In upholding the Affordable Care Act and its individual mandate as a function of Congress’s power to tax, all the Supreme Court has done is leave a political question to politics. The old-school Jeffersonian approach to limiting the power of government was not to hope that the Supreme Court would take a narrow view of constitutional powers — Jefferson didn’t try to get SCOTUS to strike down the Alien and Sedition Acts — but to turn to elections and the legislative process for relief. (Hence Jefferson and Madison’s state-level legislative Kentucky and Virginia resolution attempts and the eventual “Revolution of 1800″ in that year’s federal elections.) If Republicans are serious about their opposition to the individual mandate, which I very much doubt, they can repeal it the next time they have enough legislative power. It will be interesting to watch, though, how many Republicans use this ruling as an excuse to drop their opposition to the mandate because now it’s “constitutional.”
Obamacare Upheld — Should We Be Shocked?
31 Responses to Obamacare Upheld — Should We Be Shocked?
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Peter Fallow says:
Are tax provisions considered to be part of spending bills? If so, wouldn’t the mandate-as-a-tax have to start in the House of Representatives (as opposed to the Senate)?
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These are good questions, but who should answer them? Judicial activism is in the eye of the beholder: you can’t allow much scope for legitimate judicial review without opening the door to the illegitimate kind — both for good-faith reasons of different understandings and for bad-faith reasons of justices who twist the Constitution to get the results they want alike. Rather than depending on the court to provide correct answers, the people can — and should — give their own answers through Congress.
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tbraton says:
I’ll admit that I have been predicting since September 2009 that the individual mandate would be ruled unconstitutional as exceeding Congress’ authority to regulate interstate commerce under the Constitution. I’m trying to get a grasp on Chief Justice Roberts’ ruling that the individual mandate does not fall within Congress’ authority to regulate interstate commerce but that the penalty imposed for not following the individual mandate is justified because it falls within the “taxing power” of Congress. Does this mean that Congress may impose a penalty on those who don’t buy brocolli?
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Sheldon says:
tbraton, ah yes, the Fox News broccoli talking point, shamefully repeated by Scalia. Let me try this: “Requiring everyone to buy auto insurance means that government can require everyone to buy broccoli!” “Requiring companies to comply with environmental regulations means that goverment can require everyone to buy broccoli!” “Requiring warning labels on cigarette packages may require everyone to buy broccoli!” Am I getting through to you, tbraton?
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“tbraton, ah yes, the Fox News broccoli talking point, shamefully repeated by Scalia.”
Well, Sheldon, you may be surprised to learn that I never watch Fox News. The brocolli analogy is simply shorthand for describing the limitations the Constitution imposes on Congress to regulate “INTERSTATE COMMERCE.” The examples you cite, complying with environmental regulations and requiring warning labels on cigarette packages, whether wise or not, clearly fall within the power of Congress to regulate interstate commerce and seek to regulate actual activities of companies engaged in interstate commerce. A better example would have been a requirement (back in the days when Southerners from tobacco growing states had more political power than now) that all Americans buy and smoke cigarettes in order to help tobacco farmers.
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Brian says:
“It will be interesting to watch, though, how many Republicans use this ruling as an excuse to drop their opposition to the mandate because now it’s “constitutional.””
Such Republicans will almost certainly find themselves out of a job and back having to live in the real world among their constituents.If the mandate is a tax, it’s unambiguously a budgetary matter and can be repealed with just 51 votes, right?
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tbraton, requiring everyone to smoke is the same as requiring everyone to have health insurance? Really?
Well, no point in further back and forth. We have at last taken a large step in the direction of a health-care system that bears some relationship to the health-care needs of our people – unlike our current system, which doesn’t cover nearly enough people, costs way too much, often has inadequate health outcomes, and puts both doctors and patients in an adversarial relationship with insurance companies. RIP.
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breathnach says:
Sorry Sheldon, the decision does no such thing. The Court struck down the Medicaid extension as beyond the power of the Feds vis a vis the states.Therefore, further coverage of the poor is in limbo. This decision is a complete mishmash and utter confusion.
