Why Roberts is Right

It is tempting for libertarians to join the echo chamber of conservatives by deriding the majority opinion in the recent Obamacare case. It would be emotionally satisfying, I suspect, to focus one’s outrage at Justice Roberts, and brand him a traitor to liberty; the one responsible for dropping his rifle and running in the face of liberty’s enemies. He capitulated to the statists and sold us all out. Feels good, doesn’t it? We do love our boogie men.

But if you think that, you do the cause of liberty a great disservice. To be sure, my first reaction was probably quite similar to that. The supreme court of the land had just sided with the people’s representatives in saying that, in what is marketed as the land of liberty– the beacon of freedom in the world–I, as a free man, can be compelled to buy things. Not just things, mind you. But things pleasing to the ruling party. I felt as if someone had just kicked me in the stomach.

So the first reaction is to blame Kagan. Any fair-minded person concludes she should have recused herself. Had she done the right thing…

Then, we blame Roberts. He’s no conservative. He sold us out. Etc.

And let’s not forget how we got here. The legislative shenanigans and outright fraud that stuck a thumb in the eye of legitimacy and walked over the Constitution to produce a 2400 (!!) page document so opaque and convoluted that it cannot be called a law. It’s similarity to law stops at the fact that my failure to comply with it ends me up in jail.

It should never have happened. Our system is designed to prevent exactly this sort of thing from happening. Through checks, balances, federalism and elections (hello, Scott Brown?) somewhere along the circuitous path and Constitutional minefield that ultimately allows our system to produce a state powerful enough to compel me to surrender my life’s choices to a commissar, someone will do the right thing, won’t they? The truth is, we shouldn’t even be here. But here we are.

So, surely the Court will save us. If no one else will do the right thing, surely the Court will. The final backstop of liberty and Constitutionalism will make it right. But it didn’t. The system had failed.

And then I read the majority opinion. As I read, slowly, sadly I came to the unhappy–no, the infuriating–conclusion that Chief Justice Roberts is correct. And we should be ashamed.

Hopefully, you too have read the case, but if you have not, understand first that the so-called individual mandate was indeed struck down. The majority of the court held the obvious opinion that the commerce clause cannot be used to compel commercial activity. Roberts joined the majority in one very narrow thing– that, although the commerce clause cannot be used to compel activity, the Congress has a taxing authority which allows it to tax anything, and thereby arrive at pretty much the same place as a mandate. He reasoned that although Congress does not have the power to compel you to buy health insurance, it can tax you if you don’t. So, the government can’t make you eat your vegetables, but it can tax you if you don’t. It’s outrageous, that’s true. But Judge Roberts is not inventing a power. He is not making us serfs. He is merely explaining to us that we already are.

Consider. In the last century, we developed an enduring comfort with using the tax code to effect behavior. We do it all the time. We tax cigarettes because they are bad–so-called sin taxes. And no one bats an eye. We give mortgage deductions to people who buy homes, but not to renters. And we accept that. We give tax deductions to people with kids. We have a “gas guzzler tax” a “luxury tax” a progressive income tax, inheritance tax, Capitol gains tax…. In all these cases, we impose taxes to effect behavior, reward the groups and activities we like and penalize the ones we don’t. We have a volumunous tax code that employs a lucrative industry that has, as its stated purpose, the goal of shaping behavior to make it pleasing to the authorities. Oh, right…and we also use taxes to raise money to run the government. But that has become almost secondary.

We have allowed this to happen because at each step of the process both major political parties agree with the fundamental idea that the government is an appropriate vehicle for supplanting personal choice. The left and right only disagree over how to use it, not whether it should be used that way. To the conservative reader drawing breath to proclaim your love for freedom–you accepted the premise that the tax code is a good vehicle for social engineering when you accepted the child tax credit, the progressive income tax, the sin taxes (I could go on). Please spare us your lame protestations now. The right will never overcome the left’s march toward collectivism as long as it accepts the fundamental premise upon which it rests. And to the leftist reader–(if you are even still reading) you have long ago abandoned any pretense to the idea of personal liberty, so I won’t bore the reader with recounting your transgressions against the concepts of liberty and limited government. The Founding Fathers understood that the power of the state is the single most dangerous threat to the liberty of the individual. And yet both major political powers are willing to cede more and more power to the state to achieve their narrow political ends, all the while oblivious to the larger danger ahead. This case exposes the myth of the right/left dichotomy.

