Next week, while the Republicans continue their search for a candidate to stand against President Obama in the fall election, the president’s central legislative triumph – the Patient Protection and Affordable Care Act of 2010 – will come before the Supreme Court. The justices have the power to declare the law unconstitutional and thereby kill “Obamacare” before it even leaves the birthing chamber. While some believe that such an outcome would be proper, we disagree. A court decision overturning the Affordable Care Act would be an egregious misreading of the Constitution.

The critics’ central constitutional claim is that the 2010 law’s individual-mandate provision exceeds Congress’ regulatory authority. In essence, this provision requires a broad swath of Americans to procure health insurance conforming to certain federal standards. Those who do not procure this insurance must generally pay a “penalty” to the IRS.

Had the bill explicitly used the word “tax” instead of “penalty,” the fatal flaw of the constitutional challenge would be obvious to all. The Constitution undeniably gives Congress sweeping power to tax. And if Congress can tax a person, and then use that tax money to buy a health-care package for that person’s benefit, why can’t it simply direct the person to procure the package himself, or else pay a higher tax?

Of course, tax is a word that lawmakers try to avoid at all costs, and so the euphemistic penalty won the day. Yet, as Shakespeare reminds us, “a rose by any other name would smell as sweet.” Here, penalty and tax are simply two ways of saying the same thing.

Indeed, the Constitution itself does not always use the T-word when referring to taxes, broadly defined. It also uses the words excises, duties, and imposts in the opening sentence of Article I, Section 8, and elsewhere refers generally to all generic “Bills for raising Revenue.” The important thing here is not the term, but how the actual instrument functions, and clearly Obamacare functions as a tax – as a revenue measure. In perfect synch with the Constitution’s key word, revenue, the penalty section of Obamacare is in fact codified in title 26 – the Internal Revenue Code. The “penalty” is paid to the IRS via forms administered by that very same IRS.

Once we see that the “penalty” is a tax and that Congress has the power to tax, the constitutional case against the law collapses.

But even if the law were not a tax, it still easily passes muster as an exercise of a second key power of Congress – the power to regulate interstate commerce.

There are two questions here. First, is health-care insurance a genuinely commercial issue? Of course. Insurance is a classic economic issue of who pays for what.

Second, does health care raise genuinely interstate issues? In other words, does Obamacare address a problem that truly spills across state lines? Yes, of course.

At any given moment, millions of Americans are in states other than their home state. If they fall sick, they will go to local emergency rooms. But an obvious interstate problem arises when sick out-of-state patients lack insurance, and their emergency-room visits end up being paid for by host-state taxpayers. Obamacare solves this problem by generally requiring Americans to get insurance.

Another interstate problem: When an employed person gets a better job offer from an out-of-state employer, he may not be able to take the job – and thereby contribute more to his family and the general economy – without a rule requiring his new employer to cover his preexisting medical conditions. By imposing this requirement on employers, Obamacare creates greater interstate labor mobility in perfect harmony with the core purpose of the interstate commerce clause.

To our friends in the tea party who think the American Revolution is on their side, we say, think again. The rallying cry of the American Revolution in 1776 was “no taxation without representation!” But the 1787 Constitution’s big idea was taxation with representation. Bluntly, the Constitution was a pro-tax revolution. It aimed to give a representative Congress broad power to tax and to regulate – to do all sorts of things that Parliament could not properly do precisely because the new Congress, unlike the old Parliament, would be elected by American voters who could vote the bums out if we disliked the taxes, or the duties or the excises or the imposts or the penalties or the regulations. Whatever.

The federal government represents voters, so it can tax voters and impose mandates on voters, whether these mandates oblige constituents to join militias or buy muskets (as did the Militia Act of 1792, signed into law by President George Washington), to serve on juries, or buy health-care insurance.

The proper check when Congress has acted within its constitutional power is political, not judicial. So if some justices don’t like the law, they should indeed vote against it – not on the court this spring, but in the election this fall.

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University. Todd Brewster is the Don E. Ackerman Director of Oral History at West Point and director of the Peter Jennings Project for Journalists and the Constitution. This post first appeared in the Philadelphia Inquirer.

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21 Responses for “Rejecting Affordable Care Act Is Rejecting Constitution”

  1. BobbyG says:

    Nicely put.

    6-3 to uphold.

    Minimally 5-4 to uphold.