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The clues for today’s Supreme Court decision were actually found in the immigration and campaign finance decisions made by the court a few days ago. This is very much a nationalistic Supreme Court. This will be the Roberts Court’s legacy. It does not like the states going off to try and decide policy on its own. Thus it tells Montana it cannot write its own campaign finance laws; it tells Arizona it can’t write it’s own immigration laws and tells the states who filed suit against individual mandate sorry, the mandate is a tax and Congress can tax. End of discussion.
Like immigration, the issue goes back to Congress, which as we are reading on TAC, is utterly disfunctional right now, which is why the states have entered the realm of policy to decide on its own because they are tired of waiting.
The mandate is out there as “freedom” issue for those wishing to pursue it. But as Dan pointed out, many Republicans who once supported the mandate may just decide to drop the issue. Will Romney pick it up? Given that he shares a similar background as Roberts as pro-big business “conservative”, me thinks he won’t make the health care issue all that important to his campaign. Big business has wanted the politicians to do something about health care costs (which Romney tried to do in Massachusetts)for a long time and the mandate which forces persons to have health insurance was a way be able to steer business to them. Why change it? And given insurance company donations to the Romney campaign, I doubt if he will.
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“tbraton, requiring everyone to smoke is the same as requiring everyone to have health insurance? Really? ”
Well, Sheldon, you are certainly having a hard time grasping the concept. I should have said “buy cigarettes” and not “buy and smoke cigarettes.” I’m not sure how you distinguish between being forced to buy one thing and not another. Or are you one of those who think buying health insurance makes one healthy?
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jamie says:
Of course Congress can raise your taxes if you don’t buy broccoli, just like they can raise your taxes if you work harder, or they raise your taxes if you stay single, or they raise your taxes if you don’t incorporate.
Your defense is not voting for people who declare openly they want everyone to eat broccoli.
“If the mandate is a tax, it’s unambiguously a budgetary matter and can be repealed with just 51 votes, right?”
The mandate might qualify under the Byrd rule only if the CBO can say that it won’t increase the deficit beyond the fiscal year, which might be difficult, considering the CBO’s deficit baseline with the ACA in effect has always been significantly lower. However, Trent Lott once fired the senate parliamentarian because he found the 2001 tax cuts violated the Byrd rule on these grounds, so the anti-deficit rule pertaining to reconciliation doesn’t seem to be very enforceable.
It might only be possible to “zero-out” the mandate on a year by year basis, like the “doc fix,” and the Republicans might prefer that, since it’d give them a gun to point at their supporter’s heads every election year.
The insurance regulations, having no effect on revenues or outlays, cannot be repealed by reconciliation.
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tbraton, you force me to respond, so I will. The principle behind requiring everyone to buy health insurance is precisely the same as the principle requiring every driver to have auto insurance. You can figure out why this is so on your own.
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TomB says:
Here’s some background some might feel helpful:
The gov’t argued all along that in addition to being okay as a Commerce Clause exercise, or rather as an alternative, that the mandate in question was just a tax. (Imposed if a person refused to buy insurance.)
And at least some of the Courts upholding the mandate said okay to that I think.
One that stands out that said no and seems representative in how it said no did so under previous case law defining what a valid “tax” could be.
That previous case law in general said a tax has to be a “pecuniary burden … for the purpose of supporting government,” and be a revenue-raising matter “bearing a reasonable relation to the measure’s taxing purpose.”
Said the (Dist of Virginia Court) to this then: But the tax of the mandate is *expressly* called a “penalty,” and the mandate is specifically claimed by Congress to be supported *only* by the Commerce Clause. Moreover if everyone *does* buy insurance this “tax” will raise not a penny in revenue for the government. Plus other case law says the power to impose a penalty under Commerce Clause has been held to be less than that to impose one under the taxing power.
That Virginia District Court was thus clearly taken with the State of Virginia’s pithy argument that “The law is that Congress can tax under its taxing power that which it can’t regulate, but it can’t regulate through taxation that which it cannot otherwise regulate.”
That’s the essential background then I think, with it probably being the case that what the nub of the Chief Justice’s deciding opinion has done here has been to very possibly change (or you can use the words “degrade” or “destroy”) that pithy Virginia characterization of the prior law.
Whether this change is really effectuated by the Court in other cases remains to be seen. Much “law” the Court decrees turns out to be “law” that was applied by it only once in practice.