There is some evidence that Judge Roberts was in a slim majority that was ready to strike down the entire law. Whether or not that’s true, Roberts’ was presented the question “am I a serf” and he replied, “yes, and don’t look to me to remedy it, for this was your political choice.” Tough love. Hating him for that is akin to a child hating a parent who won’t pay his credit card bill. This is not Roberts’ doing. At the end of it all, this is not even Obama’s doing. This is our doing. We have no one to blame but ourselves. We have allowed the political discussion in this country to slip so far that explaining the concept of limited government and personal freedom to fellow citizens is like explaining it to someone from the 12th century. Even now the response from those professing to love freedom ignores firsts principles and frames the whole affair as a political struggle against “the left”. “Obama lied and the economy died” might feel good and will undoubted raise money for the political classes, but such cliches are vacuous…and largely beside the point.

And while Romney might help for a while, he won’t change that. He’s fighting a political brush fire; this is an epochal, planetary war.

The truth is, a country as great as the United States should never have found itself here. We have accepted the premise of collectivism and allowed our legal and political systems to view the individual as a means to the ends of the politically powerful. We have given dictatorial powers to our government through the tax code, and made the IRS the President’s internal army. The only thing Judge Roberts did is make us own up to it. The question is not “how could Roberts have defected to the left and allowed the government to have such power ?”. The question is “how could we have allowed the government to have such power?”.

Justice Roberts may well go down in history as the dad who refused to be our enabler and allow us to escape the consequences of our bad decisions. He forced us to confront the enemy. And the enemy is us.

We have a lot of work to do.



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21 thoughts on “Why Roberts is Right

  1. Have we (previously) accepted the concept that you can be taxed for doing…nothing? Roberts took that federal power for granted, and maybe so, but I can’t think of any off-hand.

    • Very good point. The preferred method until yesterday was to offer tax credits to those who do what the government likes rather than to levy a tax against those who do not act according to the preferences of the ruling political party. I cannot think of a tax on inactivity; only tax credits not available to those who do not act. Not the same thing…until yesterday.

      • So if we’re right that Roberts effectively created a new, unlimited taxing power–and it doesn’t even have to be called a tax–even as he supposedly limited Congress’ power under the Commerce Clause (and I’m not at all sure that he did, as it seems to me his discussion becomes meaningless dicta given the way he ruled) then isn’t this really one of the worst decisions ever?

      • And the more I think about it, the worse it gets. Not only don’t the pols have to label it a tax (the courts can apparently do that for them) but the Roberts decision clearly spells out the route to control behavior via “optional” taxes. He wrote, “Neither the Act nor any other law attaches
        negative legal consequences to not buying health insurance, BEYOND REQUIRING A PAYMENT TO THE IRS.” (p.37)(emphasis mine). When I read those words, I nearly fell out of my chair. The government isn’t requiring a person to do anything–it’s just taking your money if you don’t do what they say. So even if the pols have the courage to call a new mandate a tax, they can adopt Robert’s reasoning such that it isn’t really a mandate or a tax, but rather a simply an optional payment a person can make if s/he doesn’t want to do what the government wants them to do. So really, it’s a personal choice. Heck, it’s liberty in action!

  2. So because a bunch of past Presidents, legislators and SC Justices mucked things things up before now, we should applaud Roberts for mucking it up further and then punish ourselves for allowing us to get to this point? I hate when Libertarians get all condescending like this. It makes us all look bad.

    Roberts was wrong by any measure one chooses to use, and especially any Libertarian measure. It was the epitome of legislating from the bench — of doing precisely that which Justice Roberts lectured us was not within the Court’s authority to do: writing legislation. Furthermore, Roberts view that the purpose of the SCOTUS is not “to protect the people from the consequences of their political choices” is preposterous. If the Court does NOT exist to strike down laws that are unconstitutional as written — regardless of the political implications — what DOES it exist for? Are Libertarians to now support the concept of the “tyranny of the majority,” because that’s what Roberts’s statement boils down to.

