“Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man?” William Shakespeare
These weren’t the first words that came to mind when I heard the Supreme Court’s ruling on Obamacare. No, nothing that profound came immediately to mind. Unfortunately, the first phrase I uttered, while driving an 18 wheeler through Scranton, was unprintable. The second and much more memorable phrase I spoke was the one that immediately preceded the above quote from Henry VI, to wit: “The first thing we do, let’s kill all the lawyers.” Of course, I would never seriously council or consider such a thing for any jurist, having as I do infinitely more consideration for their wellbeing than some of them manifestly have for the wellbeing of the Constitution.
To be sure, there are some great people who practice law, and I’m happy to have many of them as friends. There are days, however, when I fear that 95 percent of lawyers out there are giving the remaining 5 percent a bad reputation. As we try to live and function in a society of ever increasing laws that do violence to our liberty; a society in which jurists have twisted and contorted the foundational law of the land into a grotesque and deformed thing, unrecognizable from its inception; a society whose legal system has metastasized into a colossal puzzle palace of technicalities and incomprehensible rules encoded in specialized gibberish that incorporates more Latin than a post Vatican II Catholic Mass; a society where justice is accidental to process; …we are entitled to ask how this madness came about?
How is it in America that one lawyer on the Supreme Court can serenely disarm states of their sovereignty one day, return two days later to rob the individual of his, and fashion himself as the guardian of the Court’s credibility? Since when did the Court’s credibility become synonymous with the number of nodding heads on the New York Times editorial board, or the number of obsequious kisses tendered by the MSNBC brain trust? Or is this yet another case of an ostensible conservative “growing” in office, asserting his independence from orthodoxy and thereby establishing the independence of the judiciary before a President who might as well be smiling and asking Chief Justice Roberts, “Who’s your daddy now?” The only thing independent about Roberts’ Rules in the last week of June 2012 is their relationship to the Constitution.
Do the good offices of John Roberts mind have any windows? To assert that regulating inactivity is on the one hand unconstitutional, but that taxing it as a means of coercion on the other hand is constitutional, is to ignore all practical implications. Coming through the back door to accomplish that which would be impermissible through the front is precisely the sort of sophistic nonsense that has done immense damage to the reputation of the legal profession in general and has now tarnished the credibility of the Supreme Court itself.
Even assuming that Obamacare is rendered obsolete by a Republican President and Congress next year, the highest court in the land has set a precedent that while the government may not order you to enter into a private contract, it may accomplish the same thing by penalizing you with taxes if you refuse. Precedent, after all, is as difficult a thing to exorcise as a civil servant, hence the doctrine of Stare Decisis (once screwed, always screwed). So while the Chief Justice might have thought himself clever for establishing concrete barriers to the Commerce Clause, he blew the doors off the taxing authority so that our Staries will be Decisised ad infinitum!
But don’t worry, some on our side advise. Friends whom I admire and whose opinions I respect, suggest that those of us who are appalled at this decision are over reacting. “Dave, with all due respect, I think you have a ‘no mandate no-how’ view that colors every opinion you now write on this,” writes a wonderful friend and a true gentleman. To which I respectfully reply that, yes, my refusal to be pushed around and bullied by an out of control government is yet another thing I have in common with Patrick Henry. To have my activity regulated, or a lawful tax levied on purchases or the earnings for which I have labored is one thing, and is constitutional in some cases. But to be ordered, by means of regulation or taxes and penalties, to enter into a private contract or to purchase a private product or service against my will, by virtue of my simple existence, is tyranny and I will not compromise with it, accommodate it, lend it the veneer of euphemism, nor counsel acquiescence to it. I will instead fight it, mock it, and scorn it with every means at my disposal.
“It is not our job to protect the people from the consequences of their political choices,” writes the Chief Justice in a sentence I found particularly galling. A police officer might as well tell a battered woman, “It’s not my job to protect you from the consequence of your marital choices.” Police officers understand that it is their job to enforce laws against domestic abuse. The failure to uphold the Constitution on the grounds that to do so would, “…protect the people from the consequences of their political choices,” is nothing less than a moral abdication of a sacred oath. Taken at face value, the statement would rubber stamp anything Congress passes. So much for preserving the independence of the judiciary.
And what are we to do when the government mandates our diet, or orders us to buy electric cars, or solar power for our homes under threat of a penalty or tax? Evidently, the only thing that supersedes an act of Congress is a signed letter from John Roberts, but how likely are we to obtain that? Pandora’s box is opened, and the only chance of a remedy is at the ballot box. Perhaps, in addition to repealing Obamacare, a Republican President and Congress can be persuaded to enact a law reversing the enormous taxing authority granted under this ruling even as various states have enacted laws limiting the damage wrought by the ruinous Kelo decision of a few years earlier.
So now, we perform triage. The economy is hemorrhaging, our allies lose faith even as our adversaries gain courage and comfort from our self-emasculation, while at home our liberty reels from one kick after another. That it all happens at the hands of a government that is supposed to serve the people is cruel irony indeed, but at the same time it provides us the means to recovery. These people must be voted out in November. We spoke with great resolve in 2010. They didn’t listen. We must roar in 2012. And we must hold the politicians accountable, for they only get away with what we allow when we return them to office.
Meanwhile, in an apparent effort to bolster the credibility of the Court in the salons of fashionable opinion, the Court has instead marginalized it’s credibility with the people who make America work and who have been steadfast against the usurpation of their liberty that Obamacare represented from the start. No worries. John Roberts may rest his clouded mind tonight, safe and secure in the knowledge that he is protected by the men and women of the Armed Forces who, for much less pay and at risk to their lives, have more of a commitment to their oath to defend the Constitution than he will ever understand.