Monday, June 24, 2013

Obamacare is an Unconstitutional Bill of Attainder Law

I wrote the following in July 2012 as a comment to three different blog articles at the Heritage Foundation website.  Though Heritage did not post my comment in July 2012, I still believe my comment tells the truth about Obamacare and the U.S. Constitution.  My conclusion is simply this: Obamacare is unconstitutional.

Steven A. Sylwester
June 24, 2013

Chief Justice Roberts needs to review the entire U.S. Constitution with the same regularity that a skilled musician must practice scales and fingering techniques, that is: daily.  "First Principles" are songs sung to beautiful music, songs which must be sung to be fully appreciated — alone in the shower, but also together with others in chorus with full orchestra accompaniment.  For example, one cannot really appreciate the majesty and spine-tingling splendor of Handel's magnificent Hallelujah Chorus unless one experiences the entire Messiah and thereby knows the soaring sweep that builds the musical crescendo of the Hallelujah Chorus within its full context.  So too with the elements of the U.S. Constitution, for too much important context and clarity of understanding is lost whenever one clause or another is removed for sterile examination; music must be sung to find its glory, and a lyric must be uninterrupted to find its expression.

Even so, experiencing the entire Messiah from start to finish is transcendent and sublime, and to sing it is even more so; one is transformed.  So too with the U.S. Constitution, for the transformation that turns a mere citizen into a patriotic American is made when the heartbeats of the Founders are felt in one’s own chest, when one knows with certainty a personal resolve to be among the “we” who “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

What is sad is that Chief Justice Roberts does not hear or feel the music of the U.S. Constitution in his soul any longer because he has disembodied its clauses from its poetry and prose and has then
over-intellectualized those naked particulars in his mind; he does not sing its patriotic song or dance to its pulsating rhythm because he has dissected it in his thoughts into a scattering of lost notes and
forgotten phrases that are now disjointed and disparate from the whole that once was.  Even in Jazz — that great American invention of musical improvisation — the melody is never lost by the genius
interpreter; the essential truth — the story — remains ever present. In his ruling regarding Obamacare, Chief Justice Roberts lost the story found in the First Principles that form the essence of the U.S. Constitution.  It is no small thing.  In fact, the consequences could be terrible.

In my search through the wreckage, I found the following unexpected hope: Obamacare is a Bill of Attainder Law, and is therefore unconstitutional.

On July 18, 2012, I submitted the following as a comment to
and to
Neither comment has posted at the Heritage website as of July 19, 2012.

Steven A. Sylwester

* * *

The shocking truth is this: John Glover Roberts, Jr., who is the 17th Chief Justice of the United States, does not know The Constitution of The United States.

First, consider the Oath of Office:
"I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and
perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States; and that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.  So help me God."

Now consider Article. I. Section. 7. First Sentence, which states: "All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills."  Nowhere does the Constitution allow the Supreme Court to be a participant in the legislative process that raises "Revenue" for governmental purposes.  Consequently, if the language of a law does not explicitly describe something as a tax, then it cannot be rightly concluded under any circumstance that the legislators of the law intended a tax.  It is not for the Supreme Court to ever divine or in any way construe intent that is not explicitly stated. Rather, it is the Supreme Court's business to only rule on the constitutionality of something as it is, not as it should be, for to ever cross over into "should be" is to become an actual participant in the legislative process.

However, Chief Justice Roberts could have stated in his ruling: "As is, Obamacare must be ruled unconstitutional.  But a reworking of Obamacare's language that would result in explicit use of the word "tax" to describe certain revenue gathering processes might result in a different ruling."  It is fair for a justice to provide unsolicited advice in a ruling, but it is unfair — that is: unconstitutional — for a justice to ever actually implement his/her unsolicited advice in the effective creation of new law, for justices have not been given the constitutional right to be legislators.

Consider Article. I. Section. 8. First Sentence, which begins: "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; ..."  Be most certainly assured: "The Congress" does NOT include the Supreme Court.

But all the above is trumped by a glaring oversight that should overrule Chief Justice Roberts' mistaken belief that the "Power To lay and collect Taxes" makes Obamacare constitutional.  The "glaring oversight" is found in Article. I. Section. 9. Paragraph 3, which states: "No Bill of Attainder or ex post facto Law shall be passed."

A "Bill of Attainder" is defined as: "A legislative act that singles out an individual or group for punishment without a trial."

"The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature."  U.S. v. Brown, 381 U.S. 437, 440 (1965).

"These clauses of the Constitution are not of the broad, general nature of the Due Process Clause, but refer to rather precise legal terms which had a meaning under English law at the time the Constitution was adopted.  A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.  Such actions were regarded as odious by the framers of the Constitution because it was the traditional role of a court, judging an individual case, to impose punishment." 
William H. Rehnquist, The Supreme Court, page 166.

* * *
A punishment tax is a Bill of Attainder, something specifically forbidden by the U.S. Constitution.  Understand this: someone who must pay the punishment tax approved by Chief Justice Roberts receives no benefit whatsoever for having paid the tax, because that tax is not the equivalent of an insurance premium — meaning: the person taxed is not eligible to receive Obamacare benefits until AFTER he/she begins paying insurance premiums.  The tax is a "punishment without a trial"— a "Bill of Attainder."

Chief Justice Roberts needs to spend some quality time pondering his oath of office.

Steven A. Sylwester

* * *

When I submitted the above as a comment to the second article linked above, I added:

Still, the U.S. health care problem urgently needs a solution.  My proposed solution is:

Steven A. Sylwester

* * *


If my assertion is correct, the recent ruling by the U.S. Supreme Court regarding Obamacare will go down in history as one of the biggest bonehead blunders ever.  Certainly, the Constitutional Law professors at Harvard Law School would be embarrassed to tears, for that fine school taught and graduated President Barack Obama (Harvard Law J.D. magna cum laude 1991); Chief Justice John G. Roberts, Jr. (Harvard Law J.D. magna cum laude 1979); Associate Justice Antonin Scalia (Harvard Law LL.B. magna cum laude 1960); Associate Justice Anthony M. Kennedy (Harvard Law LL.B. cum laude 1961); Associate Justice Stephen G. Breyer (Harvard Law LL.B. magna cum laude 1964); and Associate Justice Elena Kagan (Harvard Law J.D. magna cum laude 1986).

At the above link defining a "Bill of Attainder" as "a legislative act that singles out an individual or group for punishment without a trial," the following quote can be found: "Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils.  They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." 
James Madison, Federalist Number 44, 1788.

Sounds ugly.  Also, sounds exactly like the punishment "tax" (ruled by Chief Justice Roberts) or "penalty" (claimed by President Obama) that makes Obamacare possible.  Understand this: whether you call it a tax or a penalty makes no difference, because the “punishment without a trial” aspect is what defines a bill of attainder law.  It is inevitable: someone will file a lawsuit claiming Obamacare is unconstitutional because it is a bill of attainder law that is strictly forbidden by the U.S. Constitution — and that someone will win!  Then what will happen?  Who will eat crow?  Who will fall on a sword?  What a pickle!

If I am correct in my assertion, the United States government is in a mess.  Plainly, the U.S. Supreme Court would have to admit to incompetence.  What then?  How would we go forward from there?

I would start with:

Next, I would ratify "Proposal #8: Definitions of Law, Religion, and Judicial Limits" found at:

God help us.

Steven A. Sylwester