I don’t know if “Is this really happening?” is the appropriate question to ask after this week’s Supreme Court ruling over ObamaCare. I mean, who do you expect the government’s own lawyers (that is, justices) to side with? The unwashed rubes? The Supreme Court is just another subdivision of the Washington industrial-apparatus. Expecting the government to police its own self is like asking a liquor fiend to cut down on the Captain Morgan without anybody there to cut him off. There’s nobody there to say, “Hey, buddy, overkill. Don’t get carried away there. Not to be a party pooper, but you’ve gone off the deep end. Time to rain on this parade.” And if a husband and wife are screaming at each other’s throats, getting his best friend to settle the dispute is just asking for trouble. Who sides against their own homeboy?
Likewise, the Washington Supremes are appointed by the government, receive their paychecks from the government, and work for the government. Once and awhile, their conscience gets the best of them, but when the pigeons hit the blade, don’t be surprised if they got their whip-holding master’s back. (Don’t ask me what that means. I don’t even know what I just said.) So, there you have it, folks. ObamaCare’s constitutional. Proponents of government so small you could drown it in a bathtub – and freedom-loving capitalist piglets everywhere – are blowing “Taps” in their trumpets as we speak. And Koch Industries is selling tissues at unspeakably low prices. What do you say, Dick Armey? No shame, buddy. It’s not a feather in my eye, either. ObamaCare’s adversaries are flabbergasted that Roberts, a Bush appointee, sided with the Progressive majority in upholding this freakish monstrosity from Hell. (As evil as we heartless capitalists are, we don’t do deals with Satan. Although I have his number in my back pocket just in case I need to – never mind. Nothing to see here, people. It will be the falling satellite chunk that knocked Joe Biden out. With no assistance from the supernatural realm whatsoever. Yep. No lie.) I guess that totally destroys the myth that – even if they, like Bush, violate every tenet of conservative dogma, from fiscal restraint to bowing before the sacred tablet (that is, the Bill of Rights) – Republican presidents can at least be trusted to appoint a God-fearing, flag-waving judge … or at least one that takes his oath to uphold the Constitution seriously, regardless of which side he’s on in the Culture Wars.
Regulating You for Living (Just Being Here Is Enough)
What’s even more screwed up is how the majority came to their decision. (For all we know, they probably just took a dartboard and landed on “legal.”) Government lawyers rested their case on the Commerce Clause, as did the White House, Congress, the President, and the usual suspects – the Obama Zombies™ and the Progressive blogosphere, for one. Ultimately, the Supreme Court scrapped that defense (me likes crumpled up paper), and stuck with something even more Looney Tunes. By the way, the Commerce Clause, apparently, is a carte blanche for the feds to regulate any and all economic activity that “affects” interstate commerce – from the food you buy, to the clothes you wear, to the pills you pop, to the movies you watch, to the car you drive, to the books you read. Government bureaucrats have the right, according to Progressives, to second-guess mutually agreed upon, consensual trades in the name of protecting us from ourselves. Screw voluntary exchange and individual discretion over one’s purchases. We don’t want you eating fatty junk foods, riding around in gas-guzzling SUVs (pollution-on-wheels), sipping down things that make you all kooky, and injuring yourself in the boxing ring just for a quick buck. What kind of mother – I mean, government – let’s that happen to her – I mean its – gahhhhh!