For what it’s worth (and speaking immodestly as one who called the Supreme’s decision here spot on—in print elsewhere if not also in addition here), I have to say that I was a little surprised at fewer people also calling it right. Dodging the bullet here by calling it a tax just made sense in any number of ways:
While the mandate was a brand-new extension of the CC’s power, it isn’t *that* big of an extension from it’s previously valid reach to be able to forbid people from growing and consuming their own wheat, not to mention other things. Just a few years ago, for instance, Judge Scalia found the Commerce Clause’s reach sufficient to ban you from growing a few marijuana plants in your basement for your own use.
And then each of the Justices had to look at striking down what is probably one of the biggest social welfare measures since the New Deal on this ground, with that measure having been long debated and extensively voted on in Congress.
Plus, it is with deft little maneuvers such as seeing this as a tax case that lots and lots of Justices and lots and lot of Courts in the past have dodged their tough questions. Indeed, dodge them in even more clearly dodgy ways, such as simply denying or pretending that certain facts have or have not been established or etc.
Sort of like … there’s only one way of throwing a snowball accurately at another, but there’s an almost innumerable number of ways to dodge it.
(I suppose I shouldn’t have said all this given that it detracts from my brilliance in calling it correctly, but there it is, damnit….)
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The same forces tried to have struck down all manner of New Deal programs without which Middle America, rural America and so on could not possibly live now. This is just another one. When even Chief Justice John Roberts, Dubya’s nominee, not only says that this is constitutional, but goes out of his way to organize a majority on the Bench to that effect; and when millions of GOP primary voters, of all people, nominate Mitt Romney, of all people, in the midst of this dispute; then it really is all over for the other side.
Why is anyone surprised at this ruling? Supreme Court Justices do sometimes have prior judicial experience, but they are party machine appointees who would never let ideological zeal overcome tactical sense. Strike down the other lot’s flagship policy, and they will do the same to yours once the opportunity presents itself. Heaven and earth were always going to be moved in order to rule that, whatever else it might be, ObamaCare was not unconstitutional. So it has been.
Romney has no meaningful intention of repealing something that he himself pretty much invented, anyway. His nomination confirms that, for all the noise from Tea Parties and what have you, the thing that still purports to be conservatism in post-Dubya America is in reality a very small minority concern even among registered Republicans. The result of the primary process speaks for itself. The older school of Eisenhower Republicans will have two candidates out of two in November. Call it ObamaCare, call it RomneyCare, call it anything you like: it is a classic piece of Eisenhower-Nixon-Ford-Bush I Republicanism. America could do with a great deal more such pieces. And the world could do with such an America.
Give it five years – and regardless of the results in November, it will still be there in five years’ time – and Americans will wonder how they ever got by without it, if they are still thinking about it at all. The only reform demanded by the public, or suggested by anyone beyond the outermost fringe, will be a move to the Canadian single-payer system (basically, the British NHS) advocated by Donald Trump, because it would be so much less bureaucratic while retaining the principle of universal coverage paid for out of general taxation. Assent to that principle will be as universal as the coverage, within five years.
This is also a pro-life victory. A ban on abortion funding was already written into the original legislation, but if this is a tax rather than a commercial purchase then the provisions of the Hyde Amendment also apply, putting the belt and braces on it. Precisely because this is now recognized as taxation, the contraceptive mandate will also almost certainly either be struck down in the courts or legislated away in order to preempt any such action.
But we had the NHS over here a generation before either the Pill or abortion, and they have much tighter abortion laws on much of the Continent alongside, indeed built into, universal public healthcare. So all of that was and is peripheral, if anything, to the principle. And the principle has now been established.
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Jim Dooley says:
The car insurance argument makes a poor fit: government legislates the requirement for car insurance not for everyone, only for all drivers of cars. There is no penalty for opting out unless one happens to be caught driving a car. It would be absurd to require every one over 16 and a half to buy car insurance because they will surely drive a car someday or pay a penalty to the IRS, or the state equivalent. It is this penalty on the non-driver that Roberts would have us call a tax.
