Thursday, July 30, 2015

Ranking the U.S. Presidents

This is analysis I did five years ago, and posted in six separate posts. It is time to consolidate the posts into one.

                                                     The Great Ones
 1. George Washington. This one is a complete no-brainer.

2. Thomas Jefferson. Washington was above party politics, but his successor, John Adams, took the country deep into party politics to very dangerous levels. To John Adams and the Federalists, anybody who disagreed with them was a traitor and needed to be prosecuted as such under the Sedition Act. This led to many opposition newspapermen being jailed under the odious Sedition Act during the Adams administration.

Jefferson, to his great and everlasting credit, recognized the evil of this, and respected and understood the Constitution enough to understand that this was contrary to what America was all about. He freed all the imprisoned newspapermen, the Federalist party died out, and Jefferson's concept of our government prevailed. We owe him more thanks than we can ever give him. Just think what kind of country we might have ended up with had Adams beat Jefferson in 1800 and the Federalists remained in power. One shudders at the thought.

3. Teddy Roosevelt. I take seriously the concerns that people have for TR's bullying attitude toward Latin America. However, this was normal for his day. It does not detract from the great good he did to put this country on the right direction in so many areas--trust-busting, starting the FDA, environmentalism, brokering peace between Russia and Japan, and on and on. He is truly one of the great ones.

4. James Monroe. Historians seem unable to rank any President as "great"unless there was some great crisis that he had to confront during his Presidency. Hence, they rank Monroe only 14th. However, a closer examination of his Presidency shows he was a great President. He tried hard to be President of all the country, appointing Cabinet members from each sector, and visiting each sector while in office. His Secretary of State, John Quincy Adams, served for the entire 8 years, and is widely regarded as the best Secretary of State ever. Similarly, his Vice-President, Daniel D. Tompkins, gets less recognition but as governor of New York was widely recognized as making important progressive reforms in such things as humane treatment of prisoners, and humane treatment of native Americans. In short, Monroe has no negatives and huge positives, and deserves a place among the great ones.

                                                      The Good Ones
 4. Harry Truman. Truman left office with a horrendously low approval rating. However, his ranking in the eyes of historians has risen steadily and in the most recent such ranking he was at #5.

The more we learn about Truman the better he looks. David McCullough, in his fine biography of Truman, relates how Truman made a point to learn the first name of every member of the White House staff. He would regularly greet them by name and ask about their families. One guy said, with tears in his eyes, that he had worked at the White House for 40 years and no previous President had ever bothered to ask him for his name.

The Marshall Plan is instructive. Polls at the time showed that only 18% of the American people favored massive aid to rebuild Europe. Yet, Truman forged ahead, knowing it was the right thing to do. And history has proved him right in this. This is a welcome contrast to current approaches of taking actions based on the latest poll. (And it's not just politicians that are among the guilty; journalists, to their eternal discredit, play into this by constantly citing polls and asking politicians about the polls.)

I would put Truman among the great Presidents except that his Cold War policies do not stand up under the scrutiny of history. Jim Juhnke and Carol Hunter, in their book "The Missing Peace", document how the Soviets viewed the race as a political and economic one, but the Truman Administration mistakenly saw it as a military conflict and thus we had the Cold War. George Kennan, architect of the post-WW2 policy of containment, later disavowed the way the policy had been carried out. Kennan's view was that "a post-war political struggle between the U.S. and the Soviet Union was inevitable. The runaway arms race and global militarization were not." Juhnke and Hunter state that official documents released since the breakup of the Soviet Union confirm the accuracy of Kennan's view.

My sixth-grade teacher told us that we would all perish from nuclear annihilation before we reached adulthood. This was the sort of cloud that my generation grew up under, and it is directly traceable to Truman's misguided policies.

5. Rutherford B. Hayes. Hayes always did what he felt was best for the country, rather than for his party. His integrity was unquestioned, which was a welcome switch from the scandal-ridden Grant era.

6. Dwight Eisenhower is another President whose stock has risen since he left office. I recall an analysis at that time that predicted that future historians would paint him negatively as a hands-off President who preferred to spend his time on the golf course rather than dealing with the affairs of state.

However, we now know that Ike was a firm and steady advocate for peace. He ended the Korean War. In 1955 he single-handedly prevented war in the Middle East, by pressuring British PM Anthony Eden to back away from military intervention. It is well-known that when he left office he famously warned against the "military-industrial complex"; less well-known are other similar warnings he gave throughout his tenure as President.

