Illinois Review ^ | June 30, 2012 A.D. | John F. Di Leo
On June 28, 2012, Americans learned many things. We learned that the same
thing can be a tax, not a penalty, in one part of a law, but is a penalty, not a
tax, elsewhere in the same law. We learned that a Yes vote is not political but
a No vote is, on this case, but a No vote is not political, and a Yes vote is,
on another case. And we learned that a constitutionally limited government is a
dusty old historic artifact, not just in the minds of socialists, but even in
the minds of justices whom we had mistakenly believed, when they told the Senate
that they would always respect and obey their oaths of office.
Politicians have been claiming that education is a just function of
government ever since the Founding era, when Thomas Jefferson called for
universal taxpayer-funded schools (even though his genius, and that of his
fellow Virginians, was usually successfully developed through homeschooling and
private tutoring). But if government feels obligated to teach lessons like
these, we would all much rather they didn’t bother.
A CONSTITUTIONAL LESSON
The Constitution, negotiated 225 years ago this summer in Philadelphia’s
Independence Hall, provided for a limited government. The Framers’ great pride
was that they had produced a strictly limited government, small enough to avoid
undue intrusion into the private sector, while just strong enough (unlike the
Articles of Confederation that it would replace) to ensure a stable currency,
the rule of law, and the ability to pay their soldiers so the country would be
safe from invasion.
The Constitution was and is a combination of two things – a list of permitted
activities for government and a manual for how the employees of that government
were to be organized. The American left long ago disregarded the former,
concentrating their praise (for an American politician knows he must only have
praise for the Constitution if he wants to win elections) on the latter aspect.
“What a wonderfully balanced system it is!” they say. “How brilliantly
organized!” “We’re proud to be part of it!”
…as if our Founders risked their lives for the right to have an upper house
in which you had to be at least thirty, but a lower house in which you could
serve at twenty-five. As if the Framers suffered through a hot summer in
Philadelphia far from home, just to ensure that the president was at least
thirty-five, as if a twenty-year-old would ever be elected nationally anyway.
Ridiculous.
In fact, the important thing was and is the limitation. The whole point of
the Constitutional Convention was finding a way to meet our needs for
governance, while the government remained highly limited. The point was to
expand the powers just a little, in an organized fashion, pushing the walls
outward just a bit, but without knocking them down in any direction.
The new government was given certain enumerated powers, and was given the
power to tax to pay for these powers. Just in case that wasn’t clear enough from
the text – it certainly should have been, but just in case – the states ratified
the Tenth Amendment, to make it crystal clear even to the unusually thick. If
the Constitution doesn’t say the federal government can do something, then it
can’t.
A TAXING LESSON
The Commerce Clause has long been stretched to the breaking point, as
powerful agencies from the FCC to the EPA have been established to regulate
interstate commerce. If you sell or buy a product across state lines, the
federal government has claimed the right – sometimes fairly, usually not – to
wrap its claws around a pen and write some rules to govern you.
But even this clause, expansive as it has been judged to be in the 20th
century, could not be said with a straight face to regulate the choice not to
sell or not to buy such a product. Lacking the standard go-to tool of one’s
predecessors in the black robes, what’s a statist to do?
The Constitution provided a legitimate option, the amendment process. If the
American people wanted the federal government to take over the healthcare
sector, then Congress and/or the states (there are even alternate paths – the
Framers were nothing if not broadminded) could introduce an amendment and
campaign for its ratification. If the public really wanted nationalized
healthcare, they would clamor for it and the states would knock each other down
to be the first to ratify such an amendment.
But in the real world, however, where no statist would ever dream of taking a
losing cause like this to the people, the Pelosereidian Congress passed, and a
lawless president signed, an act to just hand over to the Supreme Court. The
Supreme Court then just had to look for some justification to let it go without
an amendment. Congress and the President no longer feel bound by their oaths of
office; they pass anything they feel like it, and have long since trusted the
judiciary to sort it out.