I am most interested in seeing what happens out here in the real world when the TSA wing of the IRS ventures forth to enforce compliance on what promises to be a sizable crop of tax evaders – the great majority of whom will have little ability to pay. Oh well -what’s good for the bureaucracies is good for America, isn’t it. -
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cka2nd says:
Sean Scallon:
Is it the Roberts Court that is nationalistic or John Roberts himself. In all three cases, AZ immigration, MT caampaign finance and Obamacare, Roberts sided with the federal government, while the rest of the Court’s members sometimes sided with the feds (conservatives on MT) and sometimes with the states (liberals on AZ).
Does anyone know off the top of your head if Roberts has consistently taken the “nationalist” side against the states? I’ve read somewhere that the Court has tended to side with the police against civilians, corporations against workers and governments against citizens, but I’m not sure whether it, or its factions or members, have done so with the federal government or nationwide standards against state governments or state-determined standards.
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“Remember though, we must vote Mitt Romney so he can appoint justices like Roberts to overturn this disaster.”
I cannot remember how many times people said this when pushing for Mitt Romney and how often I told them what a pathetic idea this was. Read the Brutus letters in the Anti-federalist papers. He was right on about what is happening now.
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Matt says:
Car insurance laws are also state creations. I know liberals can’t tell the difference between the states and the feds, but for everyone else that’s all the distinction that is needed.
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“I’ve read somewhere that the Court has tended to side with the police against civilians, corporations against workers and governments against citizens.”
To me it’s all the same bias in favor of bigness.
“what have you, the thing that still purports to be conservatism in post-Dubya America is in reality a very small minority concern even among registered Republicans.”
I’d like to disagree. I don’t believe the opposition to Romney constituted a minority in the Republican Party. But a majority means nothing when it is split into itsy-bitsy pieces supporting 20 different candidates, some of whom ran less-than-serious campaigns who simply wasted time and money instead of finding one person whom conservative persons could agree on to take on Romney in a one-on-one showdown. Romney won as the Bushes and the Doles and the McCains won their nominations – the split opposition. And until conservatives can overcome their own differences and figure out what they really stand for instead of propaganda, then nothing going to change in 2016 (Jeb Bush) or beyond.
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Eric says:
I disagree with Larison that that “all the Supreme Court has done is leave a political question to politics.”
The Court did not declare the dispute over PPACA as a nonjusticiable political question but issued a judicial ruling that establishes an interpretation of the Constitution that will be treated as a binding precedent. The effect of this precedent can be visualized as a smirking Nancy Pelosi stamping on our liberties forever. Yes, I am serious.
The Court has, once again, abandoned its role in upholding the constitutional limits on the power of Congress. The purpose of the Constitution was not to let politics decide what powers Congress can exercise. The purpose was to define congressional powers so that the political process could not be used to enable Congress to usurp powers not delegated by the Constitution. On this understanding, the Supreme Court is supposed to function, as the Federalists promised (perhaps with their fingers crossed?), as one of the “bulwarks of a limited Constitution against legislative encroachments”. The duty of the Court is “to declare all acts contrary to the manifest tenor of the Constitution void”, the Court has to “pronounce legislative acts void” if they are “contrary to the Constitution” because “No legislative act” that is “contrary to the Constitution, can be valid.” If the Court does not serve this function, “all the reservations of particular rights or privileges would amount to nothing.” (quotes from Federalist 78).
The purpose of the Constitution is to prevent politics from deciding what powers Congress can enact; to prevent politics from enlarging congressional power beyond the strict limits of the Constitution. According to Jefferson, the Constitution delegates only specific, defined powers to Congress and if Congress exercises any power not delegated, then the congressional act is an usurpation, and not law, but unauthoritative, void, and of no force. The Constitution is a set of chains that bind the Federal Government down from mischief by establishing strict and enforceable limits on powers. As noted in Federalist 78, the Supreme Court has a role in enforcing constitutional limits.
At issue is whether the Court has correctly interpreted the limited powers delegated to the Federal Government and enforced these limits in order to restrain the usurpation of undelegated powers. The effect of the Court’s ruling is that the taxing power, which is a power to raise revenue to implement the enumerated powers delegated to Congress, becomes by judicial fiat the basis for Congress to exercise any power it wants. The taxing power, under this decision, is transformed from a limited power restricted to specific delegated powers into a plenary power that has no limit. Whatever a majority in Congress wants to do, it can do, as long as a tax is involved. Based on this decision, the tax does not even have to be in the form of a tax, but can be a penalty.