    What absolutely IS the job of SC Justices is to pass judgment on the constitutionality of laws as written, and not to reinterpret emanations, penumbras or simple written words in an attempt to shoe-horn a round law into a square constitution.

    Sorry, but sometimes the left is correct and sometimes the right is correct, and the Libertarian instinct to distance oneself from the right more forcefully lest they become confused for a Republican notwithstanding, the right wingers are correct on this ruling.

  3. I am left leaning but I read the entire article. It is cogent and intellectually honest. However if we want a true libertarian society (the govt to do policing and wage wars on the weaker states) then we should look at abolishing the ‘limited liability’ provision afforded to corporations. A corporation or an individual is certainly entitled to fruits of one’s labours. But I do not see the society picking up the costs of failed corporations while the owners (shareholders) hide behind the corporate veil. I have not seen anything libertarian in this. Will the author address this issue

    • Bala Varadarajan: Hats off to you for reading material from people you disagree with. I keep telling myself that I should do that more.
      You don’t need to have the government pay for the costs in order to have limited liability. The difference between limited liability and unlimited liability companies is that you can only demand the corporation’s assets if the corporation owes you, not the assets of it’s investors. The idea is that in large enterprises, it’s practically impossible for the investors to be fully aware of and able to regulate all the actions of the company, so the investor’s liability should be limited to the amount that they invested.
      (In cases where you can prove that the investors were involved, you can still go after them, even if it’s a limited liability company.)
      Limited liability doesn’t have much, if anything, to do with the crazy bailouts. With limited liability, but not bailouts, those companies would have gone out of business like they should have, and the investors would have lost a chunk of money, but not everything.
      So what happens to the costs? The companies run out of money, and default on their debts, which means the banks take the hit. Since the banks get to choose who they give loans to, that’s fine with me.

  4. The article is well written, but says nothing. Yes, Roberts was right and, yes, he said that as voters in a democracy we can choose our own solutions to national problems — like millions of uninsured people, people with pre-existing conditions, the uncertainties of tying your family’s health insurance to the vagaries of your employment. As a citizen and voter you are free to address these national issues. You are not a serf; you are the opposite – – you are a voter. You don’t need to be “saved” and you don’t need J. Roberts as your “daddy” figure. Most of all: when you, as a voter, lose a policy debate, you shouldn’t describe it as an “epochal, planetary war.” That just makes you sound dumb and childish. People are trying to address serious issues affecting the nation’s healthcare problems. The do so democratically. That is a good thing. It also means that things may not always progress the way you would want. OK. Vote again in the next election. But don’t whine, or pretend that your personal political views are some truth standard. Just grow up.

    • Your comment underscores one reason why political discussions tend to be so polarized. The article is written from a libertarian perspective, and your comment is clearly from a democratic one. Those two philosophies view the role of government quite differently, and it is pointless to discuss specific policies from those two perspectives. When a fundamental premise is not agreed upon, the “down stream” conclusions based upon those premises are likely to have little in common. So in order for us to have a meaningful discussion, it is more fruitful to focus on what we really disagree on: the role of government in a Constitutional Republic. In the libertarian philosophy (the closest modern variant to the foundational principles of the United States) the government is the monopoly on the use of force. That is all. So it generally should not be a provider of goods and services, because in that role the government takes away individual choice by forcing people to do what they do not want to do. Consider. Why must I participate in your “health care” plan? Why can I not opt out? If you honestly answer that question, you will understand why we, as libertarians, consider almost all statist schemes such as this serfdom. I do not call it that because I “lost a policy debate”. I do that because the policy debate to which you allude is in fact a question on whether I am going to make decisions for my life, or whether the government is going to force me into its idea of the good life. That is the epochal war. The question is about whether human liberty will frame the next steps in human evolution, or if force and coercion will. Under a liberty-based framework you are free any time you wish to pay for as many insurance policies as you like. You may relegate as many, or all, of your decisions in life to whomever you wish. Please afford me the courtesy of respecting my wishes not to be beholden to your decisions in life.

