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When the U.S. Supreme Court announced its Obamacare decision, many conservatives professed to be shocked, even stunned, to hear that G.W. Bush appointee John Roberts wrote the decision in which he and the Supreme Court’s anti-constitutional leftists upheld the individual mandate provision that, for many conservatives, is its most offensive feature. Some so-called conservatives, mechanistically clinging to the GOP delusion, have scrambled like startled hens, awkwardly looking for some rationale that allows them to portray Roberts’ abandonment of individual economic liberty in a positive light. They are especially anxious to do so because Mitt Romney’s campaign has touted Roberts as the model for the kind of judicial appointments he intends to make as president. By joining the leftist gaggle in support of Obamacare, Roberts confirms what Romney’s record of leftist judicial appointments as governor of Massachusetts already suggests; conservatives who put any faith in his professions of respect for the principle of limited government will soon find that they have been decisively betrayed.
So the dupes of the GOP’s crypto-socialist elitist leadership breathlessly proffer the explanation that Roberts’ Obamacare decision is a brilliant maneuver intended to corner Obama politically by forcing him to defend what Roberts’ judicial sleight-of-hand has magically transformed into an enormous tax increase. To prove that he is a conservative still worthy of trust they are willing to suggest that he is a partisan, politically motivated justice unworthy of the high constitutional function he has sworn faithfully to carry out.
In the opinion he wrote for the court, Roberts argues that the mandate, though not warranted by the Constitution’s heretofore much abused “commerce clause,” is constitutional as a use of Congress’ taxing power. This is a breathtakingly novel and tyrannically perverse understanding of taxation. Judge Andrew Napolitano accurately describes it as “the court’s unprecedented pronouncement that Congress’ power to tax is unlimited.” I have no doubt that this understanding of taxation has some precedents in the language by which conquerors have signified the penal tribute they will exact from the subjects created by their success at arms. But when Americans discuss taxation, we are referring, as the nation’s founders did, to one of the various means of raising revenue for the specific purposes laid out in the Constitution and consistent with the general purpose of the institution of government, which is to secure our God-endowed unalienable rights.
When Article I, Section 8, of the Constitution specifies that “Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises,” it explicitly places that power in the context of paying the debts and providing for the “Common Defense and general Welfare” of the United States. Its language repeats the words of the Preamble, wherein the people of the United States make clear the aims of the Constitution they ordain and establish for the United States, which include “securing the blessings of liberty.” This latter aim can in no way be made consistent with the view that any of the powers granted to Congress encompasses an unlimited prerogative to usurp the individual economic choice that is among the chief blessings of liberty, or abuse the rubric of taxation to establish a regime of positive coercion intended to circumvent otherwise recognized and acknowledged constitutional constraints.
The key to Roberts’ judicial sleight-of-hand lies in his disregard for the fact that the Constitution’s constraints upon government derive, in the first instance, from the requirement that government respect the God-endowed rights of the people. These rights include every action that is required to fulfill the obligations defined by the natural condition of our life as it comes from the hand of the Creator. These include the right conscientiously to decide how best to satisfy our God-given responsibility for our physical well-being, for example, feeding, clothing and sheltering the body that is the locus of that responsibility. Except on account of their natural relations (as for example the relationship between parent and child), or with their particular agreement, no human being may justly claim to make such decisions for others. But the powers we do not have as individuals we cannot delegate to the government instituted to act for us as a community. Thus, though government may tax us in order to support the powers we can and do properly delegate, it cannot do so to coerce our use of the powers we naturally retain, for to do so turns the power to tax into the power to enslave, which power cannot be just because liberty has been destroyed for all those subject to it.
The whole point of constitutional government is to define and limit, with respect to our God-endowed rights, what government may and may not do with the powers it derives from the consent of the governed. The Constitution represents the terms on which that consent is obtained. An understanding of taxation that allows the systematic use of government’s coercive power to tax in order to enforce behavior in ways that surpass what the Constitution prescribes essentially destroys constitutional government, transforming it from an instrument for preserving our God-endowed liberty into a weapon most useful in its destruction. Thereafter, the outward observance of constitutional forms is a calmative pantomime intended to secure the more docile submission of a people who have become no better than slaves.
Some GOP hacks are blithely celebrating the Roberts Court’s despotic repurposing of taxation as some kind of political opportunity. This is like the magician who directs our attention toward one thing in order to distract us from what is really taking place. The truth is that if this outrageous and perverse repurposing of taxation is allowed to stand, Americans will have been robbed of what Lincoln called the right to eat the bread earned in the sweat of our brows. The government will dictate the eating. Moreover, we will be subject to a government unlimited in its power to extort our obedience to its will in every detail of life. Chief Justice Marshall observed that “the power to tax involves the power to destroy.” Now Chief Justice Roberts and his elite-faction cohorts mean to use the threat of that destruction to endow the U.S. government with an unlimited power to command. Thus ends America’s decent, free way of life.