Lady: “Well, Doctor, what have we got—a Republic, or a Monarchy?”
Franklin: “A Republic . . . if you can keep it.”
—Benjamin Franklin, as quoted in notes taken by Dr. James McHenry following the Constitutional Convention of 1787
Some of you may be wondering where I’ve been since Thursday’s announcement of the Supreme Court’s decision upholding Obamacare. The ethical obligations of my license require me to maintain a certain degree of respect and decorum in my discussion of the courts. So before I said something rash, I wanted to take some time to calm down. I wanted to go to the gun range and blow off some steam. I wanted to open up the bar and have a couple dozen martinis—hey, don’t I now have free publicly-subsidized medical insurance to deal with my inevitable cirrhosis of the liver? I wanted to let some of the dust settle and reflect (although I’ll confess I still haven’t been able to bring myself to read the opinion itself).
Mostly, I wanted to find the silver lining I knew had to be there.
I have to tell you, friends, I didn’t find it.
I wasn’t all that surprised with the result, although like most of you I was cautiously optimistic that Justice Anthony Kennedy might get this one right and we’d avoid actually falling into the abyss. What was shocking was that although Justice Kennedy in fact did side with those correctly holding the law unconstitutional, it was Chief Justice John Roberts who crossed over and wrote the opinion upholding the law. Yes, the same John Roberts whom then-President George W. Bush touted as a solid conservative nominee, just as George H.W. Bush had done years earlier in nominating David Souter. Congratulations, gentlemen. Legacy, meet the Honorable Messrs. Bush.
No silver lining there.
I looked for a positive in that Chief Justice Roberts didn’t uphold the law under the Commerce Clause, thus expanding it even further beyond its already unrecognizable post-Wickard v. Filburn interpretation. But he instead did far worse. By choosing to uphold the law as a tax, Roberts’ opinion has effectively removed any remaining limit on the authority of the federal government. At least prior to Thursday’s ruling, proponents of Big Government action had to tie what they wanted the government to do to the regulation of interstate commerce. Those ties were often tortured and incoherent, but at least they had to be there. Now Big Government proponents don’t even have to do that. And for those of you dancing in the streets over the liberal victory, don’t say I didn’t warn you to be careful what you wish for, because the real danger in this thing isn’t the substance of Obamacare itself—it’s bad substantive policy, but that’s another discussion—but in its broader implications for the limits of federal power. Under Chief Justice Roberts’ opinion Thursday, a different administration and Congress could just as easily enact a law that compels you to buy a handgun (or a GM electric car, or solar panels, or rubber dog turds, you name it), and imposes a tax on you if you don’t. There is no longer any limit on what the federal government can make you do, as long as it enforces its edict with a penal tax.
No, there’s no silver lining in the rejection of the Commerce Clause argument.
Some, like Hannity, have been touting the decision as a political plus, the thinking being that it would energize people for November to defeat Obama. I originally tried to cling to that branch myself. But we need to be realistic. The fact is the people who are going to be most upset with Thursday’s decision were already going to vote against Obama. It’s kind of like the old saying about “bulletin board material” and rivalry games in football: there’s no real risk of creating extra motivation, because if you can’t get up for a game against your arch-rival, you shouldn’t be here. It’s a nice idea to think that there’s going to be some extra push come election time because of this.
But I don’t think so.
If there’s a silver lining here, it’s on a longer term track, and it’s going to be a very painful ride. I’ve long complained about the Bush-Rove Republican establishment being little better than Democrat-Lite, and it's why I don't identify myself as a Republican and I no longer give money to the RNC. They’re not interested in truly conservative small-government principles; they basically want what the Democrats want, only with them in control instead. And so we’ve been handed mealy-mouth things like “compassionate conservatism” (whatever the hell that was), compromise in the form of giving in to virtually anything the Left wants, and Supreme Court nominations like David Souter and John Roberts. I told friends back in 2008 after we got stuck with John McCain I thought we might need someone like a (then-presumptive nominee) Hillary Clinton to win in order to drive majority sentiment sufficiently back to the Right. That is, kind of like debriding a burn wound where you have to go through the excruciating process of scraping out the dead and infected tissue in order to bring about healing, we need people to experience the Full Monty of the Left’s agenda in order get us back to real conservatism.
We have a similar situation now. The people who need to be motivated to defeat the Left aren’t those on the conservative Right who are justifiably upset by Thursday’s ruling. It’s the uninformed and naïve moderates who have been snookered by the Left’s false promises of Utopia. Thursday’s ruling won’t get them motivated, and it won’t happen in time for November. It’s going to take a very painful period of letting this Statist train go forward so that they can actually see the lies we’ve been warning about come to pass before they’re going to understand. The question is whether it’s too late to turn this ship around by the time Obamacare has been fully implemented so that everyone can see its results.
Thursday night I sat both my kids down individually and told them I was sorry that I hadn’t been able to do more to stop what happened at the Court. It’s ultimately going to affect them more than it does me. The six year old of course doesn’t understand it yet, but the fourteen year old does.
Liberty has taken a devastating blow.