The decision is another failure of the Supreme Court to uphold the strict limits of the Constitution. The Court misinterprets provisions of the Constitution, transforming strict limits on power into unlimited grants of discretionary power, allowing Congress to, in Jefferson’s words, “take possession of a boundless field of power, no longer susceptible of any definition.”
If constitutional limits on the power of the Federal Government are not enforced, then its power is only limited by its discretion (in practice, the discretion of whatever majority rules in Congress). The inevitable result is that the Federal Government will exercise all powers whatsoever, assuming power to bind the States and people in all cases whatsoever. In short, the Constitution means nothing. The States have no reserved powers and the people have no reserved liberties that the Constitution protects from Congress. You have no liberties, merely temporary privileges granted by a majority and that can be revoked at their discretion.
The Supreme Court’s decision is not a surprise in that it simply affirms the ideology of the political elites in America (including the two dominant political parties): a consolidating nationalism that centralizes all power whatsoever in the Federal Government, to be exercised at its discretion. We should not be surprised that five government appointed lawyers upheld the dominant nationalist ideology that places no limit on the centralization of power in the Federal Government.
Is the only response to the Court’s ruling that of relying on “elections and the legislative process for relief”? That is, are we to put our trust in the very political process that enabled Obamacare to be enacted into law? It is an absurd proposition. Relying on the political process to restrain Congress within constitutional limits is to agree on principle that the only valid limit on the Federal Government’s power is the political process itself, which means that, in principle and in practice, the power of Congress is unlimited.
A Jeffersonian approach would recognize that the political realities of contemporary America are not the political realities of 1800. There is no national majority of voters in America that are constitutional republicans in the Jeffersonian sense and that can be mobilized into an enduring and effective political coalition that can dominate federal elections. The “Revolution of 1800” will not be repeated.
Given the reality of our political situation, what would Jefferson’s prescriptions be? There are two options: nullification and secession. In short: organized State resistance within the current political system to restore constitutional limits on the power of Congress, or separation from a political order that has become an abject failure.
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@ Eric:
I am absolutely with you as to your description of what the constitution meant originally and what really amounts to a reversal of its form from that of being a document of enumeration to one (given the Bill of Rights) of damned scarce limitation.
But how do you address the idea that … time and history has really just passed the Framer’s vision by as no longer realistic (if it’s even still workable in our modern, crowded society?
I mean, if you really go back to the original understanding Social Security would be gone, as would Medicare and Medicaid, as would … geez, maybe 1/2 or more of all the Federal government.
So, given the incredible, and undeniable strength of *desire* for those things amongst lots of lots of our people, well, can you really imagine trying to get them to go backwards that far? And “give up” all that? In exchange for the soothing idea that “don’t worry, under the “old” constitution we’ve re-vivified your State can do all that and more”?
Indeed isn’t the likely response to same “well if the States could and should do it anyway what’s the difference?”
And look at the form governments now take pretty solidly all around the world: Are there *any* peoples left who resolutely want to live in the far more libertarian world of our “old” constitution?
I sure wish there were, but don’t you have to admit that the evidence is that not just in America but around the world people now just *want* a potentially very powerful central government, and a very extensive social welfare network?
That … there’s good reason to suggest that the “old” constitution would never have been written as it was if it had been drafted in anywhere near the modern situation where agrarianism is now a footnote to an immensely large, industrialized, urban population?
And so, again, do you really think there’s *any* hope, no matter how much opportunity you and I and others had to lobby the country in favor of it, that they would–to *any* significant degree—go “back”?
I sure wish I could say yes but I don’t believe it anymore, although regardless I’d sure like to hear the ideas of you and others on the question.
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TomB expressed numerous questions, which I’ll respond to in several comments.
TomB wrote: “I am absolutely with you as to your description of what the constitution meant originally and what really amounts to a reversal of its form from that of being a document of enumeration to one (given the Bill of Rights) of damned scarce limitation.
But how do you address the idea that … time and history has really just passed the Framer’s vision by as no longer realistic (if it’s even still workable in our modern, crowded society?”There are two issues raised by your question: First, a philosophical one regarding the nature of liberty and of government; and second, a constitutional one regarding how changes in the power of the Federal Government are to be enacted.
