Millions of Americans were greatly disappointed this morning by the upholding of the Patient Protection & Affordable Care Act, along with its individual mandate provision, by the Supreme Court. Shortly after 10am, the decision was handed down that although the Commerce Clause would not permit the requirement by the federal government of individuals to purchase health insurance, nor the exaction of punitive fines for not purchasing said insurance, the tax clause of the Constitution would indeed permit the government to forcibly exact payment from private citizens in much the same way. Though legal scholars throughout the nation are currently poring through the several hundred page ruling to understand its reasoning and the precedent that it sets, their commentary likely to keep flooding in for weeks and months to come, three points come into sharp contrast before the ink on the ruling is even dry: the immorality of taxation, the inadequacy of the Constitution of the United States to defend the rights of its citizens in its current form, the failure of modern conservatism.
It will be of little surprise to those who understand the nature of taxation—any taxation—that what is imposed under the PPACA, or ObamaCare, is well within its natural purview. That is to say, all taxes, no matter their purpose or means of obtainment, are acts of force by government against its citizens, as they exist and are extorted under threat of imprisonment. If you do not believe me, try not paying them and see how long that goes well for you. Naturally, in our modern society, taxes are a fact of life with which we must contend and due to the abuses of history we find ourselves under a system based largely upon them. To be clear, I do not advocate the repeal of all taxes or the institution of a system of alternative and voluntary payments now, next year, in the next ten years, or at any definite point in time. I merely view it as the long-term goal of a proper society and an ideal. In the interim, the forcible nature of taxes should be recognized by citizens and government officials (we can dream!) and any tax should be paid and enforced with the appropriate feelings of skepticism and grudge.
The fact that this particular tax happens to be placed on one’s refusal to participate in a system is repugnant, but in the end just a new extreme of the immoral practice of forcibly acquiring revenue from private citizens. Aside from that distinction, there is little about the bill’s funding that makes it particularly different from other massive social welfare programs that consume a large portion of your tax dollar: Social Security, Medicare, Medicaid. Funds are acquired from you by law to pay for a universal and compulsory social program. We’ve heard this story before.
The glimmer of hope, the flower of light in a field of darkness, is that this decision may lead conservatives a step closer to recognizing the infinite license that taxation gives government over every aspect of their lives. With the hope that the bill can still someday be repealed, should it have taught conservatives the ills of endorsing massive social welfare programs and the dangerous breadth of the Tax Clause, then this may well have been a worthy exercise and the nation may yet have become one in which two sides argue for freedom versus controls, individual rights versus collectivism, capitalism versus socialism, rather than the obscene spectacle of two gangs vying for the patronage of a population by offering ever more goods and services purchased with other people’s money.
Though the Tax Clause caveat is formidable, one silver lining to the Court’s ruling is its clarification that the Commerce Clause does not afford Congress the right to compel Americans to purchase a good or service. Within the context of this law, it changes little, as a vote to uphold is a vote to uphold. However, with respect to future laws, upholding ObamaCare on the basis of the Commerce Clause would have been far more devastating a precedent. Many will still question its interpretation as a tax and I lack the necessary legal scholarship to address the issue directly without further research, but on a prima facie consideration, I believe the unfortunate fact to be that the Court’s assertion on these grounds was well grounded.
If it can be asserted that a measure is both Constitutional and morally offensive, what conclusion can be drawn? One that will be rather unpalatable to those on the right who invoke the Constitution as the be-all, end-all doctrine on proper governance. To be clear: it is my view that the Constitution of the United States is the single most moral document ever to be authored in the history of humankind. That said, it is still imperfect. The framers of the Constitution could not have conceived of the myriad ways in which future generations would take advantage of its every opening and ambiguity, caulking every fracture with statism and collectivism. They could not foresee the contortions it would endure over time as legislators of future eras twisted and bent it to suit their every political whim or, worse, that of the mob they served. In this sense, perhaps the Constitution’s most superlative virtue is endurance and a will to survive as passionate and tireless as that of the men who framed it.
Crucially, the Constitution has not survived two hundred and thirty eight years, secessions, a Civil War, and countless political and social conflicts by remaining the same. To the contrary, it survives by its ability to retain, fully intact, the necessary fundamentals of government while allowing for necessary alterations. If conservatives who fervently invoke the Constitution to their cause do so in a spirit of intrinsicism, with the belief in the Constitution as an ultimate ideal to be upheld as-is in the spirit of convention and blind tradition-worship, then the ruling today is merely the beginning of a long series of tragedies that they can anticipate. However, if they invoke it for its ability to promote their lives, liberty, and property, to protect against oppression in the name of individual rights, then they must view it as it was conceived: as a living document, subject to scrutiny and amendment when necessary, deserving of respect but also cautious reconsideration when its occasional deviations from principle, so seemingly innocuous in their original language—taxation, eminent domain, regulation of interstate commerce, etc—result in disastrous consequences.
Conservatives have much to consider in the wake of this decision and as ObamaCare goes forward. Whether they are ultimately able to repeal it or not, they can honestly say that they will have done much to oppose it as a matter of policy. But have they opposed it in principle, or have they been hamstrung by an implicit reliance on the morality of the past? Too much of the commentary of leading Republicans has centered upon the bill’s affordability and its effects on the national debt, pragmatic considerations that, while valid, evade any moral reproach of a system by which government compels men to purchase goods and services against their will. They have avoided the moral argument because morality is a field in which they lack answers. They keep the discussion to the base level of particular concretes and attempt to supplant ethics with accounting, right and wrong with surpluses and deficits, virtue with frugality.
The tragedy is that it is too late for all but some of the nation’s lawmakers to discover the principles of individual rights and capitalism. The years and decades that many of them spent learning altruism and subjectivism in education, being told that they live in an uncertain world without objective principles and that they survive there at the discretion of a society which they serve, are supplanted by pragmatism in business and public service, whereby they scorn the uncertainty of their youth with the belief that they can choose their principles, any principles which they might find convenient and efficient for the present moment, and as quickly dispose of them should it prove convenient. As politicians, they change their beliefs with the popular trends—not always in a disingenuous way, but rather with the belief that what is popular is practical for the moment. They are forever subject to popular whim without reference to principles.
Fortunately, that popular trend on the Right for the last three years has been in the direction of freedom and individual rights. Surely there are some representatives with the proper moral grounding, but the voting records of many Republicans before and after the 2008 and, particularly, 2010 elections will show a distinctive swing in the direction of small government. Without continued pressure from a population that demands its rights and vies for them at every turn, the pendulum is destined to swing back, standards will be lowered, and monitoring lax. The next step in the struggle against violations such as ObamaCare will be the November elections and Americans will continue to gain their freedom by adhering not to party lines, but to principles and by repeating to their representatives the message of 2010: freedom… or else.
For further analysis of the Supreme Court’s ObamaCare ruling, see Brian Underwood’s take here.