In Bob Considine's memoirs, "It's All News to Me", he recalls a reporter asking Ike in 1951 whether he believed in "socialized medicine". Ike's response was that he didn't like that term, but he felt that "everyone should have free medical care". This reflects Ike's true sensibilities. What is striking is how far Republicanism today has strayed from Republicanism of the 1950's. Today the party has degenerated into "the party of no", and it is common for measures to have the support of, at best, a small handful of liberal Republicans and that's it.

But in the past it was not so, as demonstrated by an analysis of past votes on innovative social programs. In an article in a recent "Christian Science Monitor", Robert S. McElvaine gives the following analysis of Senate Republican votes (House numbers are similar): Social Security Act of 1935--76% for; Civil Rights Act of 1964, 80% for; Voting rights Act of 1967, a whopping 97% for!; Medicare in 1965, 43% for. Then we fast-forward to 1993, and find a grand total of *zero* Republicans voting for Clinton's budget, because it included a modest increase in the top marginal tax rate. Republicans predicted the tax increase would cause the economy to collapse. What resulted, instead, was the longest stretch of economic growth in US history, and eventually a budget surplus by the time Clinton left office. And of course we know none voted for Obama's health care reform bill. It has been said that Obama's positions are quite similar to those of Republicans in the '50's, and I think this is a fairly accurate appraisal.

7. Bill Clinton. Another President who is likely to rise in the eyes of historians as time goes on. He took a deficit which had ballooned under the disastrous 12 years of Reagan and the first Bush, and turned it into a surplus by the time he left office. He was a master politician, something essential in dealing Congress and with the American people. Nobody did it better.

8. John F. Kennedy. Great motivator of people and a great leader. His speech taking responsibility for the Bay of Pigs fiasco should be studied and emulated, but rarely is. Although it was under Eisenhower that the foray into Cuba was planned, he manned up and took full responsibility, in a way that subsequent Presidents have seemed unable to do.
 9. Franklin D. Roosevelt. Historians rank FDR second, but the more I learn about FDR the less I like him. I suppose his high esteem among historians could be attributable to three general reasons: 1) His oratorical skills; 2) His New Deal policies; and 3) Turning a blind eye to his many negatives. His oratorical skills are obvious, but surely it takes more than that to be great. I will examine the other two factors.

9.  Franklin D. Roosevelt. The New Deal was a valiant effort, but the evidence discloses that it did not pull us out of the great depression, so in that sense it can be regarded as a failure. David M. Kennedy, in his great book "Freedom from Fear", sums it up like this: "It might be well to begin by recognizing what the New Deal did not do, in addition to its conspicuous failure to produce economic recovery. Much mythology and New Deal rhetoric notwithstanding, it did not substantially redistribute the national income. America's income profile in 1940 closely resembled that of 1930, and for that matter 1920....Nor, with essentially minor exceptions like the TVA's electric-power business, did the New Deal challenge the fundamental tenet of capitalism: private ownership of the means of production. In contrast with the pattern in virtually all other industrial societies, whether Communist, socialist, or capitalist, no significant state-owned enterprises emerged in New Deal America."

My own research reveals that unemployment peaked at 24.9% in 1933, and by 1938 it had fallen only to 19.0%. Surely this is not a significant improvement after five years of strenuous efforts, so one must conclude that the New Deal did not deliver. What got us out of the depression was an armaments buildup starting in 1939, which in two years increased U.S. manufacturing output by 50%!

Now we come to all the negatives. If FDR was interested in real change, he would have supported Upton Sinclair for governor of California in 1934. Sinclair traveled to Washington to meet with FDR and left thinking he had his endorsement, but it turned out FDR had no intention of endorsing him (but wasn't man enough to tell him this to his face). The reason is that Sinclair was an advocate of real change, not the phony change FDR was pushing.

Another advocate of real change became FDR's implacable foe. This guy was Huey Long of Louisiana. FDR was so afraid of a challenge from Long in 1936 that he sent 50 FBI agents to Louisiana to try to dig up dirt on him! This represents a shocking abuse of power, but is revealing in the way FDR was more worried about perpetuating his own power than he was about doing the right thing. It was a precursor to the abuses of power another president, Richard Nixon, later inflicted on the nation.

A few years later we have the boatload of Jews fleeing the Holocaust, which FDR refused to let into the country. The shocking insensitivity of this is mind-boggling. The Jews were returned to Europe where most perished in the Holocaust.

