The concept of the United States as a voluntary union of independent, sovereign states, put forward by the Founders, died with the Civil War. No longer could the ‘several States’ go their own way. The States lost their final defense in the 17th Amendment, denying the State Legislature complete power over the choice of Senators, removed an important check on Federal power. Wickard v. Filburn ended the notion that private, individual activity was beyond the power of the Federal Government, changing forever the federal system into a national one, with few limitations. The final nail in the coffin for the Republic was in National Federation of Independent Business, et al., v. Sebelius (aka ‘Patient Protection and Affordable Care Act’, commonly known as ‘Obamacare’ to its critics), ruling that inactivity could be regulated (‘taxed’), thus removing any limits on the Federal government (As predicted in my post from last September on it being Illegal to Grow Your Own Food).
Briefly, and I will post in more detail on this, the Chief Justice, by using tortured language, changing meanings of words between sections of the opinion and ignoring the text and history of the Constitution, rules that the government could impose a tax on inactivity. Granted, he tried to limit the application of the Commerce Clause, and instead gave Congress effectively blanket authority to require any behavior by simply creating a tax. Now, rather than just the Commerce Clause, we have a second way for Congress to force individuals to act. In trying to ‘protect’ us from the Commerce Clause, Justice Roberts simply handed Congress a new hole through which to shove legislation.
There are a number of issues that need to be addressed here, and I will do this in separate posts (links will be added as I complete the posts).
- What is the difference in character of a ‘Federal’ vs. a ‘National’ government? Where is the locus of power in each? What did the Founders say abut this?
- Stare Decisis—How an important guiding principle enshrines bad decisions in the name of consistency and predictability. What if the Supreme Court gets it wrong?
- What is the origin of the Supreme Court’s power to overturn acts of Congress? A review of Marbury v. Madison.
- Where did it all start to go horribly wrong? A review of McCulloch v. Maryland
- The Civil War and the end of the States as sovereign, independent powers in a voluntary union
- The 16th and 17th Amendments—recipes for massive federal growth and a reduction in state power
- The end of the ‘Lochner‘ era and the growth of federal power. A review of Lochner and West Coast Hotel v. Parish.
- The ‘Switch in Time that Saved Nine’ and the growth of the administrative state.
- The ‘Commerce Clause’—state sovereignty on life support—From Wickard to Raich.
- The gutting of Article V of the Constitution, and the formation of a National Government and the death of the Republic—the power to tax anything, including inactivity.
- End game—the Bill of Rights as the only theoretical limit on national power. What happened to the 9th and 10th Amendments?
It will take some time to write the above (though some of it is discussed in prior articles), and I won’t necessarily do it in the order above. In addition, I’ll add to my previous commentary on the Constitution. Please follow my RSS Feed, my Twitter Feed, Google+ or Facebook.
As a final note, please remember that the analysis is not about whether or not a system of national health care is a good idea or not, but rather about whether it is permitted under the Constitution. A debate about whether or not we should have such a thing is appropriate, but as will be seen from my analysis, once we allow the ends to justify the means, the Constitution becomes a worthless scrap of paper, interesting only to historians as a political curiosity.
Updated 2012-07-02 to fix minor formatting, punctuation and grammar errors.
For all posts in this series, follow this link: End of the Republic