American Independence Day and The Supreme Court Decision

There has been enough time now, the dust has settled around the Supreme Court decision on the constitutionality of Obamacare, the US-wide health care reform passed by Congress and signed into law more than two years ago.

Note: Today, I am going to be very explicit because I flatter myself that I have readers around the world who may not be completely familiar with American politics or with American political processes.

As usual, Rush Limbaugh, the much insulted, much decried and always underestimated conservative talk-show host has instantly demonstrated more lucidity that did pundits with better intellectual credentials: There is no silver lining, my friends.

Don’t confuse my meaning with others’. I think American society will survive well the disorder and the increase in cost of living the Obama health care reform will impose. I think health care will cost more and be of poorer quality for almost all Americans. The alleged uninsured were never really uncared for so, Obamacare was a solution to a non-problem in this respect. The most heart rendering parts of the descriptions justifying the reform in the first place turn out to be also urban myths. The main one concerns people with a pre-existing condition who couldn’t get coverage and therefore care. Never happened except in tiny numbers that could have been dealt with a with a simple high-risk insurance pool as those that states maintained for horrible drivers.

Yet, as I said, this is a prosperous society even in a period of crisis such as this one. The economy will not collapse. We will just all be a little less prosperous than we should have been. Our children will not experience the subtle optimism that comes from living in times of growth. But, I am still waiting for someone with a bucket and some rags to walk up to my door and to propose to clean all my windows for a set fee. And farmers in my area complain that they don’t have enough people to harvest their crops. Reports say that good pickers earn $12 -13/hour, far above the minimum wage, by the way. We are not poor by any standard. The worst application of Obamacare set of bad ideas is not going to make us poor, by any standard.

I believe that Obama’s co-plotters’ goal was always a nationalized, single-payer system. Unless the Republican Party obtains a vigorous big margin victory come November, in the Presidency and in both houses, 20% of the national economy will fall under federal management in short order. That’s “unless.”

What the US would look like with so much of its economy nationalized is not difficult to guess. It would look like Spain, perhaps. With luck, it would like Germany or like the Netherlands. Those are countries where a big role of government in the economy does not prevent periodic reforms that keep the statist system going. I have to say this explicitly because many conservatives live in a half-sleep inhabited by childish nightmares of ill-defined “socialism.” The fact is that Germany, and, to my taste, especially the Netherlands, are productive and civilized societies. They are not even close to hell. The problem with both countries, and with all Western European countries (with the possible curious exception of France), is that they are so lacking in vitality that they are disappearing before our eyes. Or they will become Muslim countries because Muslim immigrants there reproduce while other elements of the population don’t. (I wish I remembered which French-speaking Muslim commentator quipped that the Netherlands would be under Sharia law before Algeria.)

The third consequence of the Supreme Court decision regarding Obamacare is related to but distinct from the last. The Supreme Court showed that if a law is unconstitutional, as passed, you can always make it constitutional after the fact. You can do this even without tweaking any part of the text itself. You can do it by merely by re-naming a cat a dog. “No cats allowed” “No problem, this ain’t a cat, it’s really a dog.” No problem, the way you wrote the law, it’s not a penalty, it’s really a law. And there is no doubt that the federal government possesses broad taxation power.

The Supreme Court has paved the way for unlimited exercise of federal power. Most government action costs money. Until now, many believed that the federal government powers were constrained by two factors (2). First was the doctrine of enumerated power: The Fed. Government may not do what is not explicitly given to it to do. Second, there is always a political cost involved in creating new taxes or in raising old ones in support of any new policy, however constitutional the policy may be in itself. The recent Supreme Court decision showed the current and any future federal government at once how to by-pass enumerated powers and how to sidestep the risks inherent in raising taxes.

It’s not obvious to me that the Republic can survive this new attack on constitutional government. There will be a United States of America, no doubt but it will be a sort of common hybrid. It will not be the Republic of 1776.

About jacquesdelacroix

I am a sociologist, a short-story writer, and a blogger (Facts Matter and Notes On Liberty) in Santa Cruz, California.
This entry was posted in Current Events, Socio-Political Essays. Bookmark the permalink.

32 Responses to American Independence Day and The Supreme Court Decision

  1. Terry Amburgey says:

    What other pernicious supreme court decisions might be reversed with a republican administration? Brown versus Board of Education? Marbury versus Madison? As usual, you are crystal clear in your writing, conservatives want to return the country to 1776. Wouldn’t it be great to get rid of the constitution that causes so many problems and re-adopt the Articles of Confederation?

