The Court found Obama-care constitutional under the power to tax for the general welfare. The clause is found in Article one, section eight, clause one.
The power to tax is not the same as the power to nationalize health insurance.
The sad thing about the Courts decision was that it reaffirmed the dangerous shift in our governance toward decidedely
unequal protection. Roberts specifically cited the presumed legitimacy of government power to use discriminatory taxation as a means of coercing behavior - and this is where I believe the core err lies. Roberts saw that ruling against this kind of taxation on equal protection grounds would unravel a huge portion of the federal government's ill-gotten power, because pretty much every other 'tax incentive' is based on the same concept - that the government can arbitrarily dictate behavior and use discriminatory taxation as punishment. In my view, this does an end-run around the fundamental concepts of limited government and equal protection, but I guess, from the point of view of those eager to expand government, that's the point.
The problem with this is itÂ’s fundamentally reactionary and completely ignores the doctrine of judicial review, perhaps intentionally.
How long must a given interpretive jurisprudence concerning the meaning of the Constitution be in existence before it is considered accepted and settled? 50 years? 100? 200?
Dred Scott was nullified after ten years with the ratification of the 14th Amendment.
Plessy v. Ferguson was struck down after 58 years. Certainly after more than half a century we can consider jurisprudence still accepted as binding precedent to be proper, just, and an accurate interpretation of the Constitution and the Framers' original intent.
Consider that itÂ’s been 76 years since the Court ended the
Lochner Era’s dogma of ‘liberty to contract,’ ruling as Constitutional laws establishing a minimum wage and other workplace regulations. See:
West Coast Hotel Co. v. Parrish (1937). ItÂ’s been 71 years since the Court ruled as Constitutional CongressÂ’ authority to regulate commerce, regardless its volume or how isolated the commercial activity might be. See:
Wickard v. Filburn (1942). Indeed, subsequent conservative Courts have reaffirmed this very Commerce Clause jurisprudence. See, e.g.,
Gonzales v. Raich (2005).
ItÂ’s not as if
Parrish or
Wickard were decided last year; laws predicated on these rulings and their progeny have been subject to review by a series of Courts, both liberal and conservative, over the many decades, and reaffirmed time and again.
These rulings, and laws based on these rulings, aren’t going anywhere. They are the foundation of our modern industrialized society, and they are the foundation upon which our just and civil society is based – where working Americans are not mere chattel to be exhausted and discarded by their employers, but individuals entitled to the privileges and immunities guaranteed each person as a consequence of his humanity. This case law is the font of American’s greatness, and of its great success.
This is why your advocacy of discarding this vital Constitutional doctrine is reactionary, naïve, unjustified, unnecessary, and reckless.
The ACA was passed into law in accordance with the Constitution, it was subject to exhaustive judicial review, and as the High Court determined in
NFIB v. Sebelius:
‘[T]he Court upholds the individual mandate as a proper exercise of Congress’ power to tax and spend “for the . . . general Welfare of the United States.”’
Last, the ACA conforms with post-
Lochner jurisprudence designed to supplement a modern and just society, where government may play a positive and important role ensuring society remains competitive yet not abusive to its citizens. This is not a situation where government ‘dictates’ or ‘mandates’ or ‘diminishes’ civil liberty, but where government maintains an appropriate level of human dignity for all its citizens so they might indeed be allowed to exercise their civil liberties free from the barbaric and brutish disabilities far too many Americans suffered prior to the Second Quarter of the 20th Century.