Regarding the first issue: The question is whether or not the limitations on the power of the Federal Government are based on the innate liberties of men. That is, are liberties inherent in human nature and thus entitled to constitutional protection at all times (regardless of socio-economic changes over time), or are liberties merely transitory social conventions that are not constitutionally binding? To answer this question within the American political tradition, we should refer to the Declaration of Independence. The Declaration states that men “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men” and that when any “Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government” that will “effect their Safety and Happiness.” The assumption in the Declaration is that certain rights are innate based on the nature of man, that these rights cannot be infringed upon (they are “unalienable”, they cannot be given or taken away), and that the purpose of Government is to secure these rights. The Declaration assumes that fundamental rights are constant and do not change over time because they are rooted in a human nature that does not change. Government has no legitimacy and possesses no lawful authority if it violates these innate rights.
If rights are inherent in human nature, they do not change simply because social conditions change. Time and history do not change the substance of the rights inherent in human nature, nor do they change the criteria for lawful governmental authority. Regardless of how “modern” or “crowded” society becomes, the rights inherent in human nature are still authoritative and binding on the political order. If we reject the doctrine that human liberties establish binding and authoritative limitations on government power, we reject the philosophical foundation of American constitutional order.
Regarding the second issue: even if one assumes that fundamental human liberties and the constitutional limitations intended to secure these liberties inevitably and necessarily change over time as socio-economic conditions change, the only lawful means to change these limitations and increase the power of the Federal Government is through the amendment process established in the Constitution. There is no clause in the Constitution granting the Federal Government plenary authority to expand its powers at its discretion if it determines that socio-economic conditions necessitate such adjustment. The only constitutional means to expand the power of the Federal Government (an expansion which necessarily reduces the liberty of the people and the reserved powers of the States) is through the amendment process. The purpose of the amendment process was to ensure the consent of the several States before centralizing additional powers in the Federal Government.
Most political centralization and national welfare legislation has not occurred through amendment, but through legislative and judicial fiat. The 18th amendment, ratified in 1919, was the last expansion of the Federal Government’s power via constitutional amendment. This demonstrates that America is governed on the assumption that the Federal Government possesses plenary authority to expand its powers at its discretion. In short, the American political system possesses neither genuine constitutional government nor authentic federalism.
The governing ideology of the American political system is that social changes over time require changes in the interpretation of the Constitution in order to facilitate centralization of power in the Federal Government. This has been so since at least FDR. The Constitution was written in horse-and-buggy times, and we cannot apply the horse-and-buggy understanding of the Constitution to modern problems, because the complexities of modern life have made this understanding obsolete.
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TomB wrote: “I mean, if you really go back to the original understanding Social Security would be gone, as would Medicare and Medicaid, as would … geez, maybe 1/2 or more of all the Federal government.
So, given the incredible, and undeniable strength of *desire* for those things amongst lots of lots of our people, well, can you really imagine trying to get them to go backwards that far? And “give up” all that? In exchange for the soothing idea that “don’t worry, under the “old” constitution we’ve re-vivified your State can do all that and more”?
Indeed isn’t the likely response to same “well if the States could and should do it anyway what’s the difference?”I agree that under a correct interpretation of the Constitution – one rooted in the understanding of the Constitution by those States that ratified the document – much of what the Federal Government does is unconstitutional.
I also agree that a national majority of Americans would not willingly choose to reverse the centralization of power in the Federal Government with its vast apparatus of social welfare legislation.
If we restored constitutional limitations on the Federal Government, it is possible that each State would enact the same social welfare programs enacted by the Federal Government. This is not the key issue. The key issue is that restoring constitutional limitations would preserve each State’s ability to determine whether or not to enact these programs. The important outcome would be preserving each State’s right of self-government, a right which was supposed to be protected under the Constitution. The fundamental issue is not whether the States would enact the same Federal legislation that we have today, but whether each State has the ability to choose whether or not to enact the legislation. This is a critical distinction. If someone approaches me on the street and forcibly takes my money, that is a violation of my rights and a crime. If I voluntarily give my money to this person, it is charity. The outcome under both scenarios – a transfer of income from myself to another person– is the same; but the means of reaching the outcome – forcible theft versus voluntary charity – is vastly different.