  2. Terry Amburgey says:

    The more I think about it, the more brilliant it seems; going back to 1776 and replacing the constitution with the articles of confederation answers the desires of all factions within the republican party. Nothing to prohibit the estblishment of christian theocracies in the states. No issues of collective bargaining and minimum wages, slavery can make a comeback. Those uppity feminazi types won’t have voting rights. Illegal immigration in the west is solved because the louisiana purchase would be null & void so nothing west of the mississippi river would even be a state. No central bank so the paulistas would be happy…..yup, I see why going back to 1776 is so appealing to conservatives.

    • David says:

      Terry, please educate me in detailing who would like to go back to 1776. I fail to see the relevance of your posting. If I’m following you correctly, then anyone who disagrees with this particular Supreme Court wishes the country to return to the late 18th century. Of course, I’d ask you to carefully examine your initial reaction to the pundits saying that it was likely that ObamaCare would have been shot down by the Supreme Court; largely because I suspect that you would’ve made strong claims of Judicial activism (as I suspect the Obama administration was planning on, in that event) based on the content and bend of your statements here.

  3. Terry Amburgey says:

    Hi David. Who wants to go back to 1776? Jacques does. In his above post he writes: “It’s not obvious to me that the Republic can survive this new attack on constitutional government. There will be a United States of America, no doubt but it will be a sort of common hybrid. It will not be the Republic of 1776.” I think my response is relevant, and there’s the direct quote. As for judicial activism, it’s pretty clear that everyone defines ‘activism’ as ‘a decision I don’t like’. Where were all the teapublican complaints about activism with Citizens United v. Federal Election Commission? I personally don’t like this decision because I think it should’ve been upheld on the basis of the commerce clause. Unlike Jacques how it was upheld dosn’t bug me too much. If it walks like a duck, quacks like a duck, and looks like a duck I’m willing to say it’s a duck. Same for taxes. He argues that soon we’ll have to deal wih everything being called a duck but as sometimes happens, I don’t agree.

    • David says:

      Terry,

      I think you’re taking a short-sighted view of JD saying it won’t be the Republic of 1776. I don’t think that JD wants to go back to 1776, I think that he’s saying (and I’m sure he will correct me if I misunderstood him) that the Federal Government may be able to evade the constitutional constrictions of the enumerated powers because of the precedence of this case, meaning that the Federal Government will have unlimited reach and powers, which is very clearly what the founding fathers drafted the constitution to prevent.

      • jacquesdelacroix says:

        Hi, you all.

        Terry is right of course, but he is wrong to be right. as is often the case. I should have said, “…the Republic that was born in 177…..” That would leave room for the good developments that followed including the US Constitution of negative rights and the Bill of Rights.

        There is no doubt in my mind that there are irreconciliable differences around the Constitution. I think Terry is telling us between the lines that the commerce clause allows the federal government pretty much anything, except perhaps quartering soldiers in private houses. I am past arguing that interpretation because I believe it’s based on temperament rather than on analysis. And the liberal temperament is merely a chain of loosely linked emotions.

        In general, I don’t try much to influence old men (old like me). I focus on trying to help youngish people better understand their own positions. I prefer investment for the longer run. I also hope that every so often, I help pull to the conservative side someone who is on the cusp for reasons that have nothing to do with me.

        Terry is a good contributor because he is an intelligent and well-informed version of the American liberal. Thanks to him, I am not often accused to beating up on kindergartners. I also suspect is sometimes embarrassed by conventional liberal postures. But, that’s just a guess

  4. Terry Amburgey says:

    To say that I’m sometimes embarrassed by conventional liberal postures is a vast understatement. Like Jacques, I’ve spent the vast majority of my life in academia…the ultimate bastion of political correctness. However, idiocy on the part of liberals is no excuse for idiocy on the part of conservatives; I was never impressed when my kids trotted out the ‘all the other kids are ‘

  5. Terry Amburgey says:

    Hi again David. It’s a bit late to complain about the broad reach of the commerce clause, that horse escaped the barn a long time ago….Wickard v. Filburn, 317 U.S. 111 (1942).

    • jacquesdelacroix says:

      Neither WSJ commentators not MSNBC seem to think the horse is gone. Please, give a summary of the case, a leader. Don’t try to force to go look it up with the real danger that it does not say what you imply it says, or with the real rick that we will not understand what it says.

