantee our national security and to guarantee the well being of the populace, not to fill the pockets of an elite and corporations that do not need our help to accumulate more wealth than they already have.
            Unscrupulous practices include the pre-existing condition, artificial caps that forced tens of thousands of Americans to sell everything they had to stay alive, college students not having insurance coverage, the “donut hole” that affected millions of senior citizens, and some unscrupulous doctors only catering to the wealthy, among other inhumane insurance company policies.

          • mike

            “It takes nerve for a Republican ………to speak about redistribution.” I see you are being a hypocrite again. Everything is the fault of Republicans, you really are a joke.
            Democrats have nothing to do with subsidies to farmers and corporations, Right?? If you think that you really are delusional. You seem to forget the Sandlin’s, Pomeroy’, Lincoln’s, Daschle’s who voted for the generous subsidies in the 2008 farm bill. Now who controlled the House? Democrats!! Who blunted any chance for reform? Pelosi! The same Pelosi who embraced the agribusiness agenda. You ignore the 91 Republicans who voted against the 2008 Farm bill. No, you are either ignorant or just a plain liar.
            As to tax shelters, you must have dementia on this subject too.
            As to your asinine comment “prejudicial practices” by insurance companies. They were no more “prejudicial” than the man in the moon. It was a business decision that corporations make to give a return on investment to share holders, who by the way include pension plans. Pension Plans who could have made the decision not to invest in the insurance industry. I never said there was not a need for changes but the changes made were wrong in the long run. Now tell why the other 20 million plus have not signed up for Obamacare, if it is so great. I know you can explain the rise in High Deductible Plans, which by the way has gone from 67% in 2014 to 83% in 2015, can’t you?? I know you can explain why premium have risen, which Obama promised would not. I know you can explain why under a typical year, consumers will pay most, if not all, of their healthcare expenses(300 billion) out of pocket, Which they can’t afford!! Sure the 8-11 million who are enrolled, of which 85% of them are on medicaid-free, love it. But the vast majority who are paying dearly to cover their costs, will see the real redistribution of wealth.
            Watch, next year the rebellion will begin against Obamacare and many of the changes critics have wanted all along will be coming.

      • Robert Eckert

        Why should the “people” decide, rather than the “person”? We are a nation of individual liberty, in which the power of the majority to impose its will on the minority is supposed to be tightly constrained. My liberty to swing my arm does end where it hits your face, but if you (and a bunch of your friends, however numerous) want to forbid me from making my own life choices, for no reason than that you personally would decide otherwise, that is illegitimate.

        • mike


          Individuals, can do what and how we see fit to or for ourselves. We can believe in what we wish. So long as what you or I do does not impede or infringe on the personal liberty of others.

          You can take a swing at me anytime you want, just be prepared for the consequences.

          • Robert Eckert

            But you were demanding that “Democracy” should impede the personal liberty of people who were neither swinging at you, nor asking your advice. If we wanted millions of strangers to vote on whether we made a good couple, we would have gone on Dancing with the Stars.

          • mike

            Not sure what you are smoking but I never said Democracy should impede personal liberty.

            You best go look up the definition of Democracy.

            What i do know, which you can’t comprehend, is the fact that the SUPREME COURT DEPARTED FROM THEIR MANDATED CONSTITUTION ROLE TO LEGALIZE GAY MARRIAGE. SCOTUS basically threw out the 10th Amendment.

            Chief Justice Roberts said the majority opinion was “an act of will, not legal judgment.”

            What will be coming down the road is the destruction of the Church by removing its Tax Exempt. Anti religion forces(ACLU) will do everything they can to dismember religion in this country All Christians who belief in a marriage of a man and woman, will now be called bigots, etc., if they disagree.
            Democracy did take a hit!!

          • Robert Eckert

            ” I never said Democracy should impede personal liberty” Yes you did. You said it was the death of democracy for people to be allowed to make their own choices.

            “You best go look up the definition of Democracy” It does not mean that the majority can impose its will on the minority in every case. We are a constitutional republic in which the individual, not the majority, is permitted to make most choices.

            “SUPREME COURT DEPARTED FROM THEIR MANDATED CONSTITUTION ROLE TO LEGALIZE GAY MARRIAGE” Screaming it out loud doesn’t make it any truer. Interpreting the Constitution is precisely their role.

            “SCOTUS basically threw out the 10th Amendment.” The 14th Amendment was enacted because we no longer trusted the states as much as before the Civil War. It does not change the scope of what subjects a state can legislate about, but does require that the state’s laws are applied equally. For any distinction which the law draws, there must be a reason offered. No rational basis for distinguishing opposite-sex from same-sex couples was ever given, and thus the law must apply equally.

