On June 28, 2012, Americans learned many things. We learned that the same thing can be a tax, not a penalty, in one part of a law, but is a penalty, not a tax, elsewhere in the same law. We learned that a Yes vote is not political but a No vote is, on this case, but a No vote is not political, and a Yes vote is, on another case. And we learned that a constitutionally limited government is a dusty old historic artifact, not just in the minds of socialists, but even in the minds of justices whom we had mistakenly believed, when they told the Senate that they would always respect and obey their oaths of office.
Politicians have been claiming that education is a just function of government ever since the Founding era, when Thomas Jefferson called for universal taxpayer-funded schools (even though his genius, and that of his fellow Virginians, was usually successfully developed through homeschooling and private tutoring). But if government feels obligated to teach lessons like these, we would all much rather they didn’t bother.
A Constitutional Lesson
The Constitution, negotiated 225 years ago this summer in Philadelphia’s Independence Hall, provided for a limited government. The Framers’ great pride was that they had produced a strictly limited government, small enough to avoid undue intrusion into the private sector, while just strong enough (unlike the Articles of Confederation that it would replace) to ensure a stable currency, the rule of law, and the ability to pay their soldiers so the country would be safe from invasion.
The Constitution was and is a combination of two things – a list of permitted activities for government and a manual for how the employees of that government were to be organized. The American left long ago disregarded the former, concentrating their praise (for an American politician knows he must only have praise for the Constitution if he wants to win elections) on the latter aspect. “What a wonderfully balanced system it is!” they say. “How brilliantly organized!” “We’re proud to be part of it!”
…as if our Founders risked their lives for the right to have an upper house in which you had to be at least thirty, but a lower house in which you could serve at twenty-five. As if the Framers suffered through a hot summer in Philadelphia far from home, just to ensure that the president was at least thirty-five, as if a twenty-year-old would ever be elected nationally anyway. Ridiculous.
In fact, the important thing was and is the limitation. The whole point of the Constitutional Convention was finding a way to meet our needs for governance, while the government remained highly limited. The point was to expand the powers just a little, in an organized fashion, pushing the walls outward just a bit, but without knocking them down in any direction.
The new government was given certain enumerated powers, and was given the power to tax to pay for these powers. Just in case that wasn’t clear enough from the text – it certainly should have been, but just in case – the states ratified the Tenth Amendment, to make it crystal clear even to the unusually thick. If the Constitution doesn’t say the federal government can do something, then it can’t.
A Taxing Lesson
The Commerce Clause has long been stretched to the breaking point, as powerful agencies from the FCC to the EPA have been established to regulate interstate commerce. If you sell or buy a product across state lines, the federal government has claimed the right – sometimes fairly, usually not – to wrap its claws around a pen and write some rules to govern you.
But even this clause, expansive as it has been judged to be in the 20th century, could not be said with a straight face to regulate the choice not to sell or not to buy such a product. Lacking the standard go-to tool of one’s predecessors in the black robes, what’s a statist to do?
The Constitution provided a legitimate option, the amendment process. If the American people wanted the federal government to take over the healthcare sector, then Congress and/or the states (there are even alternate paths – the Framers were nothing if not broadminded) could introduce an amendment and campaign for its ratification. If the public really wanted nationalized healthcare, they would clamor for it and the states would knock each other down to be the first to ratify such an amendment.
But in the real world, however, where no statist would ever dream of taking a losing cause like this to the people, the Pelosereidian Congress passed, and a lawless president signed, an act to just hand over to the Supreme Court. The Supreme Court then just had to look for some justification to let it go without an amendment. Congress and the President no longer feel bound by their oaths of office; they pass anything they feel like it, and have long since trusted the judiciary to sort it out.
Four justices have long been known for their dismissal of their oaths… five were thought to take their oaths reasonably seriously. But then the Obamacare case came face to face with Chief Justice John Roberts.
A majority of the justices – the four known unconstitutionists and the Chief Justice – imagined that the power to tax is unlimited, so anything with a financial aspect can be called a tax and deemed Constitutional. Much like many a similarly destructive villain in the movies, the idea is brilliant but insane.
The power to tax is clearly limited; the government can raise taxes to fund only the legitimate functions of government. Without limits on government functions, there’s no point in any constitution, and without the power to tax to fund those functions, there would have been no reason to replace the original Articles of Confederation (which provided for government functions without a means to fund them).
Gouverneur Morris’ brilliant preamble explains what the Constitutional government was intended to accomplish, and how – that it was their design for a limited government that would provide for the common defense and promote the general welfare. So, when the taxing power is stated in Article I, Section 8 as being provided for these functions – the common defense and general welfare, the term “general welfare” is used only as indicated in the preamble: The general welfare, as the Framers meant, envelopes the clauses of the Constitutionally listed functions: this constitutionally limited government, and only this, is what they defined as constituting the promotion of the general welfare from the capitol, and thus being legal for tax revenues to fund… not any other idea, old or new, that some future majority might think of adding.
Clearly, therefore, the Constitution only allows the government to tax as needed to pay for the government obligations enumerated in those seven articles. To add new ones, an amendment would be required.
If the power to tax is not limited to authorized functions, then there is no Constitutional limit; the government could just write any law it wanted and assess a penalty for non-compliance to “render it constitutional.” That’s not freedom; it’s tyranny.
The end of precedent
The United States of America was born with a long and proud heritage of British jurisprudence… but on the day the new government was reborn under the freshly ratified Constitution in 1789, there was only the Constitution itself, no shelves of federal statutes to refer to when there was a question.
