By Dr. Norman Berdichevsky
The two recent Supreme Court decisions on the Arizona immigration law and the Health Care Act have astounded, perplexed and aggravated many Americans, perhaps the great majority, including those on both sides of the issue.
How can a reasonable, educated and knowledgeable citizenry integrate the self-contradictory decisions that defy common sense?
In each case, an initial ruling is made impossible to enforce and, by changing a name, states that something that looks like a duck, walks like a duck, acts like a duck and sounds like a duck must be called an ostrich.
Most Americans must conclude that when the gap between common sense and the rulings of the Supreme Court is so enormous that they make all the jokes they have ever heard about lawyers seem understated.
Only those familiar with the Old Testament story of King Solomon deciding to split the baby in two to find out who the true mother is can rival the Court’s tortured logic and the impossible task of implementing policies when faced with the outcome of such decisions.
In the Arizona case, the police are told to go ahead and inquire about the citizen status of suspects held for an offense on a justifiable suspicion that they may be in the country illegally (i.e. against the law) which is an offense, for which there are prescribed penalties (on paper).
In additional decisions, the court and the government then specify that the state authorities are not entitled to follow up a determination of illegal status by forwarding the information obtained to the relevant federal authorities in the Dept. of Homeland Security and/or the Dept. of Justice for any subsequent action unless it can be determined that these suspects have committed serious felonies or been deported in the past.
The same contradiction is found in not disabling the health care bill that was debated and passed under misleading guidelines and the additional Supreme Court decision to accept the suit of the 26 state attorney generals on behalf of their states to “opt out” from the Medicaid provisions.
In the decision on the health care bill, the government’s primary case sold to the public and initially presented to the court as part of their legal authority under the commerce clause was thrown out only to be resurrected by the justices finding that the measure can be considered within the authority of the Congress as a tax.
“The Judgment of Solomon” has become a metaphor referring to a wise judge who uses a stratagem to determine the truth, tricking the parties into revealing their true feelings. The judge pretends that he will destroy the subject matter of a dispute, rather than allowing either disputing party to win at the expense of the other.
The Biblical story is recounted in 1 Kings 3:16-28. Two young women who lived in the same house and who both had an infant son came to Solomon for a judgment. The first claimed that the other, after accidentally smothering her own son while sleeping, had exchanged the two children to make it appear that the living child was hers. This was vehemently denied and so both women claimed to be the mother of the living baby and that the dead child belonged to the other.
Solomon after some deliberation declared that the only just solution would be to take his sword and cleave the baby in two parts whereupon the real mother cried out, “Please, My Lord, give her the live child—do not kill him!”, whereas the liar in her jealous rage declared that “It shall be neither mine nor yours—divide it!”.
Using his innate wisdom, Solomon knew that a real mother’s instincts would be to preserve the child alive.
Since then the expressions “splitting the baby” or “cutting the baby in half” have generally been applied as a metaphor to relate to the need to find a simple compromise solution which “splits the difference” in terms of damage awards or other remedies.
If taken literally however, such a solution threatening the life of the child is never even a “starter” because no child can survive or emerge unscathed.
During the long struggle in the United States to adopt a national prohibition law – (18th amendment to the constitution in 1919), proponents knew then that such a colossal change in altering public habits under the guise of health, protecting innocent women and children from the abuse of alcoholics or diminishing the rate of violent alcohol related crime could not be passed by a simple majority of the Congress.
The enormous ratifications to the national economy and law enforcement were only remotely envisioned. Only a referendum to alter the constitution could justify such a radical measure – as radical as ObamaCare is today. No one imagined that the Congress could conjure up such a lame excuse as the “commerce clause” as was concocted for ObamaCare.
Only a constitutional referendum with its major hurdles of securing approval of three quarters of state legislatures would be sufficient. After 13 years of real life experience with this monstrosity that proved how it was a failure on all fronts, a subsequent amendment (the 21st) abolishing it was easy to achieve.
Let us hope and pray that it will not take as many years for the public to demand ObamaCare’s abolition. A simple change in the White House and Senate majority will be sufficient.
Norman Berdichevsky is a native New Yorker who lives in Orlando, Florida. He holds a Ph.D. in human geography from the University of Wisconsin-Madison (1974) and is the author of The Danish-German Border Dispute (Academica Press, 2002), Nations, Language and Citizenship (McFarland & Co., Inc., 2004), Spanish Vignettes; An Offbeat Look into Spain’s Culture, Society & History (Santana Books, Malaga, Spain. 2004), An Introduction to Danish Culture (MacFarland, 2011) and The Left is Seldom Right (New English Review Press, 2011). He is the author of more than 200 articles and book reviews that have appeared in a variety of American, British, Danish, Israeli and Spanish periodicals such as World Affairs, Journal of Cultural Geography, Ecumene, Ariel, Ethnicity, The World & I, Contemporary Review, German Life, Israel Affairs, and Midstream. He is also a professional translator from Hebrew and Danish to English and his website is here.
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