And then there is the concentration camps for Japanese-Americans during World War Two. Completely unjustified and opposed to our principles as a country. Similarly, FDR refused to desegregate the armed forces, which he could have easily done, and in fact Truman did do a few years later. If Truman could do it, why didn't FDR?

FDR's running again in 1944 was his final insult to the American people. Jim Bishop, in his book "FDR's Last Year", relates how during his entire last year FDR would get a complete physical exam every morning and every evening. The doctors would constantly be telling him to get more rest, even though he was already spending most of every day in bed. Bishop says that the doctors never told him how sick he was, and FDR never asked. But he had to have known it, anybody would have known under these circumstances!

Despite this, in a shocking display of hubris, FDR ran again in 1944. According to Bishop, his constant comment was that he was not going to desert the troops serving under him as Commander of Chief during a war, any more than he would expect any other soldier to desert his post. This analogy is bogus, it just does not hold water. In point of fact, FDR was dead less than three months of his fourth inauguration, and he died without telling his new Vice-President, Harry Truman, about the atomic bomb! The fact that he did not bring Truman into the information loop, especially given the likelihood of his dying, is inexcusable. Again, unforgivable hubris.

A great President? I think not. But worthy of being at the bottom of the "good" category based on his accomplishments.

                                                      The Average Ones. 
These are not that interesting to write about, so I won't deal with them one by one. Included in this category are those whose terms were cut short, and Obama, who will need to be out of office awhile before an intelligent evaluation can be made.

                                                        The Poor Ones.
 34. Abraham Lincoln. It is customary to place Lincoln at or near the top, but how can that be justified when he has the blood of 620,000 dead Americans on his hands? Historians seem to accept without questioning that the Civil War was a good thing for the country, when careful scrutiny reveals just the opposite!

Lincoln was just plain wrong on so many levels, it is hard to know where to begin. Let us start on a basic issue--the legality of secession. First, let us note that the Constitution says nothing about secession, either pro or con. Thus, we need to read the document as a whole and infer what the founders intended.

When we do this we see that the founders intended that the federal government would have only those powers specifically delegated to it by the Constitution, and the states (or the people) would have all remaining powers. Any fair reading of the Constitution as a whole thus leads to the conclusion that secession is not illegal, and Lincoln was therefore wrong in assuming as such.

James Ostrowski has undertaken a detailed scholarly analysis of this issue, and his conclusion is: "In 1861, the Constitution did not authorize the federal government to use military force to prevent a state from seceding from the Union. The Constitution established a federal government of limited powers delegated to it by the people, acting through their respective states. There is no express grant to the federal government of a power to use armed force to prevent a secession and there is no clause which does so by implication. To the contrary, the notion of the use of armed force against the states and the subsequent military occupation and rule of the states by the federal government does violence to the overall structure and purpose of the Constitution by turning the servant of the states into their master. Any doubts about whether the federal government had such a power must be resolved in favor of the states since the Ninth and Tenth Amendments explicitly reserve the vast residue of powers and rights to the states and to the people of those states."

Lincoln in his July 4, 1861, message to Congress seeking support for his war effort, complains bitterly about the South's use of the term "secession". Lincoln insisted throughout the conflict that "rebellion" was a more appropriate term. He accused the South of "an insidious debauching of the public mind". The irony here is that it was Lincoln himself doing the debauchery, for the term "rebellion" does not at all describe the peaceful act of seceding, which was what the south was trying to do. The word "rebellion" refers to an armed conflict. It is derived from the Latin "rebellio", meaning as such. By casting it in terms of what the Constitution defines as treason, Lincoln deliberately inflamed this issue and pushed the North into a war, while engaging in the sort of abuse of language that tyrants the world over have done throughout history. The old saying which comes to mind is, "If you tell a lie often enough, people will start believing it." Well, Lincoln told this lie repeatedly.

Our country was started by an act of secession, wherein the colonies split from England. There are numerous examples in recent history where acts of secession have taken place, without any question being raised as to their propriety. Rather than belaboring this, I will end with a plea that folks think for themselves about things like this, without being brainwashed by the slanted history books.

 35. John Adams. Adams rates this low because of his use of the Sedition Act to imprison newspaper editors who disagreed with his policies. This sounds so unAmerican in retrospect that it is hard to believe that this was once standard policy. And it might have continued to be standard policy had Adams and the Federalists remained in power. Thank God for Jefferson!