      I, for one, often don’t know how to read legal opinions but I know who served me well the past and who deceived me. There are only tow major newspapers, one of which does not have the name “Jason Blair” in its archives. I go with the others.

      LIberals insist I must be a legal expert to have a constitutional opinion. Climate change zealots insist I must earn a PhD in climate science (from the correct department) to have the right to argue that the Ocean (singular) rises just about to the same extent everywhere.

      Bullshit!

  6. Terry Amburgey says:

    “A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

    The Supreme Court interpreted the United States Constitution’s Commerce Clause under Article 1 Section 8, which permits the United States Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The Court decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn’s production could be regulated by the federal government.” [wikipedia] A farmer couldn’t grow wheat for his own use because it affected a national market.

    The ACA made the same argument for the national health insurance market and those who could afford to purchase and opted to go to emergency rooms and pass the cost onto taxpayers.

    BTW it’s ironic that I’m still doing Jacques’ research for him only now I do it for free🙂

    • jacquesdelacroix says:

      Terry: Thank you for doing my “my” research for me. You are very generous.

      It’s a good story I had forgotten. It’s also pretty irrelevant right now since the Supreme Court Majority recently again affirmed that the commerce clause is severely limited in its application.

      • David says:

        At Terry, there isn’t much I could have done about that particular case, seeing how my parents (much less myself) weren’t even born yet when that case was decided. I suspect that there is an overreach on the part of the government (no surprise there) when they try to make laws and find a way to fit them as being part of commerce. Especially since not engaging in commerce (i.e. not buying health insurance) has become possible under the commerce clause, so long as that non-action is taxed by Congress. Which, in my opinion, opens the door to many possibilities for future Congresses and Presidents. Personally, I’m waiting for my very breathing to be taxed. I’ll get taxed when I stop breathing, so I see no reason why they won’t find a way to tax me for engaging in Particulate Commerce (carbon insurance, anybody?). Sadly, like health insurance, I don’t see anyway of absconding without the necessity for death. And death isn’t very conducive to having an active life.

      • jacquesdelacroix says:

        The main question to Terry (whom I often use as a surrogate because he is a well-educated grown up) is this:

        Do you care if what you say is in bad faith? (You are n bad faith when you affirm something that you know in your heart not to be true.)

  7. Pingback: American Independence Day and The Supreme Court Decision « Notes On Liberty

  8. Terry Amburgey says:

    In general yes. There are exceptions; for years I affirmed the imminent visit of Santa Claus even though I knew that I would be the one placing presents under the tree. I’ve told my share of ‘white lies’ when I thought they were justified. I won’t claim that I’ve never told ‘non-white lies’ but I’m embarrassed and ashamed to have done so. I do care about truth and honesty.

    • jacquesdelacroix says:

      Good answer, Terry. Have you stopped completely telling lies that make you ashamed?

      And beyond lies, there is fudging that ads up to lies, in quantities. I am not talking especially about you but about an idealized liberal intellectual. My experience in academia, is that when you press such people, they change the subject or they have an urgent appointment. Have you known that kind of academic yourself or is it just me?

      I think there are pretty much no white lies to people over ten years of age. Even to those, I am plagiarizing here a recent issue of the Atlantic Monthly, here is just about the only acceptable white lie: When the ice-cream truck bell rings, it means the truck is out of ice-cream.

      • Terry Amburgey says:

        That’s a tough one. The best answer is to mimic a currently sober alcoholic and make no claims on the future: I’ve not told any lies for over a decade [the embarrasing, shameful ones]. I’ve known many of the academics you’ve described although I must say that I’ve seen a great deal of variation across universities. As to the 10 years of age cutoff….I guess it depends on how you categorize telling your wife that the pants look great/the hairstyle is wonderful/the dinner is delectable. Is it a white lie because it makes the other person feel good or a regular lie because of the strong element of self preservation?

      • jacquesdelacroix says:

        First: I think lying to your wife about the pants is a lie. It should not be done. Lying is like violence: Sensitivity to untruths erodes if you sue untruth enough. Much lying, as in the liberal media is simply a bad habit until it explodes into areal crisis as with the New York Times and Jason Blair.

        Second: I am interested in your statement about lying variations across different universities. I have never thought about it. I part it’s because I lack geographic experience.

  9. This discussion is what I enjoy about run-of-the-mill liberals and conservatives. It’s also what i enjoy about being a libertarian.

    Dr. J writes:

    There is no silver lining, my friends.

    Sure there is, even with something as horrible as ObamaCare.

