The blogosphere has, