By Tim Dunkin
Like just about everyone else with any common sense, I was tremendously disappointed with the Supreme Court decision to uphold ObamaCare. Especially troublesome, however, was that the deciding vote was not cast by Justice Kennedy, that perennial bit of dandelion fluff in the wind, but by Chief Justice Roberts, hithertofore reputed to be one of the reliably conservative votes in that body. Yet, as with other reportedly conservative justices placed on the bench by Republican Presidents, Roberts has apparently “gone Washington” on us.
Many speculations have abounded as to why Roberts voted (and justified it) the way he did. The logic of his opinion was certainly tortured. Beyond that, however, there seems to be somewhat to suggest that Roberts' vote was a last minute thing, a surprise, a two down in the bottom of the ninth type of switch hit. The language of Justice Scalia's dissenting opinion makes it sound like it was originally written as a majority opinion (not least of which because it repeatedly refers to the opinion affirming ObamaCare as the “dissent,” almost like the majority had voted against ObamaCare at the time Scalia wrote it). Did Roberts change his vote, and did he do so because of pressure from the President, from the Democrats, from the media, from those who were arguing that the Court had to uphold this law so as to “retain its legitimacy” and “not lose the confidence of the American people”? In short, did Justice Roberts bow to political pressure and change his vote instead of standing firm for what was right? Could that explain the otherwise peculiar language of Scalia's dissent? Could this explain the tortuous logic used to justify ObamaCare on taxation grounds, and the generally hasty and superficial tone of his published opinion?
Whatever else we might say, regardless of the Court's decision, ObamaCare is not truly constitutional. It is obviously a flagrant affront to the principles of liberty and limited government that are enshrined in our Constitution and which make up the core of the principle and ideology that underlay our Founding. Whether it is justified under the Interstate Commerce Clause or Congress' taxation powers, granting the government an essentially unlimited power to require citizens to purchase goods and services, or face fines and other punishments if they do not, is simply and completely alien to what this nation was founded upon. And frankly, tradition of judicial review or not, it's time that the people started reasserting the fact that the Supreme Court merely putting its stamp of approval on something does not make it “constitutional.” If the Court decided a hypothetical case by upholding a penalty of being burned alive at the stake after slow and painful drawing and quartering for jaywalking, would this mean that this punishment wasn't “really” an offense against the 8th amendment? What about if the Court decided that it was constitutional for the government to ban all guns, or ban all political speech that disagrees with it, or that the government could just eliminate the legal concept of habeas corpus entirely? Would these decisions suddenly become “constititional” just because five or more Justices said they were?
Of course not. The Constitution still says what it says, and it still means what the plain wording says, regardless of the legal opinions of any judge or judges. When we start to reassert this, and can find some legislators with the backbone to go along with it, we'll be a long way towards rolling back the krytocratic nature of too much of our government.
Anywise, back to Justice Roberts. Many conservative commentators are trying to put on a happy face by imagining that they see some sort of “silver lining” in the ObamaCare decision, on the basis that Roberts denied that ObamaCare was constitutional on commerce clause grounds (only becoming constitutional on the grounds of falling under Congress' taxation powers – how it can be both at the same time, I do not know). Supposedly, this is in reality some sort of huge-but-stealthy victory for conservatives – sort of a case where Roberts was playing 10-dimensional chess and moving the pieces with his mind - because it “puts an end” to justification of ever-expanding powers for the federal government that have been exculpated by appeal to the Interstate Commerce Clause. So instead, the federal government can now justify its unlimited power grabs by appeal to Roberts' newly-minted definition of congressional powers to tax. Even when you don't engage in economic activity, you can be “taxed” for it. This is a victory? Only of the most pyrrhic kind imaginable. A few more victories like this, and we'll be going back to Epirus alone and undone.
Of course, even on this point, Justice Roberts missed the obvious unconstitutionality of ObamaCare as a tax in that the bill originated in the Senate, instead of in the House (which is where revenue bills, i.e. taxation, must originate, per Article I, Section 7). Even in his outlandish excuse for an opinion, Justice Roberts fails to understand simple constitutional principle.
And it's not as if future Courts, when deciding cases in such a way as to enhance federal power (as they almost invariably do), are going to allow Roberts' one opinion against misuse of the Commerce Clause to overturn a hundred years of precedent. The ability of Congress to intrude itself into any and all areas of economic activity (or non-economic activity, or non-economic inactivity) and use the Commerce Clause as its excuse is not going to be abated in the least by Justice Roberts' arguments in the ObamaCare case.