    Here is why: the liberal commentator on this blog with impeccable liberal credentials (including advocating bombing Syria for Syria’s sake) admits:

    I personally don’t like this decision because I think it should’ve been upheld on the basis of the commerce clause.

    This reply is the silver lining. Yes, we are going to have to pay a high price for the upcoming ObamaCare tax hikes, but in the long run this ruling is a step in the right direction.

    Why? Because of ObamaCare’s upcoming tax hikes and because the federal government can’t use the commerce clause to dictate its will onto the people anymore. Yes, Washington has the power to tax (always has), but now it is going to have to frame its spending proposals in terms of taxes rather than in terms of the post-New Deal commerce clause. Think about it. Long and hard (that’s what she said).

    • Terry Amburgey says:

      Hi again Brandon. Thanks for the attribution of impeccable liberal credentials. It may be one of those little white lies mentioned above just to make me feel good but I’ll take it anyway🙂 I think your proclamation of the death of the commerce clause is premature. Consider the flip-flop of Rep. Steve King….when it comes to his state’s narrow economic interest in eggs he’s now a huge fan of the commerce clause. http://www.dailykos.com/story/2012/07/14/1109675/-Iowa-s-Steve-King-finally-plucks-the-chicken?detail=hide

    • T.A.:

      I’m still trying to figure out a better nickname for you, so for now you’re just the liberal commentator with impeccable liberal credentials (including advocating bombing Syria for Syria’s sake).

      Lots of politicians like the commerce clause. Tullock and Nobel Laureate Buchanan wrote about why back in the 1960’s. All the more reason to celebrate this ruling (though I would have preferred it if Roberts had had the balls to strike the whole thing down at once rather than dismantle the New Deal piece-by-piece).

  10. Terry Amburgey says:

    Just to keep my credentials impeccable, a quote from J.K. Galbraith that seems apt for the libertarian version of conservatism. “The modern conservative is engaged in one of man’s oldest exercises in moral philosophy… the search for a superior moral justification for selfishness.”

    • jacquesdelacroix says:

      Sure thing, sounds a little bit witty but what do you think?

      The converse of selfish is generous, isn’t it? You think it’s generous to use force to give away some other guy’s money ?

  11. Terry Amburgey says:

    Well, for better or worse, I have extensive geographic experience having been an academic gypsy for so many years. In my experience the University of Wisconsin & Madison was the worst for overall maddening political correctness. University of Kentucky was maybe the best although Lexington was the worst for conservative pinheads. I’ll tell you about the cross-burning in my suburban neighborhood sometime.

    My thinking about selfishness is close to that of the transaction-cost economists [ala Oliver Williamson]. Self interest is one thing, opportunism is another. Humankind is descended from social, pack primates not from solo predators. Conservatives have an undersocialized view of people. Even former sociologists that should know better.

    • jacquesdelacroix says:

      Prof. Terry: I already like the cross-burning story. Please, don’t wait to tell it.

      The accusation of having an undersocialized view of people would hurt if it were correct. It’s not.
      I think a couple of million years of socialization made us altruistic primates.
      That’s why we shouldn’t be forced. It comes naturally through negotiations (including contracts) or it should not come at all.

      By the way, yon forgot to answer my straightforward, simple question. Here it goes again: Is it generous to forces other to give to third parties under threat of violence?

      Is the question too simple to be worth answering?

      I think liberals talk mostly slogans. It’s worth stopping them to ask them whether they will endorse their own slogans or not.

      • Terry Amburgey says:

        “Is it generous to forces other to give to third parties under threat of violence?” I want to give a qualified yes but I know you won’t accept it so: yes. I think generous is not the right word, I would substitute the word appropriate. Two examples, the first doesn’t make me queasy but the second does. The first instance has to do with ‘public goods’ and the specific instance is National Defense. Brandon doesn’t doesn’t want to pay taxes for defense but there is no way to exclude him. If he doesn’t pay he gets the benefit of defense along with everyone else but free-rides on everyone else. I feel quite comfortable taking his money under threat of violence. The second is the doctrine of eminent domain, “…an action of the state to seize a citizen’s private property, expropriate property, or seize a citizen’s rights in property with due monetary compensation, but without the owner’s consent.” Typically for the creation of a public good such as building a road, bridge etc. This one makes me very queasy since there have been some outrageous abuses. Nonetheless, given the binary choice of having it or not, I say have it. Is that a satisfactory answer?

      • jacquesdelacroix says:

        Prof. T. My question was prompted by a quote you gave uninvited. The quote was about selfishness and therefore about generosity. You are changing the subject as is usual with liberals when they have to answer straightforwardly straightforward questions.

