The response Justice Kennedy gave to Solicitor General Donald B. Verrilli, Jr. in the healthcare case caught my attention: 1 GENERAL VERRILLI: I agree, except, 2 Mr. Chief Justice, that what the Court has said as I 3 read the Court's cases is that the way in which you 4 ensure that the Federal Government stays in its sphere 5 and the sphere reserved for the States is protected is 6 by policing the boundary: Is the national government 7 regulating economic activity with a substantial effect 8 on interstate commerce? 9 JUSTICE KENNEDY: But the reason, the reason 10 this is concerning, is because it requires the 11 individual to do an affirmative act. In the law of 12 torts our tradition, our law, has been that you don't 13 have the duty to rescue someone if that person is in 14 danger. The blind man is walking in front of a car and 15 you do not have a duty to stop him absent some relation 16 between you. And there is some severe moral criticisms 17 of that rule, but that's generally the rule. 18 And here the government is saying that the 19 Federal Government has a duty to tell the individual 20 citizen that it must act, and that is different from 21 what we have in previous cases and that changes the 22 relationship of the Federal Government to the individual 23 in the very fundamental way. http://www.politico.com/news/stories/0312/74537.html To me, Justice Kennedy went right to the heart of the matter: The criticisms in question have no moral foundation. They are political, and they originate with the very people trying to legislate love for financial gain. Even if you concede that the criticisms are moral you cannot avoid the question Why your morality and not mine? The answer to the question is found in the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . . Every law that incorporates the morality of one individual over another is a violation of the First Amendment. Never forget that there is no law preventing anyone from stopping a blind man from getting hit by a car. For all practical purposes the Affordable Care Act is the only law that says you must intervene. For all of the things Socialists did to this country in the last century they realize they did not go far enough. The missing component was the governments authority to order Americans to purchase goods and services. It is that revelation, codified in HillaryCare II, that put Socialist morality on a collision course with the American people. Throughout socialisms long, sorry, life in America the Socialist priesthood failed to turn socialism and capitalism into one governing entity. Nevertheless, socialism in America will not be destroyed in one fell swoop. The best thing that can happen to this country right now is to see that HillaryCare II fails right along with the rest of socialisms failures. I would also point out that my morality has served the country well for more than two centuries, while legislating love is tearing the country apart. Bottom line: Should Supreme Court justices let the Affordable Care Act stand they will be making a moral judgement. Should the Court overturn the healthcare law it will reject the Socialist position expressed by Stanford University Law School professor David Freeman Engstrom: http://www.adn.com/2010/04/20/1241989/alaska-to-join-states-health-bill.html Inactivity Regulating inactivity is at the core of socialisms governing philosophy; i.e., tell people what they must do rather than what they must not do. Socialism can only survive by prohibiting inactivity. Obviously, forcing activity is the only way to prohibit inactivity. Some might go so far as to call it slave labor. Good Samaritan laws Communists are all afflicted with a Messianic complex. They all have a perverted Good Samaritan complex as well if there is such a thing. I say perverted because the Good Samaritan in the Bible took care of the stranger that came into his life; Communist Good Samaritans wear the title while everyone else does the work. Good Samaritan laws also hand the government the authority to tell Americans what they must do even though such laws have nothing to do with Professor Engstroms economic inactivity. Good Samaritan laws are few and far between, but they do highlight the philosophical foundation the government is building upon with HillaryCare II. The worst part of Good Samaritan laws is that they are an extension of coerced charity. When the government can punish you for not supporting strangers it is only a baby step shy of forcing you to support the welfare state with your hard earned money. After all is said and done the healthcare reform bill is a Good Samaritan law that will enrich a very few with the forced labors of the many. Finally, an amendment to the Constitution prohibiting the government from forcing Americans to buy anything should be considered no matter what the Court and Congress do with the healthcare act. A clearly written, comprehensive, amendment will block the next attempt Socialists are sure to try. Ill wager that they are already working on their next move without making the mistakes they made with HillaryCare II.