So, just as language needs dictionaries and doctors need medical books, the lawyers and jurists had to have a system to rely on, in the meantime, before our new government built up those new bookshelves of federal laws.
We therefore had an understanding that we could reach back to prior existing work in the body of English common law… not forever, but on any issue, until the United States put something down in writing ourselves.
So early jurists, faced with a question unclear in the Constitution or other new laws, might refer to the Federalist Papers, which were written by three Convention delegates between the Convention and the ratification, and thus would help to understand what the Framers meant. They might reach back to “The Law of Nations” by de Vattel, or might reach back to Blackstone’s “Commentaries on the Laws of England.”
As our nation aged, and Congresses passed more and more laws and clarifications over the years, such reliance on pre-1789 sources seemed like it should be less necessary, and our judges and justices began to rely on post-1789 laws and rulings; being more recent, they felt more appropriate, more in context.
Relying on post-1789 laws makes sense, because these are laws passed by the Constitutional lawmakers. But relying on precedent – when commonly defined as the rulings of prior judges and justices, not actual laws – has proven more and more problematic over the years.
Reliance upon a law is firm, and is required until that law is overturned or replaced. But reliance upon a prior judicial ruling may just serve to amplify a prior error; that’s what has happened more and more, as our years have grown in number and our judiciary has diminished in talent.
Once upon a time, there were relatively few truly bad decisions, and could easily be avoided. Dred Scott v. Sandford was a black mark on the judiciary for decades, and it largely stood alone as a nightmare of error. It didn’t cast the generally accepted concept of relying on precedent in a bad light.
But in the twentieth century, bad decisions, weak decisions, foolish decisions started to multiply like so many black-robed rabbits, poisoning the well of precedent for future jurists to draw from. Griswold v. Connecticut, with its emanations and penumbras… Roe v. Wade, with its arbitrary trimester framework… Arizona v. United States, with its attack on employers who hire lawbreakers, while giving the lawbreakers themselves a counterproductive and unwarranted pass…
…and now NFIB v. Sebelius, with its idea that anything is Constitutional if it has a financial aspect.
In the current Court’s twisted mind, turning the theme of JFK’s inaugural address on its head, government can legally charge any price, inflict any burden, mandate any hardship, and neither the Constitution nor the judiciary will stand in their way. In the cowardly new world of NFIB v. Sebelius, the checks and balances of the American system have given way to an unchecked legislature and an unbalanced imperial presidency.
But there is a solution, and that solution was foreseen by the group of jurists known as originalists. For decades, Clarence Thomas and his adherents have had the good sense to disregard the precedent of recent decisions, and instead to focus on the writings of the Framers themselves.
Instinctive reliance upon judicial precedent was suffering enough before the current Court punched a hole in the wall of the Constitutional fortress; such knee-jerk respect for other opinions is now wholly discredited.
When future Courts rule, they will have to reach back again, as they once rightly did, and think of what the Framers meant… not by trusting the judgment of ever-more removed justices a century or two after their time, but by reading the writings of the Framers themselves, and of their contemporaries and antecedents.
If there has been an ongoing debate in recent years, between the original text and the interpretations of recent courts, NFIB v. Sebelius has – perhaps unintentionally, but still without question – tipped the scales irrevocably away from the system that produced this outrage.
NFIB v. Sebelius is now in print as precedent. Like adding an ounce of strychnine to a glass of fine wine, or mixing a cup of arsenic into a pot of sauce, this blueprint for tyranny has demonstrated for all to see how far the Court’s judgment has plunged from once-lofty heights, poisoning the well of precedent for good.
Only one course remains for the American judiciary: to recognize that heavy reliance on precedent has been rendered toxic by a century of excesses, and that the time has come to return to the Framers themselves when interpreting the Constitution.
Obamacare is a massive assumption of unconstitutional national power, a destructive basket of new and increased taxes and takeovers designed to bring the private sector to its knees and turn the United States into another France, another Greece, another Cuba. It must be repealed, because even as the Court was forced to admit, it is bad policy on a colossal scale.
But it has served one useful purpose: it has brought a case to the Court that, in its ruling, has laid bare the moral failings of the modern judiciary for all to see. If this case contributes to a long-needed exposure of the intrinsic error in an overly deferential respect for precedent, and a return to reliance upon the wisdom of the Framers, then at least it shall not have been utterly in vain.
If this nation defeats Obamacare and its tyrannical champion this year, then it will emerge stronger for the many painful but important lessons it has learned.
And if not, well, then this nation will be an exception to many other great nations in the history books. The reasons for the falls of many past great civilizations have been the curious study of brigades of historians for centuries - the Romans, the Greeks, the Franks, the Byzantines – all soared, then fell victim to various internal and external trials.
But if these United States fail to overturn Obamacare and the myriad other sins of the Obama administration – and if they fail to give the petty dictator his walking papers in November – then the reasons for America’s collapse will be plain for even the amateur student of history to see, a cautionary tale for future millennia, the saddest lesson of them all.
Copyright 2012 John F. Di Leo
John F. Di Leo is a Chicago-based Customs broker and international trade lecturer. While his degree says that he studied his political science and history at Northwestern University, his most important teachers have been since then, the ones available to everyone, at bookstores and libraries, on computer screens and eReaders: Richard Brookhiser, Willard Sterne Randall, Paul Johnson and William F. Buckley, Jr… and the original sources as well: George Washington, Alexander Hamilton, James Madison. The wisdom of the Framers is plain to see; one needs only to read their words, and to study the histories written by those who respect them.
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