            “Chief Justice Roberts said the majority opinion was “an act of will, not legal judgment.” ” He said a lot of absurd things in his rant, including things which would invalidate his own right to care for his own adopted children (it is fortunate that they are grown now). He was not as unhinged as Scalia, but it is fortunate for the country that they are outvoted.

            “What will be coming down the road is the destruction of the Church by removing its Tax Exempt” I doubt that there would be enough support any time soon for this to happen (certainly not until the Republicans lose Congress), but it’s an entirely separate issue, except insofar as behavior by the churches has damaged their standing with the public.

            “All Christians who belief in a marriage of a man and woman, will now be called bigots” If you believe in marrying someone of the opposite sex, then do so. No-one is stopping you or objecting to that. This will continue as before. The only thing that gets you called bigots (rightly so) is when you believe in interfering in OTHER PEOPLE’S lives who don’t believe as you do (and should not be compelled to).

          • mike

            No, again!!! Here is what I said.

            mike Dominick Vila • 3 days ago

            No Dom, it is a huge loss for Democracy. The decision can be compared to the decision to “the invention of the right to abortion.” We are in a new place, it can no longer be debated, all laws are cancelled, Democracy took another hit, judges have the power to say what the law is, not what it should be.

            This decision short-circuits the political process that has been underway on the state level for years. The Supreme Court decision follows public opinion polls, and tramples on states’ rights that were once protected by the 10th Amendment of the Constitution. Our founding fathers did not intend for the judicial branch to legislate from the bench.

            Again what you are too ignorant to understand is that 5 unelected judges went against the majority of Americans and made a decision that was not part of their Constitutional role.
            As to Choice. tell us all what choice you had in Obamacare???Did you have a Choice in what you wanted in your plan?? Did you have a Choice if you wanted to participate??

            The attack on religion will go forward full bore, now more than ever before. Anti-religion ACLU is just getting started on many levels.
            I personally don’t care what gays do but to shove down the throat of Americans who disagree by coloring the WH or staging the flag raising on Iwo Jima by a bunch of buffed gay men shows what the nation is in store for in the future. I get your hatred of religion.
            Your secure progressive stand is will document but to think I have to conform to your idiocy is complete baloney.

          • Robert Eckert

            “Here is what I said.” Yes, I know what you said. You compare it to abortion, which I don’t want to argue with you, but the two sides are: one says, you don’t want an abortion, don’t have one, but why do you and your neighbors get to decide for someone else who does not believe as you do? and the other says, the reason is to protect the unborn child. Well who are you protecting in this case? You are simply asserting a right to make decisions for someone else, who does not believe as you do, and more importantly, is not injuring you, or anyone else, so that you have no rightful reason to claim that the majority should impose itself on the minority.

            ” tramples on states’ rights that were once protected by the 10th Amendment ” States have no “rights”: only people have rights. States have powers. The powers of the states are limited by the 14th amendment’s requirement that the state exercise its powers in an equitable manner.

            “what you are too ignorant to understand is that 5 unelected judges went against the majority of Americans” You are doubly wrong here. As you yourself just pointed, they were actually in accord with what the majority of Americans want. BUT THAT DOESN’T MATTER. The point is that we are a country of individual liberty, where decisions are not made by majority vote unless there is a necessity for it: otherwise, everybody gets to decide for themselves. You have shown no reason whatsoever why the majority should be able to decide what two people, strangers to almost all of them, should or shouldn’t be allowed to do. You need to show some reason why letting those two commit to living their lives together, with the same legal protections for their ability to take care of each other that other couples have, would do any injury to anyone else. If you cannot show that, then mind your own business.

            “made a decision that was not part of their Constitutional role. ” Uh, this is EXACTLY what their constitutional role is.

            “Did you have a Choice in what you wanted in your plan??” I do now. For fifteen years prior to that, I was unable to obtain health insurance at all. But as with abortion I would prefer not to debate tangents that you want to shoot off onto, to evade your inability to provide a single reason supporting your position on this issue.

            “The attack on religion will go forward full bore” Religion has been attacking me, all my life. I have good Christians leave me unconscious on railroad tracks with a train coming, and a good Christian point a gun at me while calling me a child molester and assuring me I would burn in hell. Religion has turned off a lot of straight people, too, who know what friendship and empathy are. Whether religion will continue to decline in America is really up to you: what do you want to turn “religion” into? A medieval version of religion is bound to die out.

          • mike

            After reading the last paragraph of your post I know even now what a pathetic individual you are.

