July 4, 2012
Sophistry & power
Smart people are dangerous, as the English language has long proposed, through sayings such as "too clever by half." More precisely, flourishes of intelligence unrestrained by humility are the formula for disaster. The Greeks understood this, in their concept of "hubris." The Christians also twigged, through many centuries. But post-Enlightenment man does not like to acknowledge his own limitations. He promotes and rewards "how to" as an end in itself. He thinks too fast.

U.S. Supreme Court Chief Justice John Roberts gave a wonderful demonstration of this last week. Breaking the four-four tie between "liberal" and "conservative" justices currently serving on the U.S. Supreme Court, he wrote what passed for a majority opinion, into which none of the others could buy. By arbitrarily interpreting a "penalty" as a "tax," he "saved" ObamaCare, shifting the defence from what its advocates had offered to grounds they had quite purposely eschewed.

I wrote about the decision, in prospect, last week. As I said then, the ramifications of the judgment would be long-term; the short-term political fallout would distract us from seeing them. But short-term political effects quickly evaporate.

Various "conservative" commentators - smart, quick-thinking pundits all - thought they had found the silver lining in what, for any exponent of limited government, must be a dark cloud. The chief justice had joined the four conservatives on the bench in trying to close the huge "commerce clause" loophole, through which presidents and congresses since F.D. Roosevelt had been railroading legislation obviously antithetical to the spirit of the U.S. Constitution.

The "regulation of interstate commerce" had been used to build the Nanny State, but never before to compel the citizen to buy something. By interpreting the penalty for not buying medical insurance instead as a tax, the further widening of that loophole was obviated. The ability of the feds to withhold agreed financial transfers to states, to compel them to do whatever the feds want, even within their own constitutional jurisdictions, was also formally restricted.

But none of that matters, any more. The Court has empowered Washington's politicians to do anything they want, through the taxation power. And they don't even have to call their fines a tax, which would be politically unpopular. A precedent has been set by which the Supreme Court will change the wording for them, after the fact. Congress can now have everything both ways.

The idea that we may change what something is, by changing the word that describes it, or making up words for imaginary things, has long been a staple of progressive politics. This habit, which is addictive and has spread beyond the Left, does more than wax the skids for the constant advance of bureaucratic tyranny. When Humpty Dumpty declares that "when I use a word, it means just what I choose it to mean," the moral and intellectual order turns over. Lewis Carroll, a fine logician, was able to grasp this, despite the disability of being very smart.

We suffer more than a loss of precision. When the law of contradiction is suspended, the truth ceases to matter. We become lost on a sea of surreality. And when reality finally re-intrudes - for in nature the law of contradiction cannot be broken - the result is catastrophe. Reality and our little barque of fantasy collide.

British and Canadian politicians and judges were originally limited in ways different from the American, but we have come to the same end. Our own public health systems are well ahead of theirs in dysfunction, and should have served as a warning to them of what happens when governments decide to play God. Thanks to our much smarter way of organizing health care, the poorest people in the U.S. can, almost invariably, find hospital beds much faster than the richest people in Canada.

The significance of the U.S. Supreme Court decision crosses borders. The U.S. was the last western country in which legal principle might have been invoked successfully to arrest a huge power grab (the effective nationalization of one-sixth of their economy).

At the very least, the Court could have sent the "Patient Protection and Affordable Care Act" back to Congress with the demand that the "tax" be clearly labelled, if the Act were to be justified on that ground. Such a demand would have sent useful shock waves, inspiring people everywhere to demand, at least, some accommodation with plain and honest language in government edicts.

Instead, John Roberts, in what appears to have been a brilliant last-minute sophistry, unintentionally achieved the effect I most feared last week: erasing the U.S. citizen's last line of legal defence against absolute power, by endowing the federal government with the "right" to do anything - anything at all - under the taxation power.

He is a very smart man. He cannot have intended this result. By now, I'm sure the consequences of his stroke of genius have begun to dawn on him.

David Warren