No, what has happened is that Justice Roberts, out of some political concern for making somebody or a group of somebodies happy, or to preserve the reputation of the Supreme Court with the “right” people, or to simply “trade” a vote with a leftist Justice on another case (as does, unfortunately, sometimes happens), sold us down the river. A week ago, when it appeared that the Court might overturn ObamaCare, MSNBC's Chris Matthew's opined that Justice Roberts would be the next Roger Taney, the Chief Justice who presided over the Dred Scott case in 1857 that ruled that freed and/or former slaves were not American citizens, and therefore not entitled to the protections of our citizenship. Little did Matthews know how right he would be (though in a diametrically wrong way) – Roberts' vote essentially sold Americans into slavery to their own government.
Roberts' vote is an object demonstration of what happens when those in power choose to put politics ahead of principles. When a public figure is more concerned about pleasing some group, or in trading influence, or whatever else, instead of doing what is intrinsically right according to the principles of liberty, then freedom dies just a little bit more. Yet, it seems, the only people who end up staying in the public realm for very long are the people who will sell our liberty down the river for a sinecure or a few votes in an election. There's a reason George Washington warned us against the spirit of partisanship – when loyalty to a party or a charismatic public figure becomes more important than loyalty to the first principles of the nation and its constitutional system.
Yet, it is this very spirit of party and of politics instead of principles that has got us to where we are. Not just with our current President, but with the guy who wants to replace him.
Let's be brutally honest here – ObamaCare would not be an issue for us here and now if it were not for Mitt Romney. He is the spiritual grandfather of ObamaCare, who worked hand in glove with Democrats in Massachusetts to craft MassCare, a program which Obama and his handlers openly admit provided much of the blueprint for the “Patient Protection and Affordable Care Act” that Obama and a Democrat Congress foisted off onto us. MassCare was not forced onto Romney by a Democrat-controlled legislature. He worked with them on it, and was proud to have done so for a number of years.
Ultimately, this - along with a number of other horrific things in Romney's past record – are the result of the fact that Romney has no principles – only politics. He is a political animal who is driven in whatever direction the polls and the politicians want him to go. I hear a lot of talk from conservatives that at least Romney will be “teachable,” that we'll be able to move him in our direction, even despite his past. Many point to his stated promise to “repeal ObamaCare on day one.” Of course, Romney is smart enough to know that he has to say these things if he wants to get elected. Who knows? Maybe he will make good on this promise. But then again, polls like this one could also provide him the political cover he'd need to welch on the promise, too.
I suppose that when you get right down to it, we have little choice in this contest between Obama and Romney. It's distasteful, since neither of them has any principles or any commitment to constitutional liberty. But who knows, maybe Romney will end up being “teachable,” if he can be constantly pressured from the Right. Perhaps it's best that he be elected in this “emergency situation” in 2012, if only to get Obama out of office. Nevertheless, it seems as if a lot of the reconciliation to Romney has a partisan “our socialist is better than their socialist” tenor to it. I'm sure that Republican Party hacks are happy that they got their telegenic “electable” guy with the great hair into the nomination, but for those of us who actually care about liberty, the pickings are awfully slim this time around.
Ultimately, whether we're talking about Justice Roberts, President Obama, Governor Romney, or any of the host of political reptiles infesting Washington DC, we're talking about a cadre that transcends party lines and which really serves only itself. Much of what the average person thinks of as “Republicans versus Democrats” is really just stage acting designed to convince us that the gulf between the two parties, and the bulk of the individual elected officials within those parties, is greater than it really is. Yet, while there may be some superficial differences on social issues or some aspects of foreign policy, the political class nevertheless generally holds to a set of assumptions about politics that are contrary to liberty and to the fundamental beliefs of the people at large. This is why most of the political ruling class – from both parties – continues to speak as if global warming were a reality rather than a fraud; this is why they support open immigration and amnesty for illegals even though most regular people oppose them; this is why expansive government spending programs are considered untouchable, that it would be “radical” and “crazy” to cut or eliminate them, even though this is what our economy desperately needs and the productive people of the nation desperately want. Politics over principle. Buying votes wins out over doing what's right. Being in favor with the right crowd tops making the difficult decisions that must be made to rescue this country from the pit of destruction. Whichever label they wear, the “progressive” approach of increasing government and bringing more under its control is becoming de riguer for both major parties. Sooner or later, something is going to give – it remains to be seen whether this give will be peaceful or not, whether it can be done in a controlled fashion or will spin out of control.