  2. DeterminedMD says:

    Why don’t we just ask the judges to hold their decision until 2014 to convenience all the people who benefit from the legislation and can leave office without accountability.

    Sheesh, this blog just won’t give it up pushing all the defenders and apologists to keep spewing their biased and partisan opinions trying to make us believe the lies should be embraced and not challenged. Does anyone reading here have some hesitation or trepidation with the way some posts are just dismissing there are any consequences to PPACA?

    How about this link from Senator Johnson: http://online.wsj.com/article/SB10001424052702304724404577289363234579868.html?mod=WSJ_Opinion_LEADTop#printMode

    I like the last sentence he wrote: “In a June 2009 speech to the American Medical Association, Mr. Obama promised: “If you like your health-care plan, you’ll be able to keep your health-care plan. Period. No one will take it away, no matter what.” I’m not sure what you would call that statement, but whatever you call it, it was a doozy.” Yes, I know, he is not objective nor impartial, but, is he quoting false figures? None I have read reliably countered yet. But didn’t our current occupant of the White House really say that?

    Yeah, where are all the posts today defending that lame statement!?

    guess those defenders can’t falsify the numbers to back good ol’ Barry, eh?

  3. To the Tax argument:
    Casually adding “penalties” to the enumerated list of “excises, duties, and imposts” is very similar to what Congress really did with this law – eschewed the word Tax precisely so it could eschew the political “proper check”. True representative government should not be at liberty to obfuscate legislation language in order to do things that are in stark contradiction to the wishes of those it represents.
    Removing the judicial check will pave the way for Congress to bury true intent into today’s usual and customary thousands of pages of legislation and enact legislation that would not have passed the light of day “proper check”. Today it may be an agreeable piece of legislation, tomorrow it may be a Santorum bill that is smuggled through by using similar linguistic artistry. It will be too late to argue that there is no precedent by that point.

    To the Commerce argument:
    Paul Clement’s argument that in today’s world almost every individual decision can be tortured back to fit under the Commerce clause is valid, and the contention that the individual mandate is necessary in order to prevent dumping of expenses incurred by inter-state travelers is peculiar, at best. Is there an exact dollar figure for this grievance?
    And just to clarify, if one switches from an employer plan in one State to another employer plan in another State, preexisting conditions are not a factor, and furthermore banning discrimination in insurance coverage purchase has nothing to do with the individual mandate and no anti-discrimination laws come with an attached universal purchasing mandate to compensate the seller for non-discriminatory practices.

    And no, I am not Tea Party. I am Obama-Biden in 2012, but I don’t feel compelled to support a dark Heritage Foundation proposal for solidarity reasons. The ACA will survive just fine without this clearly unconstitutional and very dangerous precedent setting piece of legislation.

    • Nate Ogden says:

      Well said!!!!

    • Elad Gross says:

      I second Mr. Ogden.
      Additionally, the tax argument is not so lock-tight in light of legal precedent. The Supreme Court has held that a tax that is a penalty is impermissible. While the writers may be correct that the Court will construe the penalty here as a tax, the situation is really not so simple. There is a very powerful argument that the penalty in the Act is just that, and that the tax argument will hold little water in the final opinion.

      To the Commerce argument:
      The Court has also held that Congress need not provide explicit findings regarding the impact of the regulation, although the Court has relied on such findings heavily when supporting national legislation. Furthermore, the Court has held since the time of John Marshall that the Commerce Power is plenary. So, if the Act can be construed as regulating interstate commerce, then Congress has full power to enact related legislation subject only to the political check inherent in our federal system.
      While the relationship between interstate travel causing interstate healthcare cost burdens may be attenuated, it is no more attenuated than precedent suggests would be appropriate. See Gonzales v. Raich, upholding national legislation prohibiting the use of marijuana for personal, medicinal consumption because of the potential effect consumer demand for marijuana may have on the illicit interstate drug market.
      However, I think Paul Clement raises an interesting counter to the writers that the Act is a regulation of the insurance market, not of the provision of healthcare. So, if everyone is required to get insurance, does the Act require the owner of the insurance to use it to pay for health services in the event of an accident while travelling interstate? Could the injured party refuse to use it, or perhaps could it be that the minimum required coverage would be inadequate to cover such injury even if the patient wanted to use it?

