Thursday, June 28, 2012


With this morning's 5-4 U.S. Supreme Court decision upholding Obamacare's "individual mandate," which will compel people to buy a product under threat of a tax penalty from the federal government, the U.S. Constitution is now essentially dead as a bulwark against incursions on individual liberty.

This is especially true when considered in the wake of the Court's much earlier 5-4 "Kelo" decision, which permits local governments to claim "eminent domain" as an excuse to seize private property from some individuals and transfer it to other private individuals (political cronies).

If the U.S. Constitution can be construed so as to permit government to force you -- under penalty of law -- to buy designated products from crony-capitalist companies, or allow it to simply take your private property and hand it over to politically connected cronies, then the Bill of Rights is a dead letter. Any way you cut it, today's ruling affirms the premise of collectivism over the rights of individuals. In essence, it says that the government, through legislatures, is in principle unconstrained in its power over the individual.

That this latest ruling was made possible only with the complicity of a pragmatic judicial "conservative," Chief Justice John Roberts, only underscores the philosophical chaos reigning in the nation today. It is so symbolic that the Court's left was united in their support of the mandate, but that the conservatives were philosophically fractured: That, in a microcosm, has been the case throughout our modern political history, which is why we see steady, inexorable triumphs by the political left.

I said before this morning's decision that the Court was likely to "split the difference" between conservatives and liberals in their decision. I was too optimistic: This decision was a complete surrender to the united far left of Court. The reason is this: Conservatism has never been a coherent political philosophy, rooted in a defined, consistent set of principles. There are as many varieties of "conservatives" as there are vegetables in a supermarket. Without any definite grounding in specific principles, conservatives in practice typically wind up compromising and "splitting the difference" with the left...which is committed to a specific principle: to the subordination of the individual to the state. Statism is the uncompromising principle of the left; statism is the principle underlying the "individual mandate"; and statism is the principle which Chief Justice Roberts joined the Court's liberals in championing today. (See my award-winning essay "Up from Conservatism.")

The only thing that could have spared America this sorry day would have been a commitment by a Court majority to the premise of individual rights: to the view that individuals are ends in themselves -- not mere means to the ends of some tribal collective, ends imposed by the brute power of the state. That was the Enlightenment view held by our nation's Founders, and by the Framers of the Constitution, who intended that document to be a barrier to the unlimited exercise of power by the state over individuals. Well, that view, and that document, have been obliterated today.

Do we still have liberties that we can exercise? Yes, in many respects, but only by sufferance of our rulers and by the accidents of the political process -- and no longer by legal right. The only thing that we can do now is to fight endless political and legislative battles for supremacy over the statists, but unsupported by the legal framework and precedents bequeathed to us by our forefathers.

We can begin those battles in earnest this November.

UPDATE. After having a day to peruse many commentaries about the decision, I wanted to add this about the legal travesty that just occurred.

During the legislative debate, Obama and the Dems explicitly denied that the individual mandate penalty in Obamacare was a "tax." They always referred to it as a "penalty" and a "fine." They knew that, politically, passing a giant "tax" on the middle class would be suicidal. And in fact, they never used that term anywhere in the bill.

Moreover, on the first day of oral arguments before the Supreme Court, the government lawyer, the Solicitor General, also denied that it was "a tax" under the Commerce Clause. Why? Because on legal grounds, if it was a tax under the Commerce Clause, it would run afoul of another federal law: the Anti-Injunction Act. That Act would render such a tax illegal, and therefore, Obamacare would have to be rejected as unconstitutional.

But...on the second day of the hearing, the government was also permitted to argue that it was "a tax" -- under the "taxing power" clause of the Constitution. In other words, the government was allowed to argue, simultaneously, that the "fine" was not a tax, but also that it was a tax!

In his Supreme Court opinion, Chief Justice Roberts discarded all those facts. Even though the Congress that passed Obamacare had explicitly, repeatedly denied that the fine was "a tax," and Obama (who signed it) explicitly, repeatedly denied it was a tax, Roberts arbitrarily seized upon the cynical last-minute argument from a government lawyer that it was a "tax" in order to rule that Obamacare's individual mandate was permitted under the Constitution.

