Richard Moore

Posted by Richard Moore, July 6, 2012

June 28, 2012, will infamously go down in history as the day they drove Old Glory down.

They, of course, would be the five justices of the United States Supreme Court who voted to uphold the federal health-care law known as ObamaCare. Most notably, Chief Justice John Roberts defected to the liberal side and delivered the eviscerating belly stab to an unsuspecting U.S. Constitution.

And down it went, and Old Glory, too, and with them one of the key principles of American Exceptionalism – our unique devotion to limited government and individual liberty.

There will no doubt be vast consequences because of this decision. Not least, prepare for a veritable torrent of taxes to gush forth anytime the federal government wants us to do something, or not do something. Which, these days, is all the time.

It is said often enough that President Obama has worked diligently to transform America into just another European statist society. That is true. But, it can now be said, with one ruling Mr. Roberts catapulted the nation further in that direction than Mr. Obama was able to do in nearly four years.

Mr. Roberts’ ruling was deformed and afflicted in its reasoning, a conclusion searching for a rationale, as the Wall Street Journal put it. It was in fact a vulgar political decision that castrates the constitution, for by calling the individual mandate penalty a tax, Mr. Roberts gave the government the power to tax anything (or nothing) and any activity (or inactivity) as long as it calls it a tax.

To begin with, as the dissenting four justices pointed out, Roberts did not rule on the law before the court. That law imposed a health-insurance mandate under the Commerce Clause, enforced by a penalty for not purchasing it.

Roberts went with the majority to correctly strike that down as unconstitutional but then magically conjured up an entirely new statute – one he held was constitutional – that would tax those who failed to purchase insurance. The problem is, as the dissent observed, Congress never passed such a law.

“The Court today decides to save a statute Congress did not write,” justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito wrote. “It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax.”

So the Supreme Court both wrote and validated the law. Ironically, in his opinion, Mr. Roberts said the government could not create a market in order to regulate it but then proceeded to use the government’s same flawed logic to create a law in order to uphold it.

That is judicial activism of the worst kind.

Even his contorted attempt to transform the penalty into a tax fails on multiple levels. First, it flies in the face of the dictionary definition of the word, a standard to which judges give heavy credence. A tax, the dictionary informs us, is a compulsory contribution to state revenue, and ‘to tax’ is to impose a tax on something or on some activity.

And, yet, this is a tax on nothing and on no activity. It is a tax on just sitting around doing nothing, and that is a first in American history.

Second, the mandatory contribution does not meet the constitutional definition of a tax. The primary purpose of a penalty is to influence behavior (as such, it can be imposed because of a failure to take action); the primary purpose of a tax is to raise revenue, though secondarily it can influence behavior.

But this tax of Mr. Roberts is designed completely to influence behavior, to get people to buy health insurance. If the law works as it should, it would raise no revenue because everybody would buy the insurance. And that’s the point: the intention is to achieve the exact opposite result of a tax; the goal is to not collect revenue. Clearly, then, it is a penalty, not a tax.

Most important of all, if Mr. Roberts had to call this contribution a tax, he should have adjudged it to be an unconstitutional one. The constitution provides for two types of taxes. The first are indirect, or taxes on voluntary transactions (such as a sales tax). The health-care mandate is a tax on no transaction, and so therefore can not be considered an indirect tax.

The second type of tax is the direct tax, or a tax on property or on a class of people by the virtue of their existence. Well, those who fail to buy insurance under the new law can certainly be considered a class of people, and so they could well be taxed under the constitution.

But there’s a caveat. Out of concern for this very type of government overreach – a fear the government would impose direct taxes willy nilly, whether for revenue purposes or not – the founders limited the ability to levy direct taxes through the apportionment clause.

In other words, all direct taxes have to be apportioned among the states according to their population, that is, if New York has 10 percent of the population, then 10 percent of the tax must come from New York. There is clearly no way this tax can be apportioned among the states, given that some states will have more people paying the penalty than others. Texas, for instance, has the highest concentration of uninsured citizens in the nation.