Fortunately, the Court (or as Ryan W. McMacken “affectionately” refers to them, our “politicians in robes”) said, “Woah. Wait. What?” to that totalitarian load of philosophical crap – which, despite not being the last page in our spine-chilling series of events, led to Catoites throwing allegorical parades in the streets. (Allegorical, by the way, means “figurative,” not Al Gore spouting off his hot air, apocalyptic, doomsday ramblings on a parade float with “It’s The End of the World As We Know It” roaring in the background. Disturbing images. Flashing. Before my eyes. Lord have mercy. Don’t imagine him doing a “glum” dance. That just makes it worse.) But, what do I know? Maybe this is something to celebrate. After all, for decades, Progressives have been arguing that the “Commerce Clause” gives Washington the power to stick its grubby nose in anything and everything that deals with our economic affairs, whether it’s how many hours we’re allowed to work, who we’re allowed to hire, and what fees we’re allowed to charge. But I wouldn’t take a Sharpie and plaster smiley faces, hearts, and kitten pictures all over the town just yet. The justices did not hang that interpretation out to dry completely – although I would be ecstatic if that were the case. No, they simply balked at the most extreme version of it, which is that even inactivity – the mere failure to buy something or disassociate with someone in the marketplace – falls under the government’s broad scope. That’s crazy talk, said Justice Roberts. The Commerce Clause allows the government to regulate commerce, not the absence of it.
Let’s get serious for a moment, though: Even that slightly narrowed down interpretation is at odds with our Founding document. Search through the ratifying debates, the writings of the Framers, and the text of the Constitution itself, and you will find that “interstate” commerce refers, not to every single billionth trade that is made by every single billionth buyer and every single billionth seller every single billionth day, but rather to trades that happen “among” – not within – the several states. That means the transporting of goods and services from Wisconsin to Michigan (and vice versa), not what happens directly in Wisconsin and what happens directly in Michigan. So the Constitution does not, as the Roosevelt-packed court argued in Wickard v. Filburn, allow the feds to bully, pester, and jerk around a helpless, straw-suckling, suspender-wearing farmer dude who grows wheat on his own farm to feed to his own family and to his own damn animals without actually shipping the grains and vegetables to other stores, farmers’ markets, and companies outside the state. As Madison, Jefferson, and others repeatedly argued – and assured those who believed the Constitution would create an all-powerful, tyrannical super-state emboldened to do whatever it pleased (Can you say “prophets?”) – the main intent of the Commerce Clause was to set up a national free trade zone whereby neighboring states could not slap tariffs on another willy-nilly, cut off entire classes of goods (food, medical supplies, water, etc.), and effectively starve people to death, leave whole economies in ruins, and totally destroy manufacturing, weaving, crop-growing, dairy farms, precious metal industries, and the rest. The Commerce Clause was designed to liberalize trade, not stifle it. Why should we be shooting fireworks, popping open wine bottles, and wagging our fingers at the statists, shouting, “In your face!” when the Court has only accepted the “centrist,” watered down version of the Commerce Clause, not the strict constructionist view? Beats me with a skyscraper-sized, steel-plated, iron-legged robot. Beep. Bop. Zurp.
Progressive Bloggers, I Hate to Say I Told You So, But…
The Washington Supremes didn’t even give a passing glance to the oft-repeated “general welfare” argument – which New Deal warriors have peddled in the past as a rationale for manically out-of-this-world expansions of government power over private industry and the American people, as long as the measure, restriction, penalty, or spending program (what a mouthful … crunch, crunch, gurgle, gurgle) advances what the peoples’ elected slave drivers in Congress deem to be the “greater good” of the public (more like, “Ze great-ah goot. Heil ze Nation!”). In heated squabbles with ObamaCare supporters, I’ve stumbled across this argument time and time again, with a lot of bumper-sticker slogan-inspired lecturing at the end, and not a lot of substantive rebuttal. For the sake of space, we’ll leave this topic for another post. (In sum, “general welfare” establishes uniform and non-discriminatory treatment toward states and various sections of the country in carrying out expressly enumerated powers, rather than, say, imposing an excise fee on wagons in Rhode Island, but leaving Massachusetts – the breeding ground for say, President Wagon-Hater’s supporters – alone. Needless to say, the Court seems to believe the extremely expansive interpretation of the clause doesn’t hold water – well, at least the conservative and moderate bloc seems to think that. I’m not so sure about Ginsburg and Kagan. But I digress. It can’t be used as a legal defense for ObamaCare. Here’s looking at you, Nancy Skinner.)
