What the Supreme Court Thinks Just Doesn't Matter

The Supreme Court decision this morning contained several surprises—but maybe fewer than you might at first glance think. Photo: US GOVT

COLORADO SPRINGS, June 28, 2012 – My lingering vision of the decision is the Fox news reporter standing on the steps flipping through the decision paper and trying rapidly to make sense of it. I don’t know who she was but I don’t envy her having to juggle the paper and the mike while trying to make sense of a complex ruling.

There are a number of things to think about and almost none of them are related to the simple thumbs up or thumbs down decision that people expected. We may have gotten a better decision that we thought at first and in the end, nothing the Supreme Court said today really matters at all.

The first thing to keep in mind is that the Court rules on the issues that are brought before it, generally nothing more. This narrows the focus of their decisions. What was at issue? The individual mandate and the state Medicare mandate. On both those issues, we won.

The Court ruled that the Commerce Clause could not be stretched so far as to require us to buy healthcare insurance. This is the first limit we’ve seen on the Commerce Clause and it is a very good thing. The states are not forced to expand Medicare either. So far, so good. While I agree these are good things, this is not my original opinion but rather that of Virginia Attorney General Ken Cuccinelli, who I heard speak tonight.

Now we get to the weird part. The majority ruled that the “penalty” is really a “tax,” despite many protestations to the contrary both in the bill and from the administration and supporters. Democrats have real issues because they badly want to tax everything that moves but are rightfully afraid to be open about it.

Democrats are in a box. They couldn’t call them taxes because a revenue bill must originate in the House (Art 1 Sec 7) and the bill they “deemed” passed originated in the Senate. In addition, this tax is not on income (allowed by the 16th Amendment) nor is it apportioned among the states (Art 1 Sec 9). Capitation taxes, which the mandate is, are expressly forbidden.

This is why I though the law must be struck down: if it is an individual mandate, it is unconstitutional; if it is a tax, it is also unconstitutional. Why Justice Roberts declared it a tax and didn’t declare it unconstitutional has left me, AG Cuccinelli and doubtless others scratching our heads.

But as I said, it leaves Democrats in a box. They loudly proclaimed that there are no new taxes in the bill. (There are in fact 20.) Are they now going to embrace the taxes which apparently make the law constitutional? Not a good election strategy in a country founded, in part, on a tax revolt.

Furthermore—and I think this is critical—we now need only 51 votes to overturn the law, not 60. This could be huge. We might not get 60 senators willing to overturn the law, but we will get 51.

This ruling also fires up the conservative base in a way that economic issues have not quite done. Any lingering doubts about Romney will be overlooked by the Tea Party if he makes a serious, credible pledge to repeal the law.

The ruling makes it clear that the Supreme Court cannot be counted upon to defend our liberties. We the People have only ourselves to rely on. This is the most important lesson of the day.

We knew we could not count on Congress or the current president but, perhaps buoyed by positive rulings on the Second Amendment, we expected that we could rely on the Court. We can’t and we shouldn’t. This is a key lesson, more important than all the details of constitutional checks and balances.

Here’s why.

Our rights and our liberties are our birthright by virtue of our humanity. I happen to believe, along with the Founders, that they are given to us by God. But whether you believe you are the child of a Creator or the son of primordial slime, the result is the same: government exists to guarantee our pre-existing rights, not to create them or dole them out as favors.  This is what makes America exceptional. (White House please take note.) We are the only nation in history founded on an ideal, not a dynasty, a clan, a race, or a tribe.

The Constitution guarantees our rights. It does so by limiting government, not us. The Supreme Court cannot create or destroy rights. The Court isn’t even the judge of the Constitution—it is merely a creation of the Constitution, subordinate to it. If you believe you lost rights today, you’re wrong. If you believe the government is abusing its power—the power We the People gave it under the Constitution—to place unacceptable limits on your rights, you’re right.

What should we do about it? The Declaration of Independence tells us:

“…whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”

We’ve got four months and one week until November 6. Let’s get busy.


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Al Maurer

Al Maurer is a political scientist and founder of The Voice of Liberty. He writes on topics of limited government and individual rights.

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