In the first 48 hours after the surprising Supreme Court decision in the Obamacare case, after recovering from the initial shock, I was prepared to give Chief Justice John Roberts a break, the benefit of doubt about his intentions and rationale.  I drank some of the cool aid from the conservative bloggers about the genius, the liberal baiting on the Commerce Clause, how he was “playing chess while everyone else was playing checkers”,  and the underlying conservative instincts involved in the strategy and reasoning of the Chief Justice.   But I have since read every analysis I could get my hands on and I have changed my view:  While not entirely without merit in some of its by-products, this was a deeply flawed and disturbing decision, and not mainly because of the final outcome, but because of the manner in which it was reached.

I won’t get into the arcane nature of the tax vs. penalty issues in the insurance mandate; the dissent signed by Kennedy, Scalia, Thomas, and Alito and a brilliant analysis by the Wall Street Journal have performed a complete hatchet job on any credibility in this gambit.  The big problem with this sleight of hand is that it results in a complete rewrite of the law, for the Roberts version with its massive tax on the middle class would have had no possibility of passing even the Democrat-controlled Congress that adopted it.  So much for a non-activist judiciary!

But the disturbing part of all of this is the calculation, the cleverness itself, more lawyer trickiness than sound judgment, which smacks of political opportunism from a man who was supposedly the paragon of judicial rectitude, prudence, and Federalist Society fidelity to the Founders’ legacy, for clearly, Roberts had to reimagine this monstrosity to find it constitutional.  Why did he do this?

Several people have identified what I believe to be the main reason, probably best described by Michael Gerson in The Washington Post.  Gerson writes that there are two types of judicial conservatism—institutionalism and constitutionalism—that can lead to very different outcomes, and he believes that Roberts is emerging as the great institutionalist, primarily concerned about the reputation of the Supreme Court and its place in American life.  In this view, the Court should take great pains to defer to the legislative branch, lest it violate a duty to continuity and avoidance of partisanship, as with Bush vs Gore and Citizens United cases, for example.

The leading constitutionalists, of course, are Scalia, Thomas, and Alito, who are totally focused on rigorous application of the words in the document, whatever the political consequences or partisan appearances.  Gerson himself is a self-described institutionalist, but he believes Roberts blew it in this decision because of lack of fidelity to any credible application of the law in this case.  To me, this is the most disturbing aspect of this decision.

But there is more to this, and it involves a phenomenon that has been persistent at least since the New Deal, and that is the vulnerability of conservatives to intimidation from the left, of which there was an avalanche from all directions leading up to this decision, and I believe that the Chief Justice, in his role as protector of the institution of the Court, at least partially bent to this intimidation.

Why is it that conservatism is the wing of our political spectrum that is consistently vulnerable to this intimidation of the left wing?  Why is it that the left’s “good intentions” are almost never questioned in terms of clearly documented bad consequences from the resulting policy?  Why is it that conservatives consistently feel the need to accommodate the left, to be the conciliators, to be those most concerned with the civility of the body politic and, in the particular context of the Obamacare case, intimidated by the threat that the integrity of the Supreme Court would be damaged by a close decision against the President’s signature initiative by a conservative majority of the Court?

Is there any instance in recent memory in which the reverse was true, in which the left was in any way hesitant or subject to intimidation not to overturn a precedent or a democratically established policy, however adverse to constitutional scrutiny?  I certainly can’t think of one.  The reasons are many, but chief among them are because, in spite of the fact that this remains a center-right country, the left occupies the high ground in almost all elements of the popular culture, the news media, most of our non-profit institutions,  and the upper reaches of higher education, to the extent that conservatives are considered duty-bound to answer for any objections to the “progressive” agenda in all of its manifestations, while the left is almost never held to any such corresponding duty by our mainstream institutions.  And this situation won’t change until we change these civic and cultural institutions.

These are questions and considerations to ponder as we deliberate how we will respond to this decision in this election year; meanwhile, painfully, but no doubt appropriately, John Roberts has left us with our last resort—the ballot.

Those who would change a culture corrupt its language, particularly by hiding the reality of an evil they desire behind a less revealing name. – Politics and the English Language, George Orwell.

I thought about Orwell’s quote when I recently caught an exchange between two friends and fellow CNN contributors on the terms we use in discussing illegal immigration.  One of them, Charles Garcia, had written that the phrase “illegal immigrant” is “biased” and “racially offensive”, also implying that it is a “slur” and invoking Orwell with the term a “worn-out and useless phrase”.  His friend, Ruben Navarette, responded that the term is none of these; rather, the term is an accurate representation of reality, however difficult it is for some people to accept.

Further, Navarette rightly adds that those who have trouble with the term are really bothered by something deeper–the fact that, in the final analysis, by supporting a pathway to earned legal status, they are defending a group of people who engaged in unlawful activity.

So where does this position our chief law enforcement officer?  Very simply, the President compounds the original lawlessness by concocting schemes that involve selectivity of enforcement and instructing the Department of Homeland Security to no longer enforce immigration laws against illegal immigrants who meet certain criteria, mainly those between the ages of 16-30 who meet other criteria, referring to them as “Americans for all intents and purposes”.  Really?