It’s Not a Tax, But It Is
So, what then, was the Court’s alibi for refusing to bang down the gavel on this one? My brain is twisting itself into funny balloon animals trying to figure that one out. Justice Roberts, as a matter of fact, nearly threw in the towel and admitted, that based solely on the mind-bending legal arguments made by the defense, ObamaCare was unconstitutional and therefore about as null, void, and inoperable as one of those scratchy channels on the DTV box-amahoozits. Read as a penalty or a command, he said, the individual mandate broke the law. Oh, dearie. So if Roberts wanted to save the bill – as many astute legal scholars have observed – he would essentially have to appoint himself as a temporary member of Congress (more like crown himself monarch of Bizarro World) and re-write the law so that it was constitutional. Oh, I see how it is, you little mischief-maker. Kids these days. Even though the legislation clearly indicated that the mandate was a penalty and not a tax – even though President Obama, Nancy Pelosi, and all the other lawmakers who voted for passage of this heinous, slime-covered, witch-brewed concoction kept telling us it wasn’t a tax – Roberts retooled the wording, if only just this one time (sure, that’s what they all say), to uphold the mandate under the Taxing Clause of the Constitution. And there you have it, folks. Just change “penalty” to “tax,” wave the magic wand, sprinkle some fairy dust and – voila! What was once constitutionally criminal – a blatant usurpation of governmental authority – now becomes legal. Next time I decide to set a skyscraper filled with cute, cuddly kittens on fire, I’ll make sure to keep hire Justice Roberts as my attorney. Perfect.
Time To Get Serious, Children
Essentially, this is what Roberts is saying: Penalizing a person for not buying a certain product is impermissible under the Constitution, whether you’re talking about the federal government’s commerce powers or any other of Washington’s expressly delegated responsibilities. But if you want to tax somebody for not buying a certain product, that’s a different story. Instead of calling it a “fine,” call it a “tax,” and whoop-dee-doodle! Congress has virtually unlimited powers to “lay and collect taxes,” and the Court will be damned if it tells Congress, “You know what, get off your high horse and stop terrorizing poor little Orphan Annie for not buying insurance coverage out of her price-range, you dips.” It is not our place, says Roberts, to be sounding off on whether or not a tax is wise or moral – only whether or not the Constitution permits it. But it doesn’t, my friends. It doesn’t. (Jot down some notes. There will be a test on this. And it will be graded. Muwahaha. Evil teacher strikes again.)
Most of the states who ratified the Constitution would not have done so if the “taxing power” gave Congress free rein to pick peoples’ pockets, raid bank accounts, confiscate earnings, and seize life savings at will to finance whatever it was that politicians could dream up. (If I, as a private citizen, tried to pull that off, I’d be writing blog posts in prison. And if all those years watching Arthur taught me anything, I’d be living off pretzels and water for the rest of my life. The horrors! The unspeakable horrors!) In the minds of totalitarian Progressives, government exists to provide cradle-to-grave security, prescribe medicine, build wind farms, redistribute wealth Robin-Hood style, subsidize favored industries, educate children (more like indoctrinate us to be obedient, unresisting cattle who do whatever our overlords tell us to do … Moooo), crack down on cigarette smokers, save the planet, and keep the proprietor of Granny’s Bookstore in line. James Madison begged to differ, and so does the Tenth Amendment. (Yes, Rachel Maddow, you can add me to that dirty list of “Tenthers” you’re always crowing about. I’m going to come down there and wave a Gadsen flag in your face just to rub it in. Munch, munch. Yummy yellow.)