  4. DeterminedMD says:

    Oh, and by the way, what a wonderful example your leader in the White House set so recently by sending his 13 year old daughter to Mexico for a Spring Break, with 25 Secret Service agents in tow. Let me just offer to educate readers who actually think for themselves and respect how their behaviors and actions impact on the society around them (as I know my writings are just gibberish to the usual suspects who just genuflect to while echoing their leaders and failed political party rhetoric garbage), in relating to people who say one thing and do another, especially when it involves family, such individuals are not invested in the community they live in. Two sets of rules are not compatible with such things like, consistency and reliability?

    Just remind yourselves this every time you consider that PPACA is about helping America, will Pelosi, Reid, and Obama and their ilk of Democrats have to participate in whatever PPACA degrades to when these losers leave office? And if they don’t, doesn’t that bother you that they demand you do their bidding as they walk out the side door?

    I hope this Malia debacle really has political baggage for the C.O.W.H.

    I look forward to reading the dissenting comments from those sending their teens to Mexico this week!!! Oh, and by the way, no where in America to send his daughter for a vacation, to spend money helping our economy?

    Again, do dissenters defending such stupid and reckless behavior think out their defense before the verbal diarrhea ensues!?

  5. MD as HELL says:

    There are too many exceptions and exemptions to make this law pass Constitutional muster.

    An individual writing a check for a service local service is not usually considered interstate commerce. In the case of healthcare the patient assigns benefits of his/her policy to the provider.

    As for indigent out of state patients, no one pays those bills. The tax payer has nothing to fear. They simply are unpaid. They had the cash to get there, but no to be sick there.

    The mandate clearly is beyond the power of Congress to command and demand commerce or else.

  6. Nate Ogden says:

    “without a rule requiring his new employer to cover his preexisting medical conditions.”

    Wow Yale must really be scraping the bottom of the barrel these days. How can a professor of law never have heard of HIPAA? If I was one of your students I would be demanding a refund.

    “director of the Peter Jennings Project for Journalists and the Constitution. This post first appeared in the Philadelphia Inquirer.’

    Can we assume this glaring error will be corrected in the Philadelphia Inquirer?

  7. John Ballard says:

    Five minute history lesson about taxes, by NPR.

    http://www.npr.org/blogs/money/2012/03/22/149058446/from-abe-lincoln-to-donald-duck-history-of-the-income-tax?ft=1&f=93559255

    Readers who think NPR is just another socialist propaganda source may skip this tedious few minutes and go directly to the Disney propaganda (1943) which is the linchpin of the argument.

    http://youtu.be/00u6qUelp6c

  8. Wow, wonderful blog structure! How lengthy have you been running a blog for? you make running a blog look easy. The overall glance of your web site is magnificent, let alone the content material!

  9. ridg ryan says:

    I have listened to a lot of arguments regarding the ACA but haven’t heard the one that differentiates the requirement for people to by car liability insurance in order to drive and health care insurance in order to get health care. Why are these so different?

    • John Ballard says:

      Two differences.

      First, driving a car is optional. No one is obliged to own and operate a car.
      Second, liability insurance is required to protect others. Collision insurance (thankfully for those of us driving old cars) is not a requirement.

      The purpose of the mandate that everyone have health insurance is more about balancing the risk pool than furnishing medical care. Insurance is about risk management, not medical care. (The ultimate insurance is life insurance but the beneficiary only collects when the insured dies. Because the risk pool is certain, insurance again becomes optional.)

      I heard a suggestion on C-SPAN this morning from a caller who suggested issuing a card to anyone who doesn’t want to buy insurance. Like an ID card it would be carried at all times. In the event of some medical emergency it would read “THE BEARER IS NOT INSURED. In case of emergency call the number on this card and arrange payment for treatment. Meantime, push me into the hall and wait for me or my appointed agent to either pay or allow me to die.”

  10. ridg ryan says:

    Thank you for your kind reply. If the point in exhausted, please ignore the following.

    The point I don’t understand is that, even though driving is optional, people drive without insurance all the time. Every time they are caught, there is a fine and the possibility of arrest and suspension of their license. Somebody, like the Christian Scientists, doesn’t believe in modern medicine. Therefore, to some extent, health care is optional. It is nearly always an option for someone sick or injured at home to not go to the hospital and either try to deal with the problem or choose to die. Suicides are a good example. I can understand that driving may be optional, but to some extent, so is health care.

    I agree with the comment from C-Span, that if an individual chooses not to have insurance that, they are, therefore, choosing not to use the health care system unless they can pay for the service some other way.