Adams stays out of the "horrible" category by virtue of avoiding the war with France which seemed imminent during his administration. For a more detailed analysis of the Adams administration, see my essay at

36. Jimmy Carter. It is fine to campaign as an outsider, but once you achieve power you have to know how to use it. This Carter never figured out how to do. He started out on the wrong foot when Speaker of the House Tip O'Neill could not even get a seat at the Inauguration, but rather had to stand in the back! And he ended on a horribly wrong foot when he ignored the advice of his intelligence people and let the Shah of Iran into the U.S. He had been told our embassy in Iran would be in jeopardy if he did this, and the embassy ended up getting overrun and the hostages taken. Carter's excuse was that the Shah needed medical treatment he could only get in the U.S. I accepted this at the tine, but later it came out that the Shah could have received the same treatment in Mexico City, as the doctors were willing to go there to treat him. So, the President who promised he would never lie to us had lied to us.

37. Ronald Reagan. Reagan made one of the most despicable comments ever when he said that "Government is not the solution to the problem, it *is* the problem." This attitude led to greed becoming fashionable, and regulation unfashionable, which in turn led directly to the financial meltdown of the 2000's. Reagan saddled us with a huge debt due to his fiscally irresponsible budgets, and he spent many billions in unnecessary defense expenditures.

It is common in some circles to credit Reagan with the demise of the Soviet Union. However, this thesis does not stand up to analysis. In their book "The Missing Peace", Juhnke and Hunter summarize the situation like this: "The 'Reagan victory' thesis will continue to be popular among right wing militarists, but it suffers from its limiting assumption that great world events must have their primary origin in the United States. It also ignores the Soviet historical inclination to respond to external military pressure with new repression and military escalation. The end of the Cold War was triggered not by an American military buildup, but by the economic failings of the Soviet Union, by the reforms of Mikhail Gorbachev, and by the timely witness of international scientists who wanted to protect the world from nuclear holocaust."

In his memoir "Deadline", veteran journalist James Reston offers candid assessments of each of the many presidents he has covered in his long career. Two passages about Reagan: "Most people liked his carefree style. He announced when he arrived that it was morning in America, but he didn't like to get out of bed. Unfortunately, when he wasn't looking, which was not unusual, some of his own officials assumed that they had a license to steal or break the law. It wasn't only that he was absent from Washington more than nost presidents but that he was often so absentminded when he was in the capital that he had the msot expensive banking and housing scandals on record and didn't even notice them."

Alos, "He arrived in Washington full of fairy tales and nursery stories, but the movie moguls never ventured to produce a story as fantastic as Reagan's. He not only proved that nice guys finish first--Hollywood's favorite theme--but he also made government popular. He thought that government was 'too big' but presided over the biggest government in the nation's history. He recommended religion, but seldom went to church. He was divorced and not close to his children, but preached family values. If it hadn't been for his indolence, his ignorance would have been intolerable..."

38. Andrew Jackson. Jackson's forcible removal of Native Americans to Oklahoma is one of the sorriest chapters in U.S. history, violating the spirit, if not the letter, of the Supreme Court's decision in Worcester v. Georgia. After that opinion was rendered Jackson is reported to have said, "John Marshall has made his decision; now let him enforce it." Whether Jackson actually said this or not is not the point--the point is that this accurately represented his viewpoint. Quite a conflict between the judicial and the executive branches of government could have ensued had other Presidents been as nasty and full of ill will as Jackson was.

39. Warren G. Harding. It is customary to put Harding at or near the bottom, but new research by John Dean sheds a different light on this president. History books tell us that Harding got the 1920 Republican nomination by virtue of party leaders gathering in a "smoke-filled room", putting Harding under a cloud right from the get-go. Dean disputes this, saying Harding had a well thought out plan going into the convention, of letting the leaders knock each other out, and then he would gradually pick up steam which is what actually happened.

Dean says Harding was very popular, and would have been re-elected in a landslide had he lived. The scandals among his people came to light later, and did not involve Harding personally.

Harding deserves credit for commuting the sentence of Eugene Debs so that Debs could be released from prison, and then inviting him to the White House. This was a humanitarian gesture which his predecessor, Woodrow Wilson, had repeatedly refused to do despite the repeated recommendations of his Attorney General that Debs be pardoned.

40. Lyndon B. Johnson. Because of his ego, Johnson refused to admit that the Vietnam War was a mistake, and tens of thousands of young Americans died as a result. Many more came back badly damaged, either physically or psychologically, and the country is still dealing with the after-effects of this horrible war which divided the country and was totally unnecessary, based as it was on a false domino premise. Civil rights advances and the war on poverty are positive achievements which keep him out of the "horrible" category.

41. Richard Nixon. Used the power of the federal government to persecute his political enemies; misused the FBI and CIA and IRS to further his personal agenda. Did have a good grasp of foreign affairs, and deserves credit for opening the doors to Russia and China, which raises him above the "horrible" category.

                                                              The Horrible Ones
42. George W. Bush. Just as Monroe ranks as "great" because everything he did of significance he did well, so W ranks as "horrible" because everything he did of significance he did poorly. He left us with two wars, a horrible national debt, declining prestige around the world, and the worst recession since the great depression. Some of his appointees were among the most inept ever in their jobs.

43. Ulysses S. Grant. Presidential historian Richard Shenkman, in "Presidential Ambition: How the Presidents Gained Power, Kept Power, and Got Things Done", observes that Grant's is the first administraion "filled with people who wanted to use government connections to become rich". The corruption was so pervasive that the final count was 230 indictments and 110 convictions. His chief of staff (in today's vernacular) was put on trial for corruption in St. Louis, based on his involvement in the "whiskey ring", and Grant wanted to take a train there to testify on his behalf. When his cabinet talked him out of that, he gave a deposition in the White House saying that if Babcock is guilty, then he, Grant, is guilty also. When Babcock was acquitted, Grant wanted to hire him back and his cabinet again had to talk him out of it, so Grant gave him another job and let him stay on the federal payroll! Incredible.

Wednesday, July 15, 2015

Zivotofsky v. Kerry

This is a Supreme Court case decided on June 8, 2015. The issue involved in the case is a rather unusual one for a Supreme Court case.

In 2002 Congress enacted a law mandating that American citizens born in Jerusalem can request that their place of birth be listed as "Israel" on their passports. Since the official position of the U.S. has always been that it recognizes no country's sovereignty over Jerusalem, the State Dept. records the place of birth in such instances not as "Israel", but rather as "Jerusalem". Plaintiff Zivotofsky filed suit to require that his passport reflect the Congressional mandate.

The majority interpreted this as requiring that the official U.S. policy on recognition of a foreign sovereign be changed. Since the Constitution does not specifically say that diplomatic recognition is solely the province of the executive, the majority ruled by analogy from other powers that the executive does have under the Constitution, such as the power to receive ambassadors from other sovereign countries. The court also looked at the historical record, beginning with Washington's recognition of the new government in France following the revolution there, and doing this without consulting with Congress. Based on both of these analytic threads, the majority concluded that the Congressional mandate in question was invalid, because the power to recognize foreign governments rests solely with the executive branch.

This was a 5-4 decision, with the conservatives dissenting, three of them dissenting completely and Thomas dissenting in part (he felt that it was OK for Congress to make its requirement for consular reports of birth abroad, but not for passports).

Roberts' dissent emphasizes that this is the first time the court "accepted a president's direct defiance of an Act of Congress in the field of foreign affairs". Roberts expressed doubt that the president's power of recognition is exclusive. But he then goes on to say that "even if the president does have exclusive recognition power, he still cannot prevail in this case, because the statute at issue does not implicate recognition".

Scalia filed a separate dissent in which he took apart the majority's position more systematically. Scalia notes that Congress has power over passports, due to the clause in the Constitution giving it power to establish a "uniform Rule of Naturalization". This really decides the issue, other than noting that putting "Israel" as the nation of birth on passports for kids born in Jerusalem does not equate to recognition of Israel's sovereignty over Jerusalem. Scalia's conclusion, then, is that "the court's decision does not rest on text or history or precedent".

Some observations:

Scalia vs. Thomas. Scalia and Thomas really sniped at each other in their respective dissents. They called each other by name over and over, in their attempts to specifically refute the other's arguments.

Kennedy again the swing vote. Kennedy wrote the opinion for the majority. This was one of many cases in which the four-member liberal bloc stuck together in this term, which was a very successful one for the liberal side. Part of this success is due to the four sticking together, and speaking with one voice rather than sniping at each other as the conservatives sometimes did. And they were happy to allow that "one voice" to be another justice, as in Kennedy here, with Roberts occasionally filling this role in other cases.

Breyer's position. Breyer filed a two-sentence concurrence stating that he believes the case presents a political question which the judicial system should stay out of. But he joined the majority because "precedent precludes resolving this case on political question grounds."

Roberts' deference to Congress. It has been noted that Roberts was the only justice to defer to the legislative branch on both the Obamacare and the gay marriage decisions. In this case, he again demonstrates that same deference to the legislative branch, which presumably is speaking the will of the people.

