[First posted at The American Culture.]
Thursday’s U.S. Supreme Court decision on the Affordable Care Act vividly highlights a basic cultural division in the contemporary United States. One might well call it a schism, for it is that distinct and drastic.
One’s opinion of the merits of the law—regardless of the interesting discussion of its constitutionality—go a long way toward indicating one’s political-social-cultural mentality, one’s basic beliefs about liberty, personal responsibility, and the uses of force.
It is a division between classical liberalism and unchecked democracy.
As I have expressed consistently over the years, my belief is that individual liberty and personal responsibility are right, and that no amount of utilitarian concerns can ever change that. For a group of people to gang up on others in order to force them to provide presumed benefits for still-other people is to me an abomination. And that, in sum, is what governments tend to do, in the name of democracy. And when they do so, they are fundamentally illegitimate and tyrannical, regardless of whether one thinks the policies will do some good.
When Theodore Roosevelt made his statement of the foundations for progressivism in his “A Charter for Democracy” address before the Ohio Constitutional Convention at Columbus on February 21, 1912, he stated quite clearly what democracy is all about:
We stand for the rights of property, but we stand even more for the rights of man. We will protect the rights of the wealthy man, but we maintain that he holds his wealth subject to the general right of the community to regulate its business use as the public welfare requires. . . .
Make it perfectly clear that on every point of this kind it is your intention that the people shall decide for themselves how far the laws to achieve their purposes shall go, and that their decision shall be binding upon every citizen in the State, official or non-official, unless, of course, the Supreme Court of the nation in any given case decides otherwise.
As Roosevelt freely acknowledged, there is nowhere statism cannot go. This political philosophy, which might well be dubbed Confiscatory Democracy, has been the common parlance of U.S. politics for the past century, and the central force for its implementation was the Sixteenth Amendment.
In considering any particular policy issue or cultural trend, for me the test is always this: does this give more power to individuals to make their own choices and live by the consequences, or does it take away such power? Seeing the Supreme Court’s decision in the Affordable Care Act in such a light, makes both its policy outcomes and political implications clear.
As Dickens might have said, it was the best of possible outcomes for the law’s supporters, and it was the worst of possible outcomes for them. The individual mandate was upheld, but only as a tax—which makes it much easier to repeal, in procedural terms. That also makes it clear what is at the heart of Obamacare: a huge new tax on every American citizen. In addition, the Court found the Medicaid expansion—which is also central to the bill—cannot go forward as written. The bill was hence deemed constitutional but made thoroughly unworkable and more easily repealed.
In sum: the Court’s decision is not as much of a gift to the progressives and other lovers of confiscatory democracy as it might seem to be. In fact it could be a big part of their final undoing.
In distinct contrast with the ACA and the Court majority’s finding that it is constitutional under the federal government’s taxing power (which, though baneful, is indeed a plausible understanding of the Sixteenth Amendment), the dissent by Scalia, Kennedy, Thomas, and Alito is an inspiring statement of the constitutional foundations of our once-limited government.
In sum, I don’t think the Court’s decision is particularly weird, given how far this nation has wandered from the intent of the Constitution over the past century. The reality is this: the Sixteenth Amendment makes possible pretty much anything Congress wants to do. Roberts has at least made that clear, for those who didn’t realize it before.
Our government is tragically unbalanced and fundamentally illiberal because of that Amendment. Until the taxing power of Congress is restrained in a fundamental way—not a limit on how much, but on how at all—this is the world we shall be forced to live in: a system of confiscatory democracy.