    What it comes down to is that when people choose to drive without insurance, they are behaving no different from the individual who chooses not to be insured and becomes sick or injured. They will all say that they had no choice but to drive or become sick/injured. You might hear, “I had to get to work therefore I drove without insurance”, or “I have been smoking, eating, abusing my health but I need free health care.” I know, not always that simple but true much of the time.

    Again, sorry if this is a dead issue and I hope this is not like beating a dead issue to death again and again. I guess the SC will decide.

  11. John Ballard says:

    Oh, this is by no means a dead issue as this morning’s SCOTUS arguments show. Thanks to a chorus of complaints the matter has taken on the dimensions of a lynch mob. It seems Justice Scalia and you would be in agreement about opting not to be insured. I just came across this a while ago.

    Justice Samuel Alito appears to be particularly concerned about the young, healthy person who “on average consumes about $854 in health services each year” being saddled with helping pay for the sick or infirm—even though, one day that will describe all of us. Or as Justice Antonin Scalia later puts it: “These people are not stupid. They’re going to buy insurance later. They’re young and need the money now.”

    And Justice Kennedy ponders the though in a way that seems to be in agreement.

    Freedom is the freedom not to rescue. Justice Kennedy explains “the reason [the individual mandate] is concerning is because it requires the individual to do an affirmative act. In the law of torts, our tradition, our law has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him, absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.”

    http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/03/supreme_court_and_obamacare_why_the_conservatives_are_skeptical_of_the_affordable_care_act_.html#comments

    Your point about someone sick opting NOT to get care, even commit suicide, is a strong argument. It’s at least interesting that EMTALA , the federal mandate for emergency medical care, is similar but not universal.

    The law grants exceptions, incidentally, for those who for reasons of conscience, notably the Amish, do not have or want health insurance. An early joke when the law was passed that lots of people may now want to become Amish. But the chorus of opposition has been whipped into a frenzy over the past couple of years and it’s no longer a laughing matter.

    I have a sense of deja-vu remembering the same kind of strident opposition to the Civil Rights Act of 1964. The issue then was whether the Federal Government had the right to tell private property owners how they might or might not use their property. Signs all over the segregated South read “We reserve the right to refuse service to anyone.” And even after the law was passed, some places opted to close their doors rather than comply. Here in Georgia Lester Maddox, later to become governor of the state, closed his restaurant and erected a monument “to the death of free enterprise.”

    The same mean-spirited opposition to what is actually another social contract is alive and well today with the opposition to the mandate.
    Here is another link, just published, you may wish to read.

    http://www.healthinsurance.org/blog/2012/03/28/how-did-the-challenge-to-the-affordable-care-act-ever-make-it-to-the-u-s-supreme-court/

  12. Republicae says:

    Today, it is difficult to grasp the concept that the United States government has absolutely no authority but that, which is specifically provided to it by the Constitutional Compact. In order for any law to be the supreme law of the land it must, by definition, be in complete confirmation of the specific powers delegated within the Constitutional Compact, there can be no question of supremacy without a law meeting such confirmation. If any law does not meet with such qualifications then that law is void and null.

    While there has been a tendency for the Supreme Court to operate as though it was indeed the sovereign determinant factor in all matters, the fact is that the Court is little more than a curator of the supremacy within the restrictive spheres of action and is bestowed no powers beyond any other governmental branch. It is however, evident that the Supreme Court has the ability to either impair or enforce the Constitution, but the proper role of the Court is far from that which it now assumes over this land. Thus the supremacy clause is nothing more than the affirmation of the Sovereignty of the People as it is characterized within the Constitutional Compact. Our system of governments, both State and federal, are completely embraced by the Constitutional powers that are delegated and reserved, the supremacy is bestowed coextensively and as such, that supremacy protects the powers delegated to the federal government equally as it protects those powers reserved by the States, otherwise there is no independent supremacy of either the federal or the State governments.

    Each is co-dependent upon the other for the supremacy of operation within the very specific and limited spheres of action provided by the Constitution to those entities. There is no independent supremacy granted to any branch of government, otherwise there would have been no need for a Constitutional Compact delineating such powers. If the federal government, or any branch of the federal government had such supreme powers then the efficacy of a Constitutional Compact would have been instantly voided and would contain no practical effect on governing. Thus it is the supremacy of the Constitution, not a political branch of government that imposes limitations on each branch of government to very specific orbits of functionality, with one holding no more supremacy than any other branch within our system of governments. If such supremacy existed within one branch of government, or was extended to one branch then the entire concept of checks and balances would be an exercise in futility.