So who's right?  This seems to be one of those hard cases that makes bad law. Jerusalem is such a sensitive issue on the international stage, that the majority felt it crucial that the U.S. speak with one voice on that issue. And the majority obviously agrees with the position of the executive branch here, rather than the legislative branch.

The idea that the relatively innocuous act of listing a kid's place of birth as "Israel" on his passport amounts to recognition of Israel's sovereignty over Jerusalem is silly. And, as Scalia points out, if there was indeed any real confusion about this, the president could easily issue a statement clarifying his administration's position on the matter. So, the dissent is legally correct.

Saturday, July 11, 2015

ACLU Turns Its Back on Sweet Cakes

I'm a liberal but I've never been enthusiastic about the ACLU. News recently that it has come out against the free speech rights of the Sweet Cakes owners has helped me to understand the reasons why.

Organizations the ACLU has represented in the past include the Ku Klux Klan and the Westboro Baptist Church. Individuals include Kareem Abdul-Jabbar, Arthur Bremer, David Duke, Sean Hannity, Ted Kaczynski, G. Gordon Liddy, Rush Limbaugh, Oliver North, Sirhan Sirhan, and George Wallace. Really no reason here for a liberal to support this organization.

The Sweet Cakes owners have recently been victimized by an administrative ruling that they are prohibited from talking about their refusal to bake a cake for a lesbian wedding. This is in addition to the absurd amount of $135,000 they have been ordered to pay for "pain and suffering" of the two lesbians. The "talking" which the labor dept. bureaucrat complained of in his ruling was describing what happened to a reporter, and posting a sign saying in part, "This fight is not over. We will continue to stand strong." The bureaucrat decided this was in violation of an Oregon law prohibiting a business from announcing it's intention to discriminate in the future.

So the ACLU is backing these people, right? No, the legal director, a dunce named "Mat dos Santos", wrote a column in the paper explaining that the ACLU is supportive of the ridiculous decision to punish the Sweet Cakes owners. How disappointing.

Thursday, July 2, 2015

SCOTUS Gay Marriage Decision

The Supreme Court Friday issued its long-awaited gay marriage decision. As expected, Justice Kennedy delivered the majority opinion in favor of a right to same-sex marriage for a sharply-divided 5-4 court. The majority opinion is straightforward, and therefore not very interesting. Justice Kennedy, writing for a unified majority (there were no concurring opinions), reasoned that marriage was a fundamental right, and therefore denying that right to a segment of the population was a violation of the Due Process clause of the Fourteenth Amendment. There was also a halfhearted effort to base the decision on Equal Protection grounds, but there was none of the rigorous, step-by-step analysis that is required of Equal Protection decisions.

The dissents were much more interesting. Each of the four dissenters wrote a separate opinion.

Roberts dissent. The main dissent was written by Chief Justice Roberts, who painstakingly took apart the majority's argument point-by-point. The problem with the majority analysis is that it was not based on sound legal reasoning, and therefore, it was easy pickings to be demolished by Roberts' cogent dissent. Certainly the majority opinion contains much good reasoning which would argue in favor of a legislator changing the law in regard to gay marriage, but nothing indicating it was proper for a court to do so.

The Roberts dissent starts out be observing that "for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening". It goes on to say that "The majority's decision is an act of will not legal judgment. The right  it announces has no basis in the constitution or this court's precedent."

Roberts then gets to the details, examining the majority's argument that the court 's prior line of cases on marriage expands the definition of marriage, and this decision is therefore  only a logical continuation of that line.  The line of cases the majority relies on includes a case on granting mixed-race couples the right of marriage, granting prison inmates the right, and granting people who owe child support the right. However, Roberts aptly points out that the basic definition of marriage as between a man and a woman was never in question in any of these cases.

Roberts then examines the legal basis of the majority's position, which is substantive due process. This is clearly a contradiction in terms, and always has been, because"due process" refers to procedure, and not substance. This concept has been severely discredited and has practically died out; yet, the majority resurrects it from the legal cemetery in this opinion.

Substantive due process was first used in the infamous Dred Scott case in 1857. It reached its zenith in the case of Lochner v. New York, which Roberts refers to numerous times in his dissent. Lochner was a 1905 case which dealt with a New York law which limited the number of hours that a baker could work each day to ten, and limited the number of hours that a baker could work each week to 60. The court struck down the law on dubious substantive due process grounds. That decision has come to be regarded by legal scholars as one of the worst decisions in Supreme Court history. The whole substantive due process theory is considered today to be totally discredited, and it is surprising that the court could find no better basis on which to base a decision in 2015 than this discredited 158-year-old joke of a legal concept.