The federal government is one of strictly enumerated powers that is limited in its scope and is only permitted to carry out vital functions – that is, issues of great national importance – that cannot be handled by smaller, more intermediary institutions (although, for us “won’t say it here” sympathizers, even the notion that government can do anything better than the private market is questionable). Article 1, Section 8 lists, in a very clear manner, what the powers of Congress are: national defense, diplomacy with foreign nations, copyrights and patents, coining and regulating a common currency, delivering mail, doing some minor infrastructure-related stuff (but not everything) – and that’s about it. Government is not our Mommy, nor is it a Divine Savior sent from above. It exists to protect individual rights, secure private property rights, enforce voluntarily-signed contracts, and keep foreign terrorists at bay – but certainly not try to remake society from the top-down, and certainly not to turn around entire civilizations of bloodthirsty (but technologically backwards) Islamic extremists.
We need to continue to fight on the ideological and philosophical battleground in defense of these ideas – which are rooted in natural law, self-ownership, and the non-aggression axiom – but there is almost no doubt in my mind that we have the better of the constitutional argument, no matter how archaic and outdated our oracles in robes seem to think our Founding document is.
WARNING: Dangerous Right-Wing Hate Speech Alert! The Tenthers Are Coming, the Tenthers Are Coming!
Telling us what our insurance policy should cover is not something found in Article 1, Section 8. Telling us what vitamins, drugs, and supplements we can swallow is not something found in Article 1, Section 8. Ordering our physicians and nurses around like slaves to some omnipotent bureaucratic state is not something found in Article 1, Section 8. Telling us to buy something – or else – is not something found in Article 1, Section 8. And the Constitution does not allow our taxes to be appropriated for any of these purposes – only the powers specifically granted to it.
As the Tenth Amendment demands, all powers not listed in the Constitution are to be left to the states and to the people – our churches, our shelters, our soup kitchens, our hospitals, our philanthropists, our private charities, and all of the compassionate families, neighbors, and individuals who surround us. If Washington lawmakers or overzealous presidents usurp their power by cracking down on free speech, locking up protestors, depriving us of due process, or taking over entire industries, it is our right – it is our duty – to resist, rebel, and disobey in defense of the Constitution and the American Revolutionaries who fought and died so that we could be free. If the Supreme Court won’t keep these power-hungry tyrants in check, then it is up to we the people, in every state, county, village, and household, to do their job for them. Nullification, as Thomas Jefferson forcefully asserted, is “the rightful remedy.” A piece of paper is not enough to keep the Washington machine from trampling our rights and making state and local governments its subservient accomplices, involuntary or otherwise. “I will not comply” should be our battle cry. It already is. Missouri, Virginia, Louisiana, and even Wisconsin – the birthplace of Progressivism, for heaven’s sake – is already telling Congress, “Up yours!” That’s the spirit. (Care to hear my views on the Second Amendment? I didn’t think so. Kudos to Sharron Angle for saying what the Establishment doesn’t want to hear.)
Only certain types of taxes are allowed under the Constitution, namely excise, duties, imposts, income, and direct taxes. Everything besides income is supposed to be uniform (Ten, hup!) throughout the nation, and these are only supposed to be laid and collected for the specific and express purpose of raising revenue for the federal government. Nothing else. The ObamaCare penalty for not buying a government-approved insurance package is apportioned based on age, geographical factors, family size, and other unrelated factors. And its purpose is to dangle a carrot in front of you, training you (almost like a horse) to do the “right” things and steer clear of the “wrong” ones – not, as the Constitution stipulates, raise money to carry out enumerated powers.
Whether the government is enforcing a regulation that tells you to buy something or penalizing you with a tax if you don’t still means that your choices are being restricted, your liberty squashed, and your inalienable rights forcefully taken from you against your will. It still means violence, threats, intimidation, and extortion used by the State to achieve certain ends. And it still means that the gatekeepers of the federal Leviathan are acting in a criminal fashion and need to be resisted if we are to preserve our liberties. The Supreme Court may not realize that, but we must. Maybe secession and nullification aren’t such crazy ideas after all.
Maybe it’s our politicians and judges who are the crazy ones.