This situation is not without historical precedent. Indeed, the income tax faced the same challenge, and so supporters of a national income tax had to muster enough support to pass the 16th amendment to the constitution. But that amendment limited the expansion of direct taxing power to income. All other direct taxes remained bound by the apportionment rule.

And so this health-mandate tax, to be considered a tax, should have to be ratified by constitutional amendment as well. In making his ruling, Roberts brushed right over those issues, as the dissent noted, essentially throwing out the apportionment clause of the constitution and transferring a massive amount of power to the federal government. It can now do whatever it wants, so long as it is conveniently called a tax.

What’s coming down the pike next? A tax for not buying hybrid cars? A tax for not buying organic produce? A tax for not buying solar panels?

In the wake of this judicial idiocy, some conservatives went out of their way to actually call Mr. Roberts a genius for setting a definitive limit on government power under the Commerce Clause, while upholding the law at the same time.

This is so much nonsense. What good does it do to limit the government’s ability to compel under the Commerce Clause if we unleash an infinite power to compel under its taxing authority, disemboweling the constitution in the process? The central philosophical debate in this case was about the absolute limits of federal power, not about what name to use when exercising limitless power.

It’s quite like saying the government has no right to cut off my head with a guillotine but it’s quite OK if they call the guillotine an Eternal Rest Inducer. It’s not an intellectually tenable position. Camouflaging and undercutting the issue of federal power by misdirecting the case to semantic hocus-pocus has not only trivialized the credibility of the court but diminished the integrity and reputation of the chief justice.

More seriously, Mr. Roberts’ position is akin to saying the government has no right to detain American citizens indefinitely without a charge, trial or evidence but it is OK to do so if officials call them suspected associates of terrorists. That also is the law of the land as of this past Dec. 31, by the way, signed, sealed and delivered by President Barack Obama.

There are many more examples. Suffice it to say that, one by one, our constitutional rights are slipping down the slope and so is American Exceptionalism. Little by little, day by day, the government is taking ever more power and excising personal freedom.

That personal freedom is the heart and soul of American Exceptionalism. It is the key to human innovation, creativity and prosperity. To understand how special and precious our commitment to individual freedom is, we should for a moment inspect the conservative movements of Europe.

To be sure, they are kindred spirits to American conservatives in many ways. European conservatives rightly focus on the dangers of uncontrolled immigration, and they are correct to cite globalism as a fundamental threat to democracy and national identity everywhere.

But there are many points of departure. In general, though Burkeian conservatives favor some limited and incremental reforms, most European conservatives do not fear statism; indeed, they embrace the idea of a highly regulated and government-run economy. To cite just one example, France’s Marine Le Pen, leader of the rightist National Front, has opposed Greek austerity measures.

In Europe, the conservative fondness for convention harks back to the traditions of old aristocracies and monarchies in which their cultures were bathed, not to battle cries of give-me-freedom-or-give-me-death fought in a revolution in the swamps of the South and in the rugged terrain of the North. Our culture was bathed in the bathwaters of those battles for independence, not in centuries of aristocratic domination.

The vast majority of Americans do not aspire to that lineage, or to the statism found all through Europe. But every day we resemble those nations more and more, and Roberts’ ruling was one more pronouncement of the arrival of a statist society in which government can do virtually anything it wants.

Here’s how the dissenting minority expressed it:

“The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times,” they wrote. “The constitutional protections that this case involves are protections of structure. Structural protections – notably, the restraints imposed by federalism and separation of powers – are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.”

Disregarded it indeed. It was the day they drove Old Glory down.

But we should not fret. Instead, we should fight. As I look out across the American landscape during this week of celebrating independence, I see a vibrant and radiant and energized conservative movement, full of youth and vigor and a passion to do whatever is necessary to restore our constitution and our individual liberties.

Thomas Fleming, writing in the Wall Street Journal, observed that many of our founding rebels realized that the revolution was a spiritual enterprise that would never really end. I believe many of our young patriot rebels today have realized the same thing: The American revolution is a still ongoing battle that must be fought as furiously today as it was in 1776.

In the end, liberty will prevail. Freedom always does. They may have driven Old Glory down, but Old Glory shall rise again.