The basic problem with substantive due process is that the court is substituting itself for a legislative body. The court is saying that "we have a better idea of how things should be than the people's elected representatives." This obviously is a huge overreach for the court, and totally improper.

When a court does this type of overreach, it risks the possibility that the executive branch will simply ignore its decision. After all, the supreme court has no ability to enforce its decisions; rather, it must rely on the executive branch to do so. This raises the possibility that the executive branch might do as Andrew Jackson did when the Supreme Court issued a decision in favor of Cherokee rights; Jackson replied, "John Marshall has made his decision, now let him enforce it."  Jackson then proceeded to ignore the Supreme Court decision and to remove the Cherokees from their homeland and relocate them to present-day Oklahoma, over the infamous "Trail of Tears".

Concerning the majority's halfhearted Equal Protection argument, Roberts easily demolishes this position. He says that "the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position....In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States' 'legitimate state interest' in 'preserving the traditional institution of marriage'."

Roberts states that "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". Roberts is actually making a very interesting point here; his point is that it is always better for people to work out their problems themselves, rather than have a "solution" imposed upon them from a higher authority.

Any good teacher understands this, and will seek to enable students to work out answers for themselves. The same goes for any good parent; rather than "hovering" around and solving every problem for their kids, a good parent will allow kids to grow by letting them work out their problems for themselves. A good family law judge will also recognize this, and require the parties to go to mediation to work something out they both can live with, rather than having a judge arbitrarily decide issues of child custody and visitation.

Scalia dissent. Scalia was his usual vitriolic, snide, sarcastic self in his criticism of the majority opinion. He writes right at the start about "this court's threat to American democracy". He says that "it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me."

As to the idea that marriage expands our freedoms, Scalia correctly points out that just the opposite is the case; marriage limits our freedoms, not expands them. Scalia states that "Freedom of Intimacy is abridged rather than expanded by marriage....Anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say."

Thomas dissent. Thomas also makes some cogent points in his dissent. His basic point is that "liberty has been understood as freedom from government action, not entitlement to government benefits." He goes on to discuss what "liberty" means. It basically means the freedom from restraint. The 14th amendment can only be invoked if a citizen is being deprived of "life, liberty or property" without "due process of law".  Thus, it cannot apply to this case.

It is interesting that Justices Roberts and Alito are the only dissenters not to join in on any of  their fellow dissenters' opinions. In the case of Roberts, I think this is due to the fact that Justice Roberts has a sincere and honest desire to protect the legacy and reputation of the court. To join in an opinion which contains the vitriol and sarcasm that characterize the opinions of the three right-wingers is just not something he is inclined to do, even though he agrees with the points being made.

Alito dissent. In the case of Alito, it appears that Alito wants to emphasize an issue mostly ignored by his colleagues. That issue is the threat the decision poses to the religious beliefs of those opposed to same-sex marriage.

A few observations are in order.

Democracy.  First, there is the idea emphasized by Scalia of "the threat to American democracy" which he thinks this decision represents. People like Scalia often talk about democracy when it suits their purposes, and ignore it at other times. The fact is, we do not have a democracy, we have a republic.

And thank God we do. We have seen instances all over the world in which democracy is used by the majority to persecute the minorities. Just look at Egypt, for example. The Western world rejoiced in 2011 when Mubarak was ousted as Egypt's ruler. However, the imprisonment of dissenters since then has gotten worse, and under the first democratically elected president, Morsi, the Christian minority was brutally persecuted. Many other examples from everywhere in the world could be given.
We had an idiot president take us into war in Iraq, on the misguided notion that toppling Saddam Hussein would take care of all of Iraq's problems. All it did was topple one ethnic group and substitute another for it as the ruling power. So, instead of the Sunnis persecuting the Shias, we now have the Shias persecuting the Sunnis. And civil unrest is at unprecedented levels. Such are the (rotten) fruits of democracy.

In India, we have a situation in which 24 of the 29 Indian states have regulations prohibiting either the slaughter or sale of cows. And to take this to an absurd extreme, the Indian state of Maharashtra now has a law making eating beef illegal, with violators subject to up to five years in prison!  All this despite the fact that India has a constitution which says quite clearly that India is (supposedly) a secular state and recognizes freedom of religion. Thank God the U.S. is more serious about following its constitution than India is.

