Get this if you get nothing else
Understand this: it doesn’t matter if ObamaCare is repealed next year. Repeat as necessary until understood. The SCOTUS ruling is on the books. Congress can make you buy anything, as long as it fines you if you don’t. The concept of constitutional limits on the power of government has been effectively removed from our guiding idea of law and jurisprudence.
As the vice president would say, this is indeed a big effing deal. We have reached the end of the quiescent consensus on which we conducted most of the 20th century: the consensus by which we tacitly agreed that the encroachments of government – with big surges under Wilson, FDR, LBJ, and Nixon – weren’t a menace to constitutional protections for our liberty and rights. The consensus was that we had those protections, and could therefore afford to hover at the precipice in the certainty that nothing could push us over it.
But now something has. If we abide by our judicial tradition, this SCOTUS ruling will govern the rulings of the future. Congress has been accorded a colossal power. All it has to do to use it is impose a fine if we don’t buy whatever Congress says we have to.
What we will have to think about
Here are some questions we will have to grapple with. What is our view of jurisprudence? In the 19th century, Americans did not see judges as infallible, or the courts as the sole and final arbiters of what the law means, as if Congress just dispatched some monkeys to produce our laws on a bank of typewriters, and we had to wait for the Supreme Court to organize the unintelligible mess for us and tell us what it meant. SCOTUS was never intended to be a Delphic oracle. We have come to treat it as one, however, and now it has handed down a ruling that will destroy our concept of natural rights and limited government. What are we to do about that?
Can we discipline ourselves to speak as if words have meaning, and the content of the law matters? Republicans have behaved just like Democrats by immediately jumping on the “Obama broke his promise on taxes” bandwagon. In this instance, he didn’t break his promise on taxes. He and Congress imposed a mandate that violates the American principles of limited, constitutional government. That’s not a broken promise; it’s a bad use of the executive and legislative power. Call it what it is, not what seems convenient for campaign sloganeering.
Words and concepts matter. There is no accountability, for government or anyone else, if they don’t. Can we come to grips with the damage we do by letting the sentimental, imprecise use of words become our form of governance?
The biggest question we have to answer for ourselves is whether we really believe in limited government. If we do, how do we approach our current problem? Our national tradition over the last 100 years gives us no solution. By that tradition, we are required to abide by a SCOTUS ruling that makes the character of Congress the only thing standing between us and a fatal expansion of government power. (David Brooks lauded that outcome very specifically on Thursday.) In other words, we have become ancient Athens.
The Framers didn’t mean for that to be the case. They wrote limits on power, separation of powers, and checks and balances into the Constitution precisely so that the character of the legislature (or indeed, the character of the other two branches, in their separate capacities) would not be the sole determinant of everything that happened to us. They took as their example of legislative bodies run amok the ancient Athenians, and intended – with great and sincere determination – to prevent transient legislative majorities from bankrupting and destroying the new nation.
Do we now have any remaining feel for that purpose, in our consciences as Americans? Do we no longer agree with the proposition of constitutional limits? Is John Roberts, born in 1955 – and therefore educated starting in the 1960s and the years afterward – an example of what the American feel for constitutionalism now is?
About the Author: J.E. Dyer is a retired US Naval intelligence officer who served around the world, afloat and ashore, from 1983 to 2004.
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