            “Christains leave me unconscious on track”, what a load of crap. You were unconscious but you knew they were Christains!! How ridiculous and delusional. I bet they each had a Big “C” on there forehead, Right??? That’s how you knew them to be Christains, pathetic.

            As to your “molester” incident, there is always two sides to any story and in your case much more.

            I bet you believe that being a Pedofile is normal, and therefore OK, much like the “normal” argument used over the years for gays. Not too long ago Rutgers-Camden professor Margo Kaplan declared that “pedophilia is not a crime, rather a condition one might be born with.” This is how the argument was made that homosexuality might in fact be normal. She also declare that pedophilia should be considered a human right because people who identify as having sexual orientations towards young children are often marginalized because they have to keep their orientations to themselves.
            SCOTUS was wrong and the rest of the country has lost the right to vibrant debate and the court has “enacted their version of marriage.” No matter what you try and claim, the courts decision was an “act of will, not legal judgment”.

          • Robert Eckert

            “You were unconscious but you knew they were Christains!!” They’d spent an hour talking to me about whether I was right with Jesus, seemed friendly enough that I let them give me a ride.

            “I bet you believe that being a Pedofile is normal” No, you son of a bitch. I think it is a very horrible crime. I also think the casual willingness of good Christians like you to make slanderous accusations that other people are pedophiles is very horrible (slanderous lies are strongly condemned in the Bible, if you care).

          • mike

            You were unconscious but you knew they didn’t help, just more of your delusion and bias.
            There must have been a very compiling reason for them to call you a “molester”, so I don’t believe your statement against Pedophilia.
            As I said much earlier the attack by your ilk on Christianity, norms and our moral fabric is in full bore.
            We now have a gay man suiting Bible publishers for 70 million because the world homosexual is in the Bible.
            Lois Capps, Democrat from CA and 12 other democrats are putting forth a bill that will replace “gendered terms” like Husband and Wife to be changed to “gendered neutral”, words like Spouse or married couple.
            Her bill is aimed to ensure the U.S. Code “reflects the equality of all marriages.
            Masha Gessen a big Homosexual activists and journalist, claims the goal is to destroy the institution of Marriage.

          • Robert Eckert

            “You were unconscious but you knew they didn’t help” HELP??? They’re the ones who rendered me unconscious and left me there.

            “There must have been a very compiling reason for them to call you a “molester”” That was an entirely different person, who had no reason except that he knew me to be a homosexual and, like you, thinks all homosexuals should be accused of being pedophiles. Many Christians, like you, think nothing of inventing foul lies against people they know nothing about, in order to excuse violence and cruelty. Proverbs 6:16-19 here are six things the Lord hates,
            seven that are detestable to him:
            17 haughty eyes,
            a lying tongue,
            hands that shed innocent blood,
            18 a heart that devises wicked schemes,
            feet that are quick to rush into evil,
            19 a false witness who pours out lies
            and a person who stirs up conflict in the community.

          • mike

            As I have said before there is much much more to your stories than you are giving.
            So I don’t believe you!
            It might be a good idea that you follow those in Proverbs.

            To place all Christains under one category, because of your presumption of the facts shows just how ridiculous you are.
            You have an agenda against people who disagree with you and your aberrant lifestyle, which is fine, but that doesn’t mean you are right.
            Lev 18:22-23
            1 Cor 6:9
            Tim 1:9-10
            There are more!!
            God loves sinners, but condemns sin. Its about behavior not condition.
            What I do know is after the SCOTUS decision, there is a push by the gay community to destroy the moral fabric of this country, as seen already by lawsuits and legislative bills to push an agenda by a very small minority of people in this country, All to the detriment of society.

  • 2ThinkN_Do2

    Forward and backward are not as clearly discernible amongst society as they are as a motion.

  • j.martindale

    They are called “Justices” for a reason. They are more than simple “law”yers. I pray for a Supreme Court where justice consistently tempers decisions. Our legislatures and executive branch will always be subject to the whims of the powerful–whether it be a majority, sometimes whipped to a fury by demagogues, or by money. The ultimate hope of the poor, the outcast, the minority, the oppressed is a fair hearing in the courts. If it takes sometimes treating the law as a living, breathing, growing creation, so be it. Dead words, unchanging ideals, rules set in stone–they are the pants of the child Jefferson described that society sometimes outgrows. We need a court that can grow with our understanding of justice.

  • Carl Sdano

    Given that even our founding fathers, Jefferson, Madison, Monroe, et al argued over the meaning of the constitution at times, charges of judicial activism rendered often by opposing parties are for the most part rendered moot. The constitution is a living document to be interpreted by hopefully wise justices, tempered by times & circumstances.