The U.S. was settled by people who had been persecuted in their countries of origin, either because of their religion, their ethnic group, or their unpopular ideas. Consequently, our constitution was written so as to make it clear that we would not have a tyranny of the majority in this country. Governmental power was diffused in many ways, such as the separation of powers, which spreads power around among the three separate branches. Similarly, power between the federal government and the states is divided, so that everywhere one looks there are checks on governmental power over its citizens.

So, for Scalia and the other dissenters to use the word "democracy" as often as they do shows a clear lack of understanding of what our system is all about.

Makeup of the court.  As to whether the court can function properly as a "super-legislature", Scalia surprisingly goes into some detail about the personal characteristics of the Supreme Court's current makeup. They are as unrepresentative of the public at large as can be imagined. All nine graduated from either Harvard or Yale law schools. All but one are from one coast or the other, with only one coming from "the vast expanse in-between". Not a single evangelical Christian; in fact, and most amazingly, not a single Protestant! There are six Catholics and three Jews.

Some may rejoice at the superficial diversity currently existing on the court. Consider that the first Catholic wasn't appointed until 1836, the first Jew not until 1916, the first woman in 1981, and the first Hispanic in 2009. But look at where all this politically correct nonsense has gotten us. We now have Catholics (25% of the nation) and Jews (less than 2%) representing 100% of the court. Just think, important abortion cases are decided by a court that is 2/3 Catholic, a church which condemns abortion and denies communion to politicians who support abortion rights. Protestants like myself, along with other religious groups, represent 73% of the population, yet we have zero representation on the court!

Now, if the court were to fulfill its proper role making legal decisions instead of political ones, then we would not want it to be representative of any group except the group of top-flight legal scholars. But when the court gets into this sort of political quagmire, the elitist nature of the court's makeup becomes relevant.

The court's reputation.  Roberts moans that "The stuff contained in today's opinion has to diminish this court's reputation for clear thinking and sober analysis." It is ironic that two of the dissenters (Scalia and Thomas) were part of the decision which by far did the most to damage the court's reputation. That decision was the atrocious Bush v. Gore decision in 2000.

What makes Bush v. Gore so atrocious is that the constitution gives the state legislatures the right to choose electors any way they want to. It does not even have to by a vote of  the people (in contrast to the election of Senators, which under the 17th amendment must now be chosen by popular vote).  In light of this, for the federal branch of government to interfere in how Florida was choosing its electors is downright shameful. And the hypocrisy of the right-wingers knows no bounds,. These are people who supposedly are so big on states rights and preserving the federalist nature of our system. And yet, this are the same group which interfered in a function which the constitution grants to the state of Florida to determine its electors for president.

After her retirement, Justice Sandra Day O'Connor acknowledged the damage done to the court's reputation, and admitted that taking the case was a mistake. Alan Dershowitz minced no words when he stated: "The decision in the Florida election case may be ranked as the single most corrupt decision in Supreme Court history, because it is the only one that I know of where the majority justices decided as they did because of the personal identity and political affiliation of the litigants. This was cheating, and a violation of the judicial oath."

The constitution doesn't mention same-sex marriage. This is no doubt the lamest argument of all, made by Alito at the start of his opinion, when he says that "The Constitution says nothing about a right to same-sex marriage." There are two basic reasons why this argument is so lame.

First, the constitution doesn't mention a lot of things. There is no mention in the constitution of automobiles, of trains, of planes, of telephones, of the internet, and one could go on and on. Just because the constitution does not mention these things, doesn't mean that the constitution has no application to them.

But the real problem with this type of analysis is that it presumes that the government is all-powerful. That is, it presumes that "We the people" have no rights or freedoms except those specifically granted by the constitution.

This stands the constitution on its head. Our system, unique in the history of the world, makes the people sovereign, not the governmental rulers. The government only has the power which "We the people" have granted to it. Therefore, the correct inquiry is not "Does the constitution grant a right to same-sex marriage, but rather,  "Does the constitution grant the power to the government to deny same-sex couples the right to marry?".

A reading of the Bill of Rights makes it clear it is not intended to be a complete list of rights and freedoms enjoyed by the people. Thus we have the 9th amendment, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people". And the 10th amendment, saying that "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

This analysis points the way to what a proper basis for the court's ruling would have been. Marriage is a fundamental right, as even the dissent acknowledges. Nothing in the constitution gives the government the power to deny that right to a certain class of adult citizens. Yes, the power to regulate marriage is given to the individual states, but the states cannot exercise that power in a way that discriminates against a certain class of citizens. Basic freedoms must be allowed to flourish, even if not specifically mentioned in the Bill of rights.  QED