Here is what Roberts actually wrote: "Under [my] theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income."


That the federal government could tax inactivity?

This is the same John Roberts who -- earlier in his same opinion -- wrote: "The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress's actions have reflected this understanding."

So, like the government attorneys, Roberts also was arguing out of both sides of his pen. He argues that government has no power to "compel " commerce with a "fine"; yet a few pages later, he says the government has the power to do exactly that: force people to engage in "commerce" (buy insurance) or else be hit with a whopping fine (which he arbitrarily calls a "tax").

This was a breathtaking, completely unjustified, fraudulent stretch of law and logic that nobody anticipated. And Roberts's "reasoning" incensed the four dissenting Justices, as a potent Wall Street Journal editorial points out:

In their brutal (and, in a rarity, jointly signed) dissent, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito write that the Chief Justice's logic "is not to interpret the statute but to rewrite it.... One would expect this Court to demand more than fly-by-night briefing and argument before deciding a difficult constitutional question of first impression." They score the Chief Justice for carrying 'verbal wizardry too far, deep into the forbidden land of the sophists."

In other words, as Rush Limbaugh put it, "the whole thing is a fraud." Trickery was used at every turn to push Obamacare through Congress; fraud was now used to uphold it in the Supreme Court.

And no less a figure than the Chief Justice of the U.S. Supreme Court has made the fraud possible.

The U.S. Constitution has been left in tatters. In Limbaugh's term, no longer is there a legal "backstop" to protect individual rights. If courts can simply invent, out of cloth, language and arguments that don't even appear in the laws they are adjudicating, and if those laws can swipe and transfer property, or compel you to buy government-mandated products, with no legal recourse or Bill of Rights protections, then the Constitution is -- just as I said -- truly a dead letter as a limitation on governmental power over the individual.

UPDATE #2: Chief Justice Roberts actually was AGAINST the individual mandate before he was FOR it, according to reporting by CBS. Along the way, he changed his mind, sources tell CBS, because he was worried about "public opinion" -- meaning: what politicians and the media would think of him and the Court. Read this and weep. Specifically, this is truly sickening:

"Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it.

"Some of the conservatives, such as Justice Clarence Thomas, deliberately avoid news articles on the Court when issues are pending (and avoid some publications altogether, such as The New York Times). They’ve explained that they don’t want to be influenced by outside opinion or feel pressure from outlets that are perceived as liberal.

"But Roberts pays attention to media coverage. As Chief Justice, he is keenly aware of his leadership role on the Court, and he also is sensitive to how the Court is perceived by the public.

"There were countless news articles in May warning of damage to the Court – and to Roberts’ reputation – if the Court were to strike down the mandate. Leading politicians, including the President himself, had expressed confidence the mandate would be upheld.

"Some even suggested that if Roberts struck down the mandate, it would prove he had been deceitful during his confirmation hearings, when he explained a philosophy of judicial restraint.

"It was around this time that it also became clear to the conservative justices that Roberts was, as one put it, “wobbly,” the sources said.

"It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation....

"Roberts then engaged in his own lobbying effort – trying to persuade at least Justice Kennedy to join his decision so the Court would appear more united in the case. There was a fair amount of give-and-take with Kennedy and other justices, the sources said. One justice, a source said, described it as 'arm-twisting'....

"The fact that the joint dissent [by the conservative Justices] doesn’t mention Roberts’ majority [opinion] was not a sign of sloppiness, the sources said, but instead was a signal the conservatives no longer wished to engage in debate with him."

Folks, what Roberts did is the complete antithesis of the rule of law -- the premise that we should be a nation "of laws, not of men." The "absolute" governing his ruling was not his oath of office "to preserve, protect, and defend the Constitution of the United States," but public opinion.

But if public opinion is to govern the nation without limit, then why bother having a Constitution or a Supreme Court at all? In pandering to public opinion, Roberts achieved precisely the opposite of his apparent goal: He has delegitimized the reputation of the Supreme Court.