    The Affordable Care Act is neither affordable nor is it in any way Constitutional, for it extends, once again, the powers of government outside the very narrow and restrictive bounds of actual delegated powers. Of course, numerous writings of the Framers could be cited here that show very specific spheres of operational authority where limitations were placed upon the federal government that were to prevent its power from intruding on matters outside the narrow authority for which it was deputized. The majority of such powers were limited primarily to issues dealing with foreign entities, not the States and specifically not individuals.

    Of course, the abuses of power has multiplied over the decades with the overt usurpation of powers that Rightfully belong to the States and individuals therefore it is not shocking in the least that this government, illegitimate in its formulation and execution of such abuses would continue along those same lines in this instance. The government has grasped the power to essentially define the limits of its own powers, regardless of actual Constitutional authority. Congess makes laws, many innovative in both character and scope, despite the will of the people or their cry for redress!

    The common consensus from the Declaration of Independence through the ratification of the Constitution was that the States, by concurrent consent of the People of the Several States, might modify or dissolve the union by the Right of Self-Government. The People have never relinquished that right and in that Right they retrain absolute and complete Sovereignty. The States, by virtue of the Consent and Will of the People, in Constitutional Compact, retained all power to influence the operations of the federal government in order to maintain the security of their Liberty.

    The power reserved to the States and the People respectively demonstrates a particular supremacy over the federal government in that Congress can be compelled, by the States, to call a Constitutional Convention that can, based upon the Will and Consent of the People, ratify changes to the federal government without the consent of any branch of the federal government. In terms of strict Constitutional order, the federal government cannot change itself, nor can it change the governments of the States. While the Constitution enumerates those powers reserved to the States to affect the means and manner of operation of the federal government, it does not enumerate such powers to the federal government over the States. It is evident that while powers of the State Constitutions are limited, that limitation is not placed upon them by the federal Constitution, but by the People of the individual States themselves.

    As such, it must once again fall upon the people to defend themselves through the powers reserved to them, to stand in the voluntary community of States to interpose themselves, nullify laws they deem as overtly against the Constitutional Compact agreed upon by the States in their Free, Sovereign and Independent character as Republics within a Republican Union. This federal government did not create itself, it is the creation of the People through their State governments and as Chief Justice John Marshall once said the creature is not as great as its creator and what the creator made can be un-made!

  13. John Ballard says:

    …curator of the supremacy within the restrictive spheres of action and is bestowed no powers beyond any other governmental branch…

    That is elegant, almost Biblical in tone. I’m thinking the author may have a background in theology because homilies are written with that kind of rhetoric. I am not persuaded, however, because I, too, am one of those “people” and we are a large but mostly far less articulate group.

    There is an old saying among lawyers that if your client is innocent, argue the facts. But if he is guilty, then argue the law. And for the last three days in the hallowed chambers of Washington’s Holy of Holies have echoed with both voices. Take away the fog and what is left is pretty clear. Allow me to curate it in everyday prose.

    Justice Kennedy articulated the core of the argument well when he cited the tradition of torts.

    In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

    And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

    There you have it in a nutshell. There is nothing in the spirit or the letter of the law that mandates either compassion or safety. Now if you wish to agree that the law stands alone, free of any spirit of R2P (that’s a more recent neologism for “responsibility to protect” which a few nations have cited when intervening in global conflicts costing the lives of innocent people — genocide and stuff like that — which the tenor of this diatribe suggests the author would find as disagreeable as the mandate) you are welcome to that construction.

    In the end that out of control Federal Government about which you complain is collecting money, lots of it, in the form of taxes and fees. (In aggregate, by the way, more is collected from so-called blue states than disbursed, in aggregate, to red states.) And that money is what lies at the heart of this argument.

    At any time those sovereign states are free to say to the feds “keep the money because we find too many strings attacked.” Texas actually contemplated such a move to reject Medicaid last year, but guess what? Texas has too many poor people and not enough resources to care for them so it had to bite the bullet and take the money, odious restrictions and all.

    In the end, this is about money, not compassion. And the aim of those opposed to ACA is to leave the federal taxing authority in place (The argument is not against the tax, fee, penalty or whatever euphemism you want to use but against the way it is to be spent.) In the end the argument is “Give us the money with no strings attached.”