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TomB wrote: “That … there’s good reason to suggest that the “old” constitution would never have been written as it was if it had been drafted in anywhere near the modern situation where agrarianism is now a footnote to an immensely large, industrialized, urban population?”
We shouldn’t assume that an economic condition – the dominance of agrarianism – determined the development of the Constitution, or that constitutional limitations on the Federal Government are made obsolete by changing economic and social conditions.
First of all, this is essentially a variant of Marxist ideology. It assumes that the economic conditions of a society determine its political institutions. If we accept this ideology, we may as well assert that proximity to manure on a regular basis determines a preference for constitutionally limited government, and that the prevalence of internal combustion engines determines a preference for redistribution of income.
Second, it confuses the core issue, which is not one of economic conditions, but one of power. Specifically, should political power be centralized and used to actively intervene in the economy? Such centralization of power and government intervention has been advocated and established throughout history in various societies, including in predominantly agrarian societies long before modern industrialization.
Alexis de Tocqueville observed that “Everywhere men are leaving behind the liberty of the Middle Ages, not to enter a modern brand of liberty, but to return to the ancient despotism; for centralization is nothing else than an up-to-date version of the administration seen in the Roman empire.” Tocqueville correctly understood that modern centralization is simply another version of ancient despotism. What is common to modern centralization and ancient despotism is that they are both rooted in a corrupt will to power.
The key factor is not economic conditions, but human nature. Since human nature is corrupt (the Christian doctrine of original sin), men will seek to centralize power for their own benefit and aggrandizement at the expense of others. The attempt to centralize power is a constant throughout human history; it is determined by human nature, and not by economic conditions. The argument that economic conditions necessitate political centralization and economic intervention is simply an ideological assertion intended to legitimize centralization and prevent questions that could threaten the legitimacy of the corrupt will to power that motivates centralization.
The Constitution was written as it was because of the dominant philosophy among Americans at the time regarding the nature of liberty and of government. It is the loss of this philosophical understanding, and its replacement with statist ideology, that has driven centralization. If the Constitution were to be drafted today, it would reflect the dominant ideology of statist centralization. It would do so not because economic conditions have changed, but because the dominant intellectual ideas have changed.
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TomB wrote: “And so, again, do you really think there’s *any* hope, no matter how much opportunity you and I and others had to lobby the country in favor of it, that they would–to *any* significant degree—go “back”?”
McCarthy’s comment (I mistakenly attributed it to Mr. Larison, my apologies) was that constitutional limitations should be determined through the political process – “turn to elections and the legislative process for relief”. I disagree. If every constitutional limit on power is subject to the political process (the exact opposite of what the Constitution was supposed to achieve), and we have to, in your words, lobby the country in favor of enacting constitutional limitations, then I agree that we will never convince a national majority to subject itself to constitutional limitations. We cannot restore a proper constitutional order by first rejecting the validity and authority of existing constitutional limitations, then enabling a majority to enact any power it wants, and finally go begging this majority to willingly give up the powers they have assumed. If you validate the centralization of power as legitimate under the Constitution, a majority will claim this power and will not voluntarily relinquish this power.
If we accept the ratifiers’ understanding of the Constitution, then the people of the States are not obligated to obey legislative acts that violate the Constitution; rather, they have an inherent right to resist such legislation through interposition and nullification. If we accept the assumptions of the Declaration of Independence and the principles of the American Revolution, the people of each State retain the inherent right to separate from the United States and establish themselves as a free, independent and sovereign State, or join other States in a new confederation. In a few States there may be majorities that would rather secede from a corrupt political order that is based on the institutionalized violation of liberties than tamely submit to such a degrading system of government.
The question is whether the original constitutional order intended by the ratification of the Constitution can be recovered within the current political system of the United States (that is, utilize the political process to restore constitutional limitations), or whether this system has become so degraded and corrupt that the only feasible means for a State to recover the constitutional order and the self-government the Constitution was supposed to protect is through secession. If the people of some of the States are willing to exercise the powers of nullification, interposition and secession, then it may be possible for them to re-establish some of the constitutional limitations on power. This would simply represent the principle of the American revolution that “the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.”
