As I watched the news on Obamacare and the Supreme Court, what came to mind was Passover, with its focus on freedom and liberty.
In the oral arguments focusing on the mandate, the government claims the commerce clause authorizes it to require individuals to purchase health insurance or be subject to a financial penalty. In response, Justice Anthony Kennedy, presumed by many to be the “swing vote,” asked the key constitutional question: Can you create commerce in order to regulate it? In other words, while it may be clearly within the commerce clause to regulate activities conducted pursuant to a contract between A and B, does the government have the power to coerce A and B to enter into the contract in the first place?
Later in the argument, Kennedy says: “But the reason this is concerning is because [the mandate] requires an individual to do an affirmative act…and here the government is saying that the federal government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the federal government to the individual in a very fundamental way.”
I came to understand why even liberal commentators considered the government case a “train wreck.” The government could not articulate a limiting principle preventing it, for example, from requiring a person to pay a fine to the federal government if that person bought a foreign car, or failed to buy a car in the first place, or, as Justice Antonin Scalia said, failed to buy broccoli.
On March 23, The Wall Street Journal observed that “the powers the Obama administration is claiming change the structure of the American government as it has existed for 225 years.” On March 29, the Journal further observed: “The Obama administration’s arguments in favor of the mandate to buy health insurance or pay a penalty stand exposed as a demand for unlimited federal power…. The President and Congress make rules for actions and objects. Only states make rules regulating the behavior of citizens, except for military conscription and jury duty.”
Now for Passover. As I read these arguments, I could not fathom why Jews, of all people, given all they have achieved under the American political system, would not fear a fundamental expansion of centralized federal power along with the political philosophy it represents.
The political philosopher, J.L. Talmon, in his Origins of Totalitarian Democracy, distinguished “liberal democracy” from “totalitarian democracy.” Liberal democracy finds the essence of freedom in spontaneity and the absence of coercion. Totalitarian democracy believes freedom to be realized only in the pursuit and attainment of an absolute collective purpose, thereby representing a form of political messianism.
The U.S. Constitution was not designed to make the case for government but to make the positive case for personal liberty and freedom in the liberal democratic tradition. Its primary purpose was to protect the individual from government intruding on certain basic liberties. It is a constitution based on limited enumerated powers the states conferred on the federal government. The inversion of rights from safeguards to entitlements is a slippery slope toward an undermining of fundamental constitutional guarantees. Libertarians view this as tyranny’s disguise.
House Speaker Nancy Pelosi was a key author of the bill which, as she told reporters, had to pass “so you can find out what is in it.” In response to an inquiry from CNSNews.com as to whether Obamacare was constitutional, she responded, “Are you serious?,” thereby revealing a total lack of understanding as to the grounds for a constitutional challenge.
In a news conference after the oral arguments, President Obama expressed confidence that the Supreme Court “would not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” The president then opined that it would be judicial activism if “an unelected group of people would somehow overturn a duly constituted and passed law.”
One might have hoped that President Obama, a former senior lecturer in constitutional law at the University of Chicago Law School, consulted Federalist No. 78, which preceded the famous case of Marbury vs. Madison. Wrote Alexander Hamilton, “courts were designed to be an intermediary body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.”
The Court’s authority stems from the Constitution and the writings of the Founders. The Court’s role is part of the bedrock of liberty on which our Republic was founded. It is most unfortunate that the president disrespected these principles. But when the government knows what you need, and is ready to coerce you into contractual relations to give it to you, who has time for such considerations?
Fixing the problems with our health-care system is a critical national issue requiring a well thought-out approach. Obamacare risks being a cure worse than the disease. Funding health-care costs out of tax revenues respects constitutional principles. We will soon find out whether funding it by forcing people into contractual relations meets with the approval of the Supreme Court. There is quite a lot at stake.
We all need heed the words of Jonathan Sacks, Chief Rabbi of Great Britain, from his Haggada commentary: “The ideal of the Torah — lofty but not utopian — is of limited government accompanied by personal self-government….” And as the ancient Greek philosopher Plutarch warned: “The real destroyer of the liberties of the people is he who spreads among them bounties, donations and benefits.”