I don't understand Kennedy's comparison here to tort law. I'm not really sure what duty of care and negligence have to do with federal authority to regulate the health care system. Additionally, just because the federal government doesn't have a duty to do something, doesn't mean that they do not have the authority. If a person has a duty of care to another then they will be subject to civil liability if they breach that duty. But that isn't to say that they can't still treat the person as if the duty existed, even when it does not. They just won't be liable if they breach it. I would suggest that you look up Good Samaritan Laws. They do not force people to assist others that they would not have a duty to otherwise. They actually protect the rescuers. For instance, in a state with a Good Samaritan Law, if a person were to push a blind man out of the way of the passing car, but instead of rescuing him pushes him in front of a bus that causes more injuries than the car would have, the rescuer would not be subject to civil liability for pushing the blind person in front of a bus. The point of the law is actually to encourage people to help others, not by imposing a duty to random strangers, but by reducing the liability of the rescuer if something is to go wrong with the rescue.
To Smash 23: Nice try. Civil liability only applies when the care giver is paid for services rendered. In other words a breach of contract. No civil liability attaches to voluntary care or action WHEN IT IS WITHHELD nor should there be. Incidentally, Socialists/Communists and their parasite supporters have neither the ability nor the inclination to hire and pay someone for their labors; so they use the government to force everybody to work for them and their sick morality. Thats basically why they oppose capitalism. Its not about the evil rich, its always been about parasites telling everybody what to do without paying them. To Smash 23: Your example is ludicrous. I would suggest you study the punishment aspect of Good Samaritan laws. Socialists always wanted to punish inactivity with lawsuits. As in all things Socialists move forward incrementally. The healthcare law moves into criminal law; i.e., the government punishes you for not buying insurance. Strip away all of doublespeak and you are left with this fact: Every law that punishes inactivity is criminal law. Worse still, there is no day in court for those who are convicted for NOT buying insurance. Ultimately, Good Samaritan laws without criminal or civil penalties have no teeth. Put it this way. Theres never been a religious freak who didnt dream about punishing everybody that refused to do as they are told. The Socialist priesthood is very close to making that dream a reality. Finally, those who think Good Samaritan laws are necessary should go to church to get their sermons. In fact, they can VOLUNTARILY submit to any punishment their spiritual leader metes out. Do not force me to come along.
You clearly do not understand tort law or negligence. Civil liability applies when a person breaches a duty of care that they owe to another (this duty does not have to be created via services rendered and paid for). There are myriad ways that a duty exists or is created. For instance, a familial relationship often creates a duty of care. As an example, Dave has fallen into a lake and is drowning. Alissa stands at the shoreline watching. Alissa has a duty of reasonable care to rescue Dave in the following circumstances: 1. She is Dave's Mother. 2. She pushed Dave into the lake. 3. She and Dave are strangers, she attempts to rescue him, but then unreasonably gives up half way through. A duty can be created via a business transaction (i.e., a landowner has a duty of reasonable care to a business invitee), but there are plenty of other ways that a duty can be created. See also, for example, the attractive nuisance doctrine. Only two states (Minnesota and Vermont) have duty-to-assist subdivisions in their Good Samaritan Laws that impose criminal liability (while at the same time limiting civil liability). And even those subdivisions are pretty specific about when the duty-to-assist applies. The rest of the 48 states do not have duty-to-assist provisions in their Good Samaritan Laws. I don't think it's a good idea to try and incentivize people to help each other by imposing criminal or civil liability if they don't do anything. I think the majority of states have it right, incentivize rescuers by protecting them from negligence suits. As an example, Texas has a Good Samaritan Law. Section 74.151(a) (emphasis added): (a) A person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent, including a person who: (1) administers emergency care using an automated external defibrillator; or (2) administers emergency care as a volunteer who is a first responder as the term is defined under Section 421.095, Government Code. http://codes.lp.findlaw.com/txstatutes/CP/4/74/D/74.151
To Smash 23: Nothing in your argument proves that an individual must act. Your entire argument is an attempt to legitimize socialisms governing philosophy; i.e., you must rather than you must not. Dismiss all of my arguments and I still have Eric Hoffer. See the quotation following my signature. Dismiss all of your arguments and you have nothing to support the government telling Americans what they must do?
