A government of laws, not of men

Critical to the theory and legitimacy of modern democratic government is the idea that no one is above the law. Thomas Paine wrote in his pamphlet Common Sense: “In America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.” John Adams codified this principle in the Massachusetts Constitution in 1780 by seeking to establish “a government of laws and not of men.” The Founders thought long and hard about the issue and realized that the only way to assure the “separate and equal station” of all people was to govern through objective laws that applied equally to everybody.

236 years on, have we truly upheld this principle of governing by laws rather than by the whims of powerful men? If the Supreme Court’s ruling on the “Affordable” Healthcare Act is any measure, we have failed completely, and jeopardized individual liberty in the process.

Justice John Roberts’ majority opinion is bizarre to say the least. The Affordable Healthcare Act legislates that Americans who don’t purchase health insurance will be forced to pay a penalty, an unprecedented act of Congressional compulsion — the first time that a law has ever penalized a private citizen’s decision not to engage in a commercial transaction. Sure, the state can force you to buy car insurance, but this is not the same – if you lose your job and you’re hard up, you can stop driving, cancel your insurance, and take the bus to your job interviews. The only way you can opt out of the Affordable Healthcare Act’s mandate is to stop breathing. From cradle to grave, they have you.

The defense made the case that this mandate was justifiable under the Constitution’s oft-cited Commerce Clause, under which considerable authority to regulate private commercial transactions has already been granted to Congress: “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States.” But this clause grants the power to regulate, not to compel, and the AHA compels: it creates commerce where commerce did not previously exist. John Roberts’ opinion upheld the view that the Commerce Clause doesn’t grant Congress the authority to penalize Americans who don’t purchase health insurance. Congress cannot order us to purchase a private service.

But then the opinion took a bizarre turn: Roberts held that Congress did have the power to enact this mandate as a tax. This is doublespeak of the baldest kind: no matter what Roberts calls it, the mandate is a penalty for non-compliance. To say that threatening to tax us if we don’t comply isn’t a way of ordering us to comply is utter nonsense.

So now the Court has upheld the law as a tax, even though it claims it’s not a tax, its advocates insisted it wasn’t a tax, and it fits none of the forms of taxation defined and permitted by the Constitution (direct, excise, and income). There is nothing constitutional about this mandate. If it walks like a duck and quacks like a duck, it’s a god damned duck: this ruling is flimsy and illegitimate. To those who claim that the Court has the final say on what is constitutional, I say that the Court adjudicates only with the consent of the governed. We the people have given our consent to be governed only by law — not by men who break it for the sake of political convenience.

For this ruling is in fact a political decision. Roberts feared what the reaction of the AHA’s supporters would be if a conservative majority struck down a law so closely associated with the President and the Left. While he may have had good intentions in seeking to avoid a perception of bias, this was an act of weakness that betrayed both the letter and the spirit of the law which ensures all Americans equal treatment by the government. Enemies of the rule of law have now seen that if they push hard enough, even the Supreme Court will not stop them from trampling the Constitution, and having won this victory, they will undoubtedly test the limits again.

The Supreme Court sold out. It can no longer be trusted to uphold the Constitution when a vocal and powerful minority seeks to undermine it. Men are now dominant in our government, not laws, and woe to those who are different from the men in power — because nothing can stop them now.