    • Republicae says:

      Actually Mr. Ballard, this federal regime is siphoning wealth through various means, primarily through the process of fiat monetary substitution of asset values. The entire system is corrupt, cankered and rotten with the blackness of official Mercantilism, a government Patronage system using every means to maintain and further its power inspite of the LAW. It uses the cloak of legitimacy to conceal the depths of its own lack of concern for the LAW. This government, long ago, rejected the very LAW that was used to create it and control it. The Compact has been abridged, it is no longer operational or valid. This government now has its own mind and has not depended on the Constitution for its alignment and order. All one need do is simply look at most of the cases of The High Court for the last seven or eight decades to take note of the fact that it has become bastardized.

  14. John Ballard says:

    HOO-wah!
    You talk like a Ron Paul supporter.

    Those of us at the far left lunatic fringe speak of corporatocracy or plutocracy. We may yet find common ground. Thanks for your candor.

    • Republicae says:

      “All Power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are no other sources. All delegated power is trust, all assumed power is usurpation. Time does not alter the nature and quality of either.” Thomas Paine

      Freedom that is contingent upon compliance is not Freedom! I am far more radical than most Ron Paul supporters, as a militant Jeffersonian I tend to see solution is the dissolution of this now failed Union, heavily centralized and consolidated under the auspices of a bureaucratic Mercantilist regime, and new guardians deputized for the purpose of protecting the Rights of The People within smaller confederations of Free and Independent Republics. So, yes, I have arrived at the point of being a Secessionist.

      We have long since relinquished the principles of a concurrent majority for the rule of majoritarism, where the ideas of republicanism have given way to the lower, more base form of democracy.

      “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”–James Madison

      Indeed that is exactly what we have seen in this country is a distorted, bastardized form of illegitimate government. Because of the use of such arbitrary interpretation and therefore application, I think we should not be surprised when someone like Bush overtly trespasses against the Constitution. The Constitution’s standing in this country has been neutralized by a variety of political philosophies, the least of these are those who advocate original intent based upon a Christianized view of the founding of this country. Others have simply sought to render it so flexible that it no longer retains the viability of protection that they claim to support. These factions fail to see the meanings behind the principles, those both philosophical and practical. The principles, upon which the Constitution was structured, in a real sense, are neither totally static nor dynamic, but both and are essential to good government and to the pursuit of happiness by the people.

      This country has not seen such a critical a time in our political concerns as we now face and it is primarily due to the fact that we have allowed various political ideologies to arbitrarily interpret the Constitution to fit their particular ideological points of view. Today, our country not only stands before a period of extremes, but dangerous extremes that could, with ease, erase what we have always considered as particularly and essentially the American guarantee of the individual’s claim to Liberty. Instead of a country filled with free people, who assert their dignity through Liberty, we have become subjected to the will of a government that sets its own parameters of its reach and authority through the arbitrary interpretation and application of law. Principles are no longer considered inviolate, but are subject to the political whims of the day, whether those whims are Liberal, Conservative, Neo-Conservative or any other political ideology. Today we happen to be witness to the “living Constitution” as Liberals view it; tomorrow we might be witness to another group and their interpretation, such as the Neo-Conservatives. Therein is the danger of such an arbitrary interpretation.

      When any political ideology or philosophy extends an arbitrary utility over a Constitutional principle, it does so at its own peril. I say that because, as we see with the Bush Administration and now the Obama Administration, it is then easy for any group to take liberties with those principles and thus affect one or more sections of an opposing party or interest. Once the door is open to accept and approve the arbitrary interpretation and application of the Constitution, and then it becomes much easier for abuse to ensue. If the principles found within the Constitution are not foundational to both government and the People, then those principles will always be usurped, abused or denied. When the principles of the Constitution are no longer viewed as essential and therefore open to any interpretation, then they provide no protection from potential abuse by those of any political agenda.

      One amazing fact is that the various political ideologies always seem to support some degree of Constitutional stretch when it follows their own particular political agenda, but when an opposing agenda stretches beyond the bounds of the Constitution there is an uproar and condemnation. It was easy for the Republicans; for instance, to condemn the Clinton Administration over its Constitutional abuses but not its own abuses that occurred while Bush was in office. It is easy for the Republicans to cry out about Obama and his abuses and yet the Republicans are offering little change with three of their mainstream, status quo candidates in this election and have rejected the one candidate who is a Constitutionalist.