Seriously? A Good Samaritan Law limits civil liability for those who undertake a rescue, but have no duty to do so. Without such a law, a rescuer could be sued, and held civilly liable, under a claim of negligence. Negligence is a tort. Duty to rescue has been around for a long time, I'm not sure why you have such a problem with it. You don't think parents should have a duty to rescue their minor children? Or that landowners should have a duty to those they invite onto their property? The government set those rules, but as the populace elects the government, it does so on behalf of its constituents. I didn't say that she had to put her life in danger. I said that she has a duty to reasonably attempt a rescue. I would contend that risking one's life is not reasonable. Any individual can be covered under a Good Samaritan Law (whether they are business owners or landowners, makes little difference, as long as they have attempted to rescue someone, whom they do not have a duty to). Again, GSLs are generally laws of protection, NOT accountability. Causing injuries intentionally is covered by both criminal and civil laws. The purpose of criminal laws is to punish the defendant. The purpose of civil laws is to make the plaintiff whole, reimburse them for harms suffered, generally with compensation. GSLs have to do with rescuing someone, not with murder or intentionally harming someone, so they wouldn't apply in those situations. Additionally, it's very possible to sue someone civilly for wrongful death (aka murder) or other intentional injuries (like battery, intentional infliction of emotional distress, etc.). For example, OJ Simpson was found not guilty in criminal court, but was found civilly liable for the death of Nicole Simpson (civil courts have a lower burden of proof than criminal courts do).
To Smash23: You insist on blending voluntary and involuntary. Good Samaritan laws order involuntary behavior pure and simple. Every other definition amounts to linguistic calisthenics. To Smash23: The concept has been around for a long time, however: Ratio Juris http://ratiojuris.blogspot.com/2007/01/duty-to-rescue.html And this: Misfeasance and Nonfeasance: Yania v. Bigan http://jurisblawg.wordpress.com/2006/06/09/misfeasance-and-nonfeasance-yania-v-bigan/ To Smash23: So long as the choice remains mine I do not have a problem with helping people as you imply. I have a problem with the government telling people what to do. Few people realize it, but the welfare state is a variation of the duty to rescue. The garbage in the UNs 1948 Universal Declaration of Human Rights is more of the same. In the same vain Hussein sells the idea of positive Rights as opposed to negative Rights in our Bill of Rights. His positive Rights are nothing more than using tax dollars to rescue everyone, while not one negative Right in the Bill of Rights forces others to pay. Basically, Socialists/Communists are using duty to rescue as an engine to change the meaning of law itself in order to impose their morality on society. You can see more proof of the Socialist/Communist agenda in so-called hate crimes laws. Note that there is no better way to acquire the power of life and death over everyone than disguising a duty to rescue. Socialists have been succeeding because most people are afraid they will look cruel and uncaring if they resist helping others for the common good. Also note that individual liberties are slowly being smothered to death by the duty to rescue. To Smash23: Decent parents do not need laws forcing them to rescue their children from harm. I certainly do not want the other side of your coin; i.e., the government forcing minor children to take chemotherapy over the objections of their parents. Judge Rules Teen Must Get Cancer Treatments Published May 15, 2009 http://www.foxnews.com/story/0,2933,520318,00.html To Smash23: Since youre going in circles, I repeat: Good Samaritan laws order involuntary behavior pure and simple. Every other definition amounts to linguistic calisthenics. To Smash23: My point is that Socialists/Communists see inactivity as a failure to intervene whether it be preventing murder or saving a drowning man. Philosophically, and legally, dirty little moralists see no difference. Finally, let me rephrase Eric Hoffer: Totalitarian governments must force everyone to do as they are told. Good Samaritan laws do just that.
And you insist on failing to understand that the vast majority of GSLs do not force you to do anything. They merely protect you against civil liability if you choose to do something. MANY EXCEPTIONS. Just like in the example I gave earlier between Dave and Alissa. Exceptions include: if there is a special relationship between the rescuer and rescuee (like mother and child, as an example) or if the rescuer created the situation from which the rescuee needs rescuing, etc. But as I already said, most GSLs do not force people to do anything. Seriously, are you being intentionally obtuse about this, or can you simply not read? And who says all parents are decent? Parents have a duty to their children because they voluntarily chose to have them. Plain and simple. No they do not. Read the one from Texas I posted, and show me the language that forces "involuntary behavior." No they do not. I'm not sure how else to put it, but you're obviously dead set on believing something that is not true, so I doubt any amount of evidence or logic will convince you otherwise.
To Smash23: Snap! The trap just closed. Is it your contention that Good Samaritan laws will force all parents to be decent? The question is rhetorical because I already know your answer. One last time: Good Samaritan laws order involuntary behavior pure and simple. Every other definition amounts to linguistic calisthenics. [ame="http://www.youtube.com/watch?v=gBzJGckMYO4"]Porky Pig Cartoon Ending "That's All Folks!" - YouTube[/ame]