And if you read the Supreme Court decision in Arizona vs. United States, this was exactly the point in the 8-0 decision by the Court to allow Arizona police to verify the legal status of people who come into contact with law enforcement, which the Obama administration had argued was in conflict with “its enforcement priorities” in spite of its compliance with federal law.  Amazingly, the administration’s response to this decision was even more lawlessness, when it announced that it would suspend cooperation with Arizona on immigration enforcement.

Arizona should be prepared for an onslaught from swarms of attorneys watching every move of law enforcement officials for the slightest bobble in the way in which there newly confirmed authority is implemented.

Meanwhile, Mitt Romney responded to all of this very tepidly, simply saying that Obama is advancing temporary stopgap measures in lieu of leadership on a long-term solution.  True, but he should be much bolder, and here again we see the intimidation of the left, which knows that conservatives will pander and moderate on this issue because of fear of perceived political damage in the Hispanic community.  This is a misguided path that accepts the view of the left that the Hispanic community is a monolithic special interest group rather than fellow citizens who should be dealt with as such with bold provisions for a long-term solution, while scoring Obama for undermining the rule of law.

A very intriguing story is unfolding this week with the announcement of the probable discovery of the Higgs boson by the scientists managing the European Organization for Nuclear Research (CERN), made possible by its Large Hadron Collider on the French-Swiss border.  I’m way over my head here in the physics, but I have read enough to know that this is a very big deal, probably one of the great moments in scientific history, because it will provide new insights into what the universe was like in the trillionth of a second after the Big Bang.  For the long sought-after Higgs bosons are the particles responsible for the conversion of the energy of the Big Bang into the mass of the universe.  With this discovery,  a new chapter in physics opens, leading to who knows what next.

I was not very well exposed to sub-atomic physics in school, but I have encountered it since, most prominently in philosophy, where the concept of “theoretical constructs” was first introduced to me by Mortimer Adler in his exploration of what we can know beyond that which is perceptible to the senses.  In explaining the notion of theoretical constructs in his terrific book, Ten Philosophical Mistakes, he notes that “many of the conceptual constructs that we employ in scientific and philosophical thought concern objects such as black holes and quarks in physics, and God, spirits, and souls in metaphysics.  These are objects about which it is of fundamental importance to ask about their existence in reality……………….The real existence of instances of such objects can be posited only on the grounds that, if they did not exist, then observed phenomena could not be adequately explained………………The idea of God, for example, and the idea of the cosmos as a whole are not concepts derived from sense experience.  They are instead theoretical constructs…………{which} apply to some of the most important ideas in 20th century theoretical physics”.

Adler would probably agree that it is premature to think that the discovery of the Higgs boson will lead to our theoretical constructs becoming empirical, but this major breakthrough seems almost certainly to have moved us to the next threshold.  And I’m convinced that whatever we find there will be orderly for, as Albert Einstein said, “God does not play dice”.

The Spanish Civil War of 1936-39 has always been somewhat a mystery to me, very often misunderstood,  more often mischaracterized, and the players and factions were very confusing.  It was, of course, a precursor to the main event, World War II, with Germany and the Soviet Union using it as a proxy for their respective interests, but beyond that I didn’t understand it very well until I recently read The Last Crusade – Spain: 1936, by Warren Carroll.  This is an admittedly Nationalist partisan treatment, but it lays out the background, the detailed history of the conflict, the factions, and the issues very well.

The book also gave me the insight to understand a couple of essays on recent and current conflicts in the Middle East, comparing the contemporary conflicts with the Spanish Civil War.  Stephen Schwartz writes in 2006 of the Iraq war being a harbinger of bigger things to come and takes the analogy further by suggesting that there is another lesson, because the Spanish Civil War was the first major example of the modern proxy wars, in which local conflicts are exploited in the pursuit of global or regional interests.  In this context, it anticipated the Communist-incited civil wars of the last half of the 20th century.

Pat Buchanan follows in June 2012 with an essay analogizing the Spanish Civil War with the current conflict in Syria and commends both FDR and the current U. S. administration, respectively,  for maintaining neutrality, but worries that the Syrian conflict could yet become what he calls a “dress rehearsal for a Mideast War” .  He likens the configuration of the various factions, religions, allies, and strategic interests in the Middle East that are manifest in Syria today with similar characteristics in Spain in the late 1930s.

These comparisons with history could be appropriate, and time will tell.  But what bothers me is the response to the current situation, and Schwartz and Buchanan have very different ideas about what that should be.  Buchanan is well known for his isolationism, and I can’t agree with that for a variety of reasons, not least of which is that, as the leader of the free world, we have a responsibility to confront tyranny and support freedom, particularly when it is in our interest to do so.  As George W. Bush recently said, “We do not get to choose if a freedom revolution should begin or end in the Middle East or elsewhere; we only get to choose what side we are on”.

We have possibly already undermined the long-term success of democracy in Iraq with our premature withdrawal and I worry that we are squandering an opportunity to make a significant difference in the outcome in Syria by relying on the feckless United Nations and not more directly confronting Iran and Russia on their support for the murderous incumbent regime.  Stephen Schwartz ends his essay by suggesting that “by winning the battle of Iraq, and by fostering real change in Saudi Arabia, Syria, and Iran, the democratic nations may save the world from a later, longer, bloodier, and more terrible war”.  This is the analogy with the Spanish Civil War that we want to avoid.