      Likewise, the cry from the Democrats is equally as adamant when a Republican abuses those powers and reaches beyond the Constitution in one way or another when those breaches are contrary to their own agenda. The government seeks the ease of power and yet the Constitution was created to make it cumbersome to govern, thereby removing the potential for both consolidation of powers and the abuse of such powers. Checks and balances are extremely cumbersome, viewed as outdated and inapplicable in our day and age, is it any wonder that the view of foundational and inviolate principles is looked upon with such disdain? It is symptomatic of all centralized governments to seek power for it eases its ability to rule, a fact that history bears out to be true.

      When we allow a very relative interpretation and application of Constitutional principles to prevail then not only will power seek the level of its own expression, but, in every case, the People will end up being the ones to eventually suffer the consequences of such relativity. Government bureaucrat’s prize relativity, for it removes restraints regarding the application of government statute over the principles designed to constrain such powers.

      This government cannot do anything unless we cede it the power to do so, that includes the abridgment of our Rights. The Obama Administration, as did the Bush Administration, is only following a path that was already well beaten when it came to power. Granted, both Administrations have extended government power beyond anything seen since the Wilson and Roosevelt Administrations, but never the less, it is far from being an action beyond precedent.

      Political decentralization, a key structure found within the Constitution, is interwoven with the ideals of Individual Liberty. While it is the responsibility of the individual to place demands upon government for the appropriate execution of the Rights that foster such Liberty, it is not without precedent for any government, limited or not, to usurp and consolidate power to the bereft of the individual. Today we are witness to a vast number of powerful interests, both social and economic, manipulating government to the benefit of their particular agendas, all done, of course, under the carefully crafted guise of democratic freedom. People have always clamored over the promises of politics rather than the reality of politics and politicians are all too eager to oblige such inclinations of the People thus gaining their allegiance and support. The political reality of the day however, is far too disturbing to be spoken by the majority of politicians today; it is simply not palatable to the electorate.

      Currently we are asked to “voluntarily” relinquish a great many of our Rights, in one degree or another, for the sake of security. It is not the first time the government has made such requests, doubtless it will not be the last, but we must remember what we do when we allow such license to government. When extra-Constitutional license is ceded to government, the government will always willingly accept for it is in the nature of government to govern more by force than by consent.

      It is easy to see that the decline of Classical Liberalism in our society is mirrored by an increased power and centralization of The State as it takes advantage of the decline of citizen action and influence. The philosophy of Classical Liberalism that once prevailed in this country has been silent for far too long and thankfully it is experiencing a revival of sorts, partly out of necessity and partly out of the utter disgust with the quandary that passes as government in this country.

      Until the People openly oppose all attempts to evade Constitutional Order then we will all continue to be in jeopardy from those who have shown no qualms at its usurpation at the expense of the People. Unless we oppose all efforts to abridge our Rights and Liberties by any government, political party or ideology then we will continue down the road where our Rights are totally contingent upon the winds of political expediency. If the People take those vital principles for granted or if we continue to excuse them as outdated or ineffectual for our time, even though they were specifically designed to protect all of us, then why should we be surprised when the government takes advantage of our own complacency as we readily cede such power and grant such license to those are only too willing to accept a power with far less restraint then is ordered by the Constitution.

      Of course, the seeds of this governments destruction were planted long ago. It is rapidly transforming its techical bankruptcy into an effective bankruptcy.

  15. John Ballard says:

    Somebody open a window. I need air…

    ~~~~~~~~~~~~~~~~~~~~~~~~

    Readers go check out Margalit Gur-Arie’s blog. She’s smokin’!

    Another pearl from the March 27 arguments was the realization that the States concede that the Federal Government has the power to require that people pay for health care with insurance. They only differ on the timing of buying the necessary insurance instrument, with the State Governments insisting that a free citizenry should have the right to purchase insurance en route to the ER, if they so choose, and the Feds arguing that they must buy insurance the day they are born. Does that mean that one cannot pay for health care with cash, or chickens? Will they check to see if you have insurance and if so, cash payments will be disallowed? What do you do if you’re one of the penalized? Do you get to pay cash, or do you get some services in return for all those penalties you paid into the system?

    http://onhealthtech.blogspot.com/2012/03/peoples-advocate-at-supreme-court-bar.html?showComment=1333046086383#c8350866888236537004

    Wish I’d thought of some of that, especially the part of “will they disallow cash payments?” with OR without insurance.

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