Constitutional Contortions - National Review Online
Three months ago, I quoted George Jonas on the 30th anniversary of Canada’s ghastly “Charter of Rights and Freedoms”: “There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself,” wrote Jonas. “It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them.”
For longer than one might have expected, the U.S. Constitution was a happy exception to that general rule — until, that is, the contortions required to reconcile a republic of limited government with the ambitions of statism rendered U.S. constitutionalism increasingly absurd. As I also wrote three months ago (yes, yes, don’t worry, there’s a couple of sentences of new material in amongst all the I-told-you-so stuff), “The United States is the only Western nation in which our rulers invoke the Constitution for the purpose of overriding it — or, at any rate, torturing its language beyond repair.”
Thus, the Supreme Court’s Obamacare decision. No one could seriously argue that the Framers’ vision of the Constitution intended to provide philosophical license for a national government (“federal” hardly seems le mot juste) whose treasury could fine you for declining to make provision for a chest infection that meets the approval of the Commissar of Ailments. Yet on Thursday Chief Justice Roberts did just that. And conservatives are supposed to be encouraged that he did so by appeal to the Constitution’s taxing authority rather than by a massive expansion of the Commerce Clause. Indeed, several respected commentators portrayed the Chief Justice’s majority vote as a finely calibrated act of constitutional seemliness.
Great. That and $4.95 will get you a decaf macchiato in the Supreme Court snack bar. There’s nothing constitutionally seemly about a Court decision that says this law is only legal because the people’s representatives flat-out lied to the people when they passed it. Throughout the Obamacare debates, Democrats explicitly denied it was a massive tax hike: “You reject that it’s a tax increase?” George Stephanopoulos demanded to know on ABC. “I absolutely reject that notion,” replied the president. Yet “that notion” is the only one that would fly at the Supreme Court. The jurists found the individual mandate constitutional by declining to recognize it as a mandate at all. For Roberts’ defenders on the right, this is apparently a daring rout of Big Government: Like Nelson contemplating the Danish fleet at the Battle of Copenhagen, the chief justice held the telescope to his blind eye and declared, “I see no ships.”
If it looks like a duck, quacks like a duck, but a handful of judges rule that it’s a rare breed of elk, then all’s well. The chief justice, on the other hand, looks, quacks, and walks like the Queen in Alice in Wonderland: “Sentence first — verdict afterwards.” The Obama administration sentences you to a $695 fine, and a couple of years later the queens of the Supreme Court explain what it is you’re guilty of. A. V. Dicey’s famous antipathy to written constitutions and preference for what he called (in a then largely unfamiliar coinage) the “rule of law” has never looked better.
Instead, constitutionalists argue that Chief Roberts has won a Nelson-like victory over the ever-expanding Commerce Clause. Big deal — for is his new, approved, enhanced taxing power not equally expandable? And, in attempting to pass off a confiscatory penalty as a legitimate tax, Roberts inflicts damage on the most basic legal principles.
Still, quibbling over whose pretzel argument is more ingeniously twisted — the government’s or the Court’s — is to debate, in Samuel Johnson’s words, the precedence between a louse and a flea. I have great respect for George Will, but his assertion that the Supreme Court decision is a “huge victory” that will “help revive a venerable tradition” of “viewing congressional actions with a skeptical constitutional squint” and lead to a “sharpening” of “many Americans’ constitutional consciousness” is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel. Back in the real world, it is a melancholy fact that tens of millions of Americans are far more European in their view of government than the nation’s self-mythologizing would suggest. Indeed, citizens of many Continental countries now have more — what’s the word? — liberty in matters of health care than Americans. That’s to say, they have genuinely universal government systems alongside genuinely private-system alternatives. Only in America does “health” “care” “reform” begin with the hiring of 16,500 new IRS agents tasked with determining whether your insurance policy merits a fine. It is the perverse genius of Obamacare that it will kill off what’s left of a truly private health sector without leading to a truly universal system. However, it will be catastrophically unaffordable, hideously bureaucratic, and ever more coercive. So what’s not to like?
To give Chief Justice Roberts’ argument more credit than it deserves, governments use taxes as a form of incentive. There is mortgage tax relief because the state feels home ownership is generally a good thing. Conversely, not buying health insurance is a bad thing, so such anti-social behavior should be liable to a kind of anti-social tax. But, as presently constituted, the Supreme Court’s new “tax” is a steal — $695 is cheaper than most annual health-insurance policies. Especially when, under Obamacare, you’re allowed to wait till you get ill to take out health insurance, and you can’t be turned down. Which is why the cost of insurance is already rising, and will rise higher still down the road. Which means that in a few years’ time paying the penalty will look even more of a bargain, at least until you fall off the roof or acquire an uncooperative polyp. Right now, many Americans are, by any rational measure, over-insured. That will be far less affordable in the future. Some are already downgrading to less lavish policies. Those with barebones policies might likewise find it makes more sense to downgrade to the $695 penalty. What Chief Justice Roberts sees as the Alternative Mandate Tax, millions of Americans will see as a de facto Alternative Minimum Health Plan.
Who knows? Chances are I’m wrong, and the justices are wrong, and the government’s wrong, and the consequences of Obamacare will be of a nature none of us has foreseen. But we already know Obama’s been wrong about pretty much everything — you can keep your own doc, your premiums won’t go up, it’s not a tax, etc. — and in the Republic of Paperwork multi-trillion-dollar cost overruns and ever greater bureaucratic sclerosis seem the very least you can bet on. It should also be a given that this decision is a forlorn marker on a great nation’s descent into steep decline and decay. Granted the dysfunctionalism of Canadian health care, there’s at least the consolation of an equality of crappiness for all except cabinet ministers and NHL players. Here, it’s 2,800 unread pages of opt-outs, favors, cronyism, and a $695 fine for those guilty of no crime except wanting to live their lives without putting their bladder under the jurisdiction of Commissar Sebelius.
And the Constitution is apparently cool with all that.
So be it. It’s down to the people now — as it should be. But, meanwhile, a little less deference to judges wouldn’t go amiss. The U.S. Supreme Court is starting to look like Britain’s National Health Service — you wait two years to get in, and then they tell you there’s nothing wrong. And you can’t get a second opinion.