      • What does the Libertarian society do, then, with people who show up in the ER without insurance? Would you deny care to someone in agony from a kidney stone? Turn away someone who just had a heart attack and will die without immediate care? If I understand your argument about personal responsibility correctly, the answer is Yes to both. And what about old people who came from places with a cycle of poverty, who never learned to make the correct life decisions? Are they denied care? Or those who were educated and responsible, but lost everything due to economic collapse or major medical problems that were not covered by unregulated insurance companies? (Please don’t say Free Market would fix this ill; these evils exist even with regulation, and would balloon without it.) I understand the desire for limited government and personal responsibility. Your arguments are cogent, rational and clear. But in your world, isn’t there bound to be a great deal of suffering by those who made bad choices — or in the case of children, whose parents did — and by people who must suffer greatly due to circumstances beyond their control?

      • The purpose of government is not to be the oracle of morality.

        There is nothing stopping you (and others of like mind) from supporting individuals or organizations or that seek to address the conditions you describe. As a free person, you can choose whom to assist and whom you will not.

        As a serf, that liberty is taken away and reallocated to the morality of the collective (or other centralized power). Thus, the majority not only steals my property to fund their vision of moral behavior, but they also steal my freedom to decide whom I should help and to what degree.

        One may argue that seizing my property via taxation to pay for the state’s standard of kindness is simply an example of the ends justifying the means. But however it is framed, it is still the argument of a thief.

      • Very fair question. I think the best way to answer your question is to quote Washington, “government is not wisdom, it is not compassion…it is force”.  So whenever it is suggested to use government to do X, understand that what is actually being suggested is “forcing people to do X”.  There is no magic to government.  It cannot change the cost of goods and services, nor alter the morality of people who would not act to alleviate the suffering of others .  All it  can do is impress into service those who do not wish to be a party to the life choices of others.  I cannot personally answer as to the morality of acting as you suggest without knowing more, but I do not think it ever moral to force others to act according to my moral calculus–which is precisely what is done when we invoke the coercive power of government.  No, the free market does not itself solve any of these problems. What it does is allow people to be free to make their own decisions in life, to include accepting responsibility for the mistakes of others, if they so choose.  Why would we suggest that somehow, simply by introducing coercion into the whole affair, people would act any more morally than in a free society?  Do we suggest that without forcing people to do things people will not do the right things?  (And “right” according to whom?) And if that is our position, why do we assume that by giving the government this power, the people in government will be any more moral in making these decisions than a free people?  I submit that those people in government will not be any more moral–just more powerful.   In other words, to directly answer your last question, I don’t see how leaving people free to order their own affairs makes them any more or less willing to help others than subjecting them to a coercive system. Indeed I would argue that since coercion atrophies moral sensibilities, people are less likely to help others when the government supplants personal choice and institutionalizes what should be individual moral decisions.  And once empowered under the guise of “compassion” government asserts a control over my life that is very difficult to reverse.  I’ll leave unexamined the gross inefficiency of government which makes it an exceptionally poor delivery system for such compassion as you describe. 

  5. As a Canadian with access to free healthcare (which is not free, of course; I pay for it through my taxes) this finely written article makes me very thoughtful. As in, I don’t know enough about libertarian philosophy and the alternatives it promulgates. We DO have a lot of work to do, humans, it seems to me . . . I also agree that this political debate is not about left and right; even in Canada, a place that accepts the notion and the practice of taxation, much of the political rhetoric is still about taxation and the tax-payer. That rhetoric usually doesn’t touch me–I don’t mind paying the taxes that provide me with free healthcare (which is not perfect, but is pretty decent), a sound education system, (usually) good roads and highways, law enforcement agencies. On the other hand, human systems have a tendency to get bigger and greedier, and it’s my money they’re using . . .

    The thing is (and I’d like to read an article about this) what would a libertarian society look like, really? How would we build it? In a country of 330 million, or even 33 million, how do you create a functioning infrastructure at all levels of society without taxes, or with very few taxes? that’s why I say I need to read more. As I imagine such a society, it seems either like an impossible utopia or a terrifying nightmare (which is being partly enacted already in the U.S., where how many millions of people live far below the poverty line and have no state assistance? is it 11 million? or 22 million ? I can’t remember the statistics, but the sheer number of the very poor–not just the regular poor–are extremely high.)

    • Thank you for your comment. I have been thinking about your excellent questions and rather than give a long answer, I think you may have inspired me to another article. Stay tuned.

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