Four justices have long been known for their dismissal of their oaths… five
were thought to take their oaths reasonably seriously. But then the Obamacare
case came face to face with Chief Justice John Roberts.
A majority of the justices – the four known unconstitutionists and the Chief
Justice – imagined that the power to tax is unlimited, so anything with a
financial aspect can be called a tax and deemed Constitutional. Much like many a
similarly destructive villain in the movies, the idea is brilliant but insane.
The power to tax is clearly limited; the government can raise taxes to fund
only the legitimate functions of government. Without limits on government
functions, there’s no point in any constitution, and without the power to tax to
fund those functions, there would have been no reason to replace the original
Articles of Confederation (which provided for government functions without a
means to fund them).
Gouverneur Morris’ brilliant preamble explains what the Constitutional
government was intended to accomplish, and how – that it was their design for a
limited government that would provide for the common defense and promote the
general welfare. So, when the taxing power is stated in Article I, Section 8 as
being provided for these functions – the common defense and general welfare, the
term “general welfare” is used only as indicated in the preamble: The general
welfare, as the Framers meant, envelopes the clauses of the Constitutionally
listed functions: this constitutionally limited government, and only this, is
what they defined as constituting the promotion of the general welfare from the
capitol, and thus being legal for tax revenues to fund… not any other idea, old
or new, that some future majority might think of adding.
Clearly, therefore, the Constitution only allows the government to tax as
needed to pay for the government obligations enumerated in those seven articles.
To add new ones, an amendment would be required.
If the power to tax is not limited to authorized functions, then there is no
Constitutional limit; the government could just write any law it wanted and
assess a penalty for non-compliance to “render it constitutional.” That’s not
freedom; it’s tyranny.
THE END OF PRECEDENT
The United States of America was born with a long and proud heritage of
British jurisprudence… but on the day the new government was reborn under the
freshly ratified Constitution in 1789, there was only the Constitution itself,
no shelves of federal statutes to refer to when there was a question.
So, just as language needs dictionaries and doctors need medical books, the
lawyers and jurists had to have a system to rely on, in the meantime, before our
new government built up those new bookshelves of federal laws.
We therefore had an understanding that we could reach back to prior existing
work in the body of English common law… not forever, but on any issue, until the
United States put something down in writing ourselves.
So early jurists, faced with a question unclear in the Constitution or other
new laws, might refer to the Federalist Papers, which were written by three
Convention delegates between the Convention and the ratification, and thus would
help to understand what the Framers meant. They might reach back to “The Law of
Nations” by de Vattel, or might reach back to Blackstone’s “Commentaries on the
Laws of England.”
As our nation aged, and Congresses passed more and more laws and
clarifications over the years, such reliance on pre-1789 sources seemed like it
should be less necessary, and our judges and justices began to rely on post-1789
laws and rulings; being more recent, they felt more appropriate, more in
context.
Relying on post-1789 laws makes sense, because these are laws passed by the
Constitutional lawmakers. But relying on precedent – when commonly defined as
the rulings of prior judges and justices, not actual laws – has proven more and
more problematic over the years.
Reliance upon a law is firm, and is required until that law is overturned or
replaced. But reliance upon a prior judicial ruling may just serve to amplify a
prior error; that’s what has happened more and more, as our years have grown in
number and our judiciary has diminished in talent.
Once upon a time, there were relatively few truly bad decisions, and could
easily be avoided. Dred Scott v. Sandford was a black mark on the judiciary for
decades, and it largely stood alone as a nightmare of error. It didn’t cast the
generally accepted concept of relying on precedent in a bad light.
But in the twentieth century, bad decisions, weak decisions, foolish
decisions started to multiply like so many black-robed rabbits, poisoning the
well of precedent for future jurists to draw from. Griswold v. Connecticut, with
its emanations and penumbras… Roe v. Wade, with its arbitrary trimester
framework… Arizona v. United States, with its attack on employers who hire
lawbreakers, while giving the lawbreakers themselves a counterproductive and
unwarranted pass…
…and now NFIB v. Sebelius, with its idea that anything is Constitutional if
it has a financial aspect.
