O.K., I’ll admit it up front. I haven’t yet read the decision, so I’m going entirely by what I’ve read about decision, which amounts mainly to half-digested reactions. My first thoughts are subject to massive revision, after I’ve had the time to read and think.
Nevertheless, here goes nothing….
First, according to this Court, it seems that the federal government’s taxing and spending authority is more extensive than its authority under the commerce clause. The mandate was upheld as a tax, not as a regulation of interstate commerce. Those who want to expand the reach of government–and they are legion–now have to phrase it in these terms. Since we have (for better or worse, more often than not the latter) used the tax code to offer all sorts of incentives and penalties for behavior, this isn’t necessarily anything new. I would have preferred a narrower reading of the taxing and spending authority, but that would probably have required a much greater judicial “revolution” than any majority on the current Court would have been willing to countenance.
Second, there is a bit of a silver lining from this proposition. Taxes are harder to justify politically–they’re, generally speaking, less popular–than “mere” exercises of government authority. To be sure, when roughly 50% of the country pays no federal income tax, this might be a less formidable barrier, but it’s a barrier nonetheless.
Third, connected with this is the politics of healthcare reform. The fact that the Affordable Care Act is constitutional doesn’t make it good policy. We can–and must–still argue about that. We must still ask the question whether the benefits we’re extending under the legislation are worth the real price we have to pay, whether, in other words, we shouldn’t call it the Unaffordable Care Act.
Fourth, it’s worth remembering that the real limitation on government is not the Supreme Court’s interpretation of the Constitution. The Justices are perfectly capable of getting it wrong. The real limit on government, the real mechanism for upholding the Constitution, is an electorate vigilant about its rights and responsible about its duties. We have long relied too heavily on the Supreme Court and have forgotten the wisdom of The Federalist Papers, which remind us that, by itself, the Constitution is merely a parchment barrier that will be maintained only so long as the citizens insist that their representatives respect it. The ball is in our court. If we want a limited government, we have to vote that way.
Finally, I may be mistaken, but the religious freedom issues posed by the contraceptive/abortifacient mandate remain. The litigation surrounding those issues will go forward, and we should not assume that the Supreme Court that upheld the Affordable Care Act will also uphold these regulations. In the long run, it’s more important to make the case in the court of public opinion that “big government” threatens all our liberties–including those most precious religious liberties–but that’s no reason not to work through the courts as well.
I’m disappointed by the decision and had hoped for something different. But if this serves to remind us of the importance of the primary political means for maintaining limited government, then some good has been done.
June 28th, 2012 | 1:39 pm
The impact of the decision? For me it means that the United States of America has ceased to be a federation. The Federal Government now has no limitation on it power, a written consitituion notwithstanding.
June 28th, 2012 | 1:58 pm
Please, what would be helpful to people is if First Things exercises some editorial discretion and refuses to publish blog posts where the author admits from the get-go he hasn’t done his homework.
June 28th, 2012 | 5:22 pm
Alberto, it would also be nice if Congress didn’t vote on 1200 page bills most of its members admit they didn’t fully read or analyze, but hey, Congress and the Supreme Court don’t care about that…
So why, Alberto, should we hold First Things to a higher standard than Congress?
June 28th, 2012 | 5:30 pm
The court just endorsed the intent of the first sentence of the preamble to the Constitution where it states along with several other reasons that in order to form a more perfect union the government is to promote the general welfare of its people. Now isn’t the health of its people a part of the general welfare? Everything else noted in this sentence is supported and operated by the Federal Government so why not the health business in lieu of special interests groups?
June 28th, 2012 | 5:36 pm
Please, what would be helpful to people is if First Things exercises some editorial discretion and refuses to publish blog posts where the author admits from the get-go he hasn’t done his homework.
Since he warned us upfront, you should have stopped reading past that point, if you didn’t want his opinion.
June 28th, 2012 | 6:59 pm
Mike, you ask, “Now isn’t the health of its people a part of the general welfare?”
By that same logic, I could argue that eating, drinking, and having electricity and internet is part of my “general welfare”. I will therefore forward all those bills–grocery, utilities, etc. to the government. And since our tax dollars are what the government uses to pay for things, those costs should be carried by you.
Do you see the slippery slope now? Almost anything can be claimed as “good for the general welfare”. Food and water are more fundamental than healthcare–or are intrinsic to it–why then should anyone continue to have to buy their own food?
June 29th, 2012 | 2:37 am
Mitt Romney spoke on TV immediately after the decision was announced and promised to repeal Obamacare as soon as he takes office. He received $2.7 million in donations and pledges in one day. This ruling is galvanizing people to ensure that Obama loses in November. Dick Morris called it a Pyrhic victory for Obama, winning a battle in a way that guarantees he will lose the war.
June 29th, 2012 | 7:12 am
Artaban
The government recognises the importance of food by regulating and subsidising its production, regulating and monitoring its quality and, in time of war or national emergency, setting prices and rationing it.
June 29th, 2012 | 12:56 pm
On the tax question, would you regard a levy, limited to uncultivated land, or derelict building land, as a tax or a penalty?
If a tax, could such a tax on inactivity be justified?
June 29th, 2012 | 3:38 pm
Mike, you ask, “Now isn’t the health of its people a part of the general welfare?”
By that same logic, I could argue that eating, drinking, and having electricity and internet is part of my “general welfare”. I will therefore forward all those bills–grocery, utilities, etc. to the government. And since our tax dollars are what the government uses to pay for things, those costs should be carried by you.
Do you see the slippery slope now? Almost anything can be claimed as “good for the general welfare”. Food and water are more fundamental than healthcare–or are intrinsic to it–why then should anyone continue to have to buy their own food?
Ultimately what is under discussion is whether the Constitution is to remain a document that limits government, or will it become a document that limits people.
Which is a less flattering way of comparing liberty as negative or positive – freedom or free goodies.
June 29th, 2012 | 6:31 pm
[...] Professor Knippenberg at First Things. [...]
July 2nd, 2012 | 6:34 am
“Which is a less flattering way of comparing liberty as negative or positive – freedom or free goodies.”
I fancy it goes deeper than that and involves the whole concept of “limited government.”
To an American, freedom primarily means being free from interference, especially government interference. To a European, freedom primarily means sharing in the government.
The American Revolution was a rebellion against an external power, the British Crown; thereafter, strong local feeling often led to the Federal Government being seen as, in some sense, an external power.
In Europe, by contrast, in the wake of the French Revolution, government action came to be seen by the citizens, as the consummated result of their own organized wishes. Of course, Europeans can be very readily persuaded that self-serving deputies are betraying the people’s mandate, in the service of special interests; in fact, the political class is held in great contempt. Nevertheless, no one believes that curbing the powers of government is desirable, or even imaginable: the government is the appointee and agent of the people; to curb the government’s powers is to curb their own.
July 2nd, 2012 | 1:49 pm
@Artaban:”So why, Alberto, should we hold First Things to a higher standard than Congress?”
Because it’s such a low bar to overcome? ;D
July 4th, 2012 | 4:37 pm
To an American, freedom primarily means being free from interference, especially government interference. To a European, freedom primarily means sharing in the government.
If it were as simple as that, Germans would be happy to “share in” Greek economic woes.
Americans expect to “share in” their government as well. The government is supposed to be us, and we’re supposed to be it.
Rather, the “Enlightenment” model that has already taken over in Europe and is now trying to take over here is a model where the government is not something we “participate” in. It is something that participates in us, not the other way around.
It is our Daddy, and we are all one giant household. It will raise us, feed us, and tell us what thoughts are good to have. We are to rely on the government instead of relying on each other. When we ourselves become parents, we will nonetheless remain childlike, and depend on the government – it, not our child’s parents, will provide day care, collect the child support from our estranged other parent, and make all the decisions about every aspect of our child’s life – both the material (what our children eat) and the spiritual (what they will hold sacred).
That is only “freedom” if you define risk, potential, and adulthood itself as what one needs to be liberated from.
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