June 27, 2012
Precedential election
Thursday will be a big day, in the American Republic, if the Supreme Court indeed pronounces upon ObamaCare. Its decision is likely to include surprises, pleasant and unpleasant to all parties, and the arguments will themselves be unexpected to many. This is because the court currently has, among its nine members, perhaps six who are genuinely learned in the law, and therefore capable of thinking outside received media and academic categories.

It makes more sense to comment before the decision, than immediately afterwards, when pundits will fixate upon the immediate political implications. This is understandable in a presidential election year, when the fallout from the ruling will be substantial. The election result could depend on how the respective parties spin it — so that, for instance, apparent defeat in court could be turned into victory in November, or a close finish turned into a rout.

But to my mind, the benchmark the justices will inscribe may have a larger consequence, as precedent, farther down the road. For the question about the “individual mandate” — whether the U.S. federal government has the power, under the “commerce clause,” to compel the citizen to purchase something he does not want, and may consider to be morally abhorrent — goes to the heart of Roosevelt’s New Deal, and the American Nanny State that was erected upon it.

That commerce clause, as the other clauses of Article 1, Section 8 in the U.S. Constitution, was innocent and straightforward when written. Or rather, not innocent, for the section endowed the U.S. Congress with the power to prevent the states from creating their own customs barriers, currencies and distinct commercial laws. Without fully intending, the authors set up what was to become the largest free trading area in the history of the world, in terms of trade volume.

The U.S. became the power it is today because of its great wealth. Blessed it may be with huge natural resources, but its economy was not built, like that of Saudi Arabia, on merely tapping in. It was the existence of what became a vast internal market that made America such a hyperpower; and moreover, on balance, such a pacific force in world affairs. Two centuries later, the Europeans (and others) have tried to emulate this success by removing their own internal trading constraints; yet have failed, thanks to petty micromanagement on an equally vast scale.

“The Congress shall have power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” What an edifice was built upon those 21 words, or rather, nine words within them!

Taking the U.S. constitution as a whole, at face value, it seems obvious the American founders intended, in that clause as elsewhere, to place limitations upon government at all levels, and in this case to use the largest government to limit the smaller.

Time passes, and governments are not self-limiting by nature; especially a government whose legitimacy has come to rest entirely on democratic franchise. By the 1930s, the vogue for central intervention and immense welfare schemes — inspired by statist pioneers from Bismarck to Mussolini — began breaking through received constitutional barriers.

Big governments were supposed to have made the trains run on time, and performed similar feats of cunning. In the English-speaking world, Keynesianism was in full flower, advancing the fanciful notion that government could prime the pump, kick-start whole economies, and float us out of the Depression on a sea of public works.

The discovery that governments can stoke nothing, except inflation on both material and moral planes, has still not been assimilated. Throughout the western world, the intellectual classes continue to be raised in the illusion that political power is the essential creative force, and should therefore be the focus of a common “progressive” effort.

It is against this historical background that the U.S. Supreme Court is considering what may appear a circumscribed question of individual right. But it goes to the root.

Can a government, armed with a transient “democratic” mandate, impose anything on the individual citizen, in legal perpetuity? Is there any aspect of private life over which it does not wield absolute intrusive power? Do the citizen’s traditional legal immunities count for anything, or do “the people” always trump every person?

More: has any institution in society the right to independent existence, or is everything from a church to a business an extension of the central bureaucracy, subject to total regulation and constant audit?

Even by a decision of five to four, the Supreme Court will throw an extraordinary spanner into the machinery of U.S. government, if significant parts of ObamaCare are struck down. Conversely, even by five to four, a decision to uphold could effectively erase the U.S. citizen’s last line of defence against absolute power.

David Warren