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.