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Hi Eric:
Gee it sure was interesting to read your very wide-ranging responses to my post. But let me cut to what seems to me is the present nub of the matter, perhaps best done by addressing what you wrote as follows:
“If we restored constitutional limitations on the Federal Government, it is possible that each State would enact the same social welfare programs enacted by the Federal Government. This is not the key issue. The key issue is that restoring constitutional limitations would preserve each State’s ability to determine whether or not to enact these programs….”
[And:]
“If we accept the ratifiers’ understanding of the Constitution, then the people of the States are not obligated to obey legislative acts that violate the Constitution; rather, they have an inherent right to resist such legislation through interposition and nullification … [and] to separate from the United States….”
Well, I would observe in response to these reasonably beliefs, doesn’t the fact that “the people of the States” have *not,* in our modern times, in any clear, discrete, determined way, planted their feet and tried to “nullify or separate from the United States” tell us something?
That, “the people of the States” are at least *reasonably* content with what the Federal government has done, or believe that even if they aren’t that their own State would do the same thing anyway?
I mean, Eric, at *some* point it seems to me we have to face the fact that “our” view of the Constitution just isn’t in line with what the general public likes well enough to support, don’t we?
And given that this seems to be the case the question then becomes what does one do? Either work to see as much of the *remnant* of the Constitution remains in force, or just renounce the system we have right now in toto, and pay no devotion anymore the Constitution ourselves.
I can see either as being reasonable sometimes, I’ll admit, but look at us here: We’re still “constitutionalists” *enough* so that we’re autopsying Roberts decision to see just how much fidelity it *did* pay to the document.
It just isn’t either time that the public is going to change its view of the Constitution to something closer to that of the Framers, *or* to give up on the document.
As John Marshall noted, it *is* a Constitution here. And in many many respects even after 200+ years it *still* is strong enough to command the wide devotion of this now immense country. That’s saying something. That’s saying something about flexibility, modesty, durability, and on and on. In undeniable historical terms that may well make our own musings disagreeing with what has happened look feeble.
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Tom – Sorry for the wide-ranging responses, they reflect the magnitude of my intellectual disgust with the Court’s decision.
I will briefly address your two main points.
First: “doesn’t the fact that “the people of the States” have *not,* in our modern times, in any clear, discrete, determined way, planted their feet and tried to “nullify or separate from the United States” tell us something?”
It only tells us it hasn’t happened since 1866. It doesn’t tell us that it cannot or will not happen in the future. There are secession movements in various states – see Vermont Commons (www.vtcommons.org) and Bill Kauffman’s wonderful book, Bye Bye Miss American Empire (http://billkauffman.net/books). There are organizations like the Tenth Amendment Center that advocate nullification, and do an excellent job developing model legislation and tracking nullification efforts. In short – secession and nullification efforts exist. They are growing. The conditions motivating these movements are intensifying. Given a precipitating event – for example, the spiraling debt and monetary inflation of the US government leading to what Ludwig von Mises called a crack up boom – anything is possible.
Second: “we have to face the fact that “our” view of the Constitution just isn’t in line with what the general public likes …..the question then becomes what does one do? Either work to see as much of the *remnant* of the Constitution remains in force, or just renounce the system we have right now in toto, and pay no devotion anymore the Constitution ourselves.”
The practical question you highlight is: if the original understanding of the Constitution is essentially dead, what do we do?
There are three general responses:
1. Resignation: recognize that the Constitution is dead and will not be restored. Waste no more time studying the Constitution, discussing how to restore it, and engaging in political action to achieve this goal.
2. Reform: continue to believe that reform is possible and the original Constitution, or at least parts of it, can be restored, if only marginally and incrementally over time. Engage in political discussion, education and action.
3. Separation: recognize that the Constitution is dead and reform is virtually impossible. The only way to restore liberty and constitutional self-government is through secession. Find a local secession-minded group and work to achieve this goal.Each of these is an equally valid response to the disorder of our time. The one you choose will be based on your particular circumstances and temperament. I will simply note Eric Voegelin’s advice: “Nobody is obliged to participate in the crisis of his time. He can do something else.”
Shouldn’t Congress have to vote on it again? As a tax?