In the current Court’s twisted mind, turning the theme of JFK’s inaugural
address on its head, government can legally charge any price, inflict any
burden, mandate any hardship, and neither the Constitution nor the judiciary
will stand in their way. In the cowardly new world of NFIB v. Sebelius, the
checks and balances of the American system have given way to an unchecked
legislature and an unbalanced imperial presidency.
But there is a solution, and that solution was foreseen by the group of
jurists known as originalists. For decades, Clarence Thomas and his adherents
have had the good sense to disregard the precedent of recent decisions, and
instead to focus on the writings of the Framers themselves.
Instinctive reliance upon judicial precedent was suffering enough before the
current Court punched a hole in the wall of the Constitutional fortress; such
knee-jerk respect for other opinions is now wholly discredited.
When future Courts rule, they will have to reach back again, as they once
rightly did, and think of what the Framers meant… not by trusting the judgment
of ever-more removed justices a century or two after their time, but by reading
the writings of the Framers themselves, and of their contemporaries and
antecedents.
If there has been an ongoing debate in recent years, between the original
text and the interpretations of recent courts, NFIB v. Sebelius has – perhaps
unintentionally, but still without question – tipped the scales irrevocably away
from the system that produced this outrage.
NFIB v. Sebelius is now in print as precedent. Like adding an ounce of
strychnine to a glass of fine wine, or mixing a cup of arsenic into a pot of
sauce, this blueprint for tyranny has demonstrated for all to see how far the
Court’s judgment has plunged from once-lofty heights, poisoning the well of
precedent for good.
Only one course remains for the American judiciary: to recognize that heavy
reliance on precedent has been rendered toxic by a century of excesses, and that
the time has come to return to the Framers themselves when interpreting the
Constitution.
Obamacare is a massive assumption of unconstitutional national power, a
destructive basket of new and increased taxes and takeovers designed to bring
the private sector to its knees and turn the United States into another France,
another Greece, another Cuba. It must be repealed, because even as the Court was
forced to admit, it is bad policy on a colossal scale.
But it has served one useful purpose: it has brought a case to the Court
that, in its ruling, has laid bare the moral failings of the modern judiciary
for all to see. If this case contributes to a long-needed exposure of the
intrinsic error in an overly deferential respect for precedent, and a return to
reliance upon the wisdom of the Framers, then at least it shall not have been
utterly in vain.
If this nation defeats Obamacare and its tyrannical champion this year, then
it will emerge stronger for the many painful but important lessons it has
learned.
And if not, well, then this nation will be an exception to many other great
nations in the history books. The reasons for the falls of many past great
civilizations have been the curious study of brigades of historians for
centuries - the Romans, the Greeks, the Franks, the Byzantines – all soared,
then fell victim to various internal and external trials.
But if these United States fail to overturn Obamacare and the myriad other
sins of the Obama administration – and if they fail to give the petty dictator
his walking papers in November – then the reasons for America’s collapse will be
plain for even the amateur student of history to see, a cautionary tale for
future millennia, the saddest lesson of them all.
Copyright 2012 John F. Di Leo
John F. Di Leo is a Chicago-based Customs broker and international trade
lecturer. While his degree says that he studied his political science and
history at Northwestern University, his most important teachers have been since
then, the ones available to everyone, at bookstores and libraries, on computer
screens and eReaders: Richard Brookhiser, Willard Sterne Randall, Paul Johnson
and William F. Buckley, Jr… and the original sources as well: George Washington,
Alexander Hamilton, James Madison. The wisdom of the Framers is plain to see;
one needs only to read their words, and to study the histories written by those
who respect them.
Permission is hereby granted to forward freely, provided it is uncut and the
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