Liddick: Supreme Court decision undermines the republic
July 2, 2012
“Remember, democracy never lasts long. It soon wastes, exhausts and murders itself.” -John Adams
It was a good run while it lasted. And though tomorrow is the 236th anniversary of the signing of the Declaration of Independence – the clarion call of liberty that gave this nation birth – rather than the later signings that gave it the Federal form we knew until last Thursday, this seems an appropriate moment to consider what we have lost, where we are now, and what we must do to safeguard our freedoms against a government freed from any practical restraint.
On Thursday, June 28, 2012, after several months of deliberation, five Supreme Court justices confirmed our Founders’ worst fear: Their elaborate construction, the “Machine that would go of itself,” had a limited shelf life. They also fulfilled the predictions of the Anti-Federalists: a democratic, federal republic was an experiment doomed to failure, because self-government is hard, unrelenting work that demands an educated, concerned, dedicated citizenry. America – even the America of the late 18th century – was too big, too diverse and too riven by what we would call “self-interested partisanship” to work for long. This worry was behind Benjamin Franklin’s famous response to a question about the form of government on which the Founders had settled after much debate: “A Republic, madam,” he replied, “if you can keep it.” Unfortunately, we couldn’t.
It’s hard to pinpoint when the rot began. Perhaps in 1905, with the Swift and Company case, which established the “stream of commerce” doctrine that allowed a very loose definition of the interstate commerce Congress is allowed to regulate. The trend accelerated with the World War II-era Wickard v. Filburn decision permitting the increasingly flexible Commerce Clause of the Constitution to be stretched like Gumby over production and consumption taking place entirely within one household. In the Obamacare decision, lawyers and Justices alike decided the Commerce Clause would not serve, so they turned to the power to tax – a clever turn, but poisonous.
To understand why, consider the vision of those who created our Constitution – their fears about government, and the plans they drew in response. They were chiefly concerned with the power of a centralized government to interfere in the daily lives of citizens: a government strong enough to grant privileges and benefits to specific classes or individuals is strong enough to punish or dispossess them. Eventually it would use these abilities to arrogate all power to itself.
Out of their concern rose our federal system: a central government whose absolute authority over a narrow range of issues was strictly and explicitly limited. In every other area of endeavor, individual states or the people themselves were sovereign. This division of power among the disparate levels of government, as well as the strictly limited authority of the federal government, worked well for almost two centuries. Last Thursday, five US Supreme Court justices stabbed it in the heart and left it dead in the gutter. No amount of sophistry or verbal obfuscation can now revive it, or obscure their bloody work.
It doesn’t matter whether one agrees with the Chief Justice that the individual mandate in the Affordable Care Act is a tax, or not: One may call a handsaw a hawk, but it still can’t fly. Regardless of the verbal misdirection, Obamacare’s individual mandate is an unprecedented extension of the ability of the federal government to meddle.
Want proof? When Solicitor General Donald Verrilli was repeatedly asked by Chief Justice Roberts if he could define “any limiting principle” to Federal power if Obamacare passed muster, he finally said he couldn’t. Because there is none: government that can compel a citizen to purchase health insurance on pain of penalty can order him to do anything: eat broccoli, buy a Chevy Volt, join a union. Somewhere, there’s some theoretical connection with the interstate commerce Congress is allowed to “regulate,” or with the power to tax. And if neither will serve, another justification will be found. Such is the monomania of those who lust to control their subjects.
This brave new world demands conservative legislators. Since we cannot now rely on the discipline of divided government, we must act to limit the expansive tendencies of those who do the nation’s business. They must also be deprived of funds to wreak further mischief. If conservative majorities are prudent, they may stave off collapse a few more decades.
But not forever. Inevitably, the structure will be too decrepit to withstand the demands of those who see it only as a source of benefits. It will totter, and fall. What will replace it is unclear, but we should remember: Its death will be a suicide. So enjoy the festivities tomorrow. Be merry. Eat barbecued meat. Drink up. Lots.
While you can.
Summit County resident Morgan Liddick pens a Tuesday column. E-mail him at firstname.lastname@example.org.