Three months ago, I quoted George Jonas on the 30th anniversary of Canada’s ghastly “Charter of Rights and Freedoms”: “There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself,” wrote Jonas. “It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them.”
For longer than one might have expected, the U.S. Constitution was a happy exception to that general rule — until, that is, the contortions required to reconcile a republic of limited government with the ambitions of statism rendered U.S. constitutionalism increasingly absurd. As I also wrote three months ago (yes, yes, don’t worry, there’s a couple of sentences of new material in amongst all the I-told-you-so stuff), “The United States is the only Western nation in which our rulers invoke the Constitution for the purpose of overriding it — or, at any rate, torturing its language beyond repair.”
Thus, the Supreme Court’s Obamacare decision. No one could seriously argue that the Framers’ vision of the Constitution intended to provide philosophical license for a national government (“federal” hardly seems le mot juste) whose treasury could fine you for declining to make provision for a chest infection that meets the approval of the Commissar of Ailments. Yet on Thursday Chief Justice Roberts did just that. And conservatives are supposed to be encouraged that he did so by appeal to the Constitution’s taxing authority rather than by a massive expansion of the Commerce Clause. Indeed, several respected commentators portrayed the Chief Justice’s majority vote as a finely calibrated act of constitutional seemliness.
Great. That and $4.95 will get you a decaf macchiato in the Supreme Court snack bar. There’s nothing constitutionally seemly about a Court decision that says this law is only legal because the people’s representatives flat-out lied to the people when they passed it. Throughout the Obamacare debates, Democrats explicitly denied it was a massive tax hike: “You reject that it’s a tax increase?” George Stephanopoulos demanded to know on ABC. “I absolutely reject that notion,” replied the president. Yet “that notion” is the only one that would fly at the Supreme Court. The jurists found the individual mandate constitutional by declining to recognize it as a mandate at all. For Roberts’ defenders on the right, this is apparently a daring rout of Big Government: Like Nelson contemplating the Danish fleet at the Battle of Copenhagen, the chief justice held the telescope to his blind eye and declared, “I see no ships.”
If it looks like a duck, quacks like a duck, but a handful of judges rule that it’s a rare breed of elk, then all’s well. The chief justice, on the other hand, looks, quacks, and walks like the Queen in Alice in Wonderland: “Sentence first — verdict afterwards.” The Obama administration sentences you to a $695 fine, and a couple of years later the queens of the Supreme Court explain what it is you’re guilty of. A. V. Dicey’s famous antipathy to written constitutions and preference for what he called (in a then largely unfamiliar coinage) the “rule of law” has never looked better.
Instead, constitutionalists argue that Chief Roberts has won a Nelson-like victory over the ever-expanding Commerce Clause. Big deal — for is his new, approved, enhanced taxing power not equally expandable? And, in attempting to pass off a confiscatory penalty as a legitimate tax, Roberts inflicts damage on the most basic legal principles.