        You could easily have started the conversation about appropriateness. You did not because you were trying to gain the upper hand cheaply, with a single sentence. You failed.

      • T.A.:

        I’m still trying to come up with a good nickname. In the meantime…

        The first instance has to do with ‘public goods’ and the specific instance is National Defense. Brandon doesn’t doesn’t want to pay taxes for defense but there is no way to exclude him. If he doesn’t pay he gets the benefit of defense along with everyone else but free-rides on everyone else. I feel quite comfortable taking his money under threat of violence.

        Benefits? Is Canada going to attack and invade us sometime soon?

        In this case it is not Brandon who is free riding, but rather the many citizens of states that don’t pay taxes to the American federal government who are able to ride for free.

        I would be willing to accept this argument if our military was focused on national defense, or even if citizens of other states coughed up their fair share, but alas. I have to wake up on some mornings and watch our commercial buildings getting attacked by hitherto unknown enemies (or former allies) of our government.

        Unfortunately, a government monopoly of a good ensures that Brandon and everybody else has no say in the decision-making process. All the more reason to halve military spending and bring our troops home from Europe, East Asia, East Africa and the rest of the Muslim world tomorrow! It would help if the government actually declared war before actually going to war.

        This is what bothers me about Democrats in particular and liberals in general. You would all be more than willing to steal my money and give it to a cause that you feel is just, whether or not the facts are consistent with your feelings.

        The second is the doctrine of eminent domain, “…an action of the state to seize a citizen’s private property, expropriate property, or seize a citizen’s rights in property with due monetary compensation, but without the owner’s consent.” Typically for the creation of a public good such as building a road, bridge etc.

        At least you’re honest…

  12. Terry Amburgey says:

    Sigh. Yet again entangled in the simplistic, black & white thinking that is so common among conservatives. Subtlety didn’t work so I’ll be blunt. Generosity & selfishness don’t capture the wide gamut of possibilities, just as ‘hot’ and ‘cold’ don’t capture all temperatures. Since conceptual complexity is difficult for the conservative mind let’s say there are 3 categories: selfish/normal/generous. I tried to substitute ‘appropriate’ to capture the middle ground but you’ll have none of that. Not-selfish doesn’t have to be ‘generous’ it can also be ‘normal’ in a world which has more complexity than black & white.

    @Brandon. Don’t diss Canada. Canada kicked the ass of the U.S.A. in the war of 1812 and the Candian armed forces still have the same weapons🙂
    BTW keep looking for that nickname. I’m fond of ‘impeccable liberal credentials’ but I recognize that’s too long for a nickname😦

    • jacquesdelacroix says:

      One more time, Terry: You offered the terse Galbraith quote. That was surely simplistic. Is anyone bound to answer with complex and sophisticated arguments off-the-cuff would-be witty shots? Many liberals practice drive-bay argumentation and they begin whining as soon as someone shoots back. That’s because they learn their politics from late night comedy shows where no replies are allowed.

      Beside, some things are black and white. Here is one: Forcing someone else to relinquish the fruit of his labors to strangers under threat of prison is not (NOT) generous. That’s the truth irrespective of what sophisticated justifications one may find for the practice.

      What is generous is voluntarily to give away the fruits of one’s own labor to strangers. How about it? What’s holding you back? If I went to your house, I am certain I would find some valuable stuff you don’t really need to function. I could guide you in your give-away plan. When do we begin? How did you get the exemption?

  13. Terry Amburgey says:

    “Forcing someone else to relinquish the fruit of his labors to strangers under threat of prison is not (NOT) generous. That’s the truth irrespective of what sophisticated justifications one may find for the practice.” No, it’s not generous but that is irrelevant. In some circumstances it is appropriate [see above]. So again you try to force the false dichotomy of black&white. It won’t work.
    BTW, I noticed that you didn’t attempt to refute the quote from Galbraith; in fact you engaged in the very practice he pointed out, an attempt to find a moral justification for selfishness.
    “If I went to your house, I am certain I would find some valuable stuff you don’t really need to function. I could guide you in your give-away plan. When do we begin?” That’s a very generous offer. I suggest we begin with the contents of our garage. What it lacks in value it makes up with volume. Bring a large truck.
    “How did you get the exemption?” What exemption are you talking about? I certainly have no exemption from paying the fruits of my labor to strangers. I pay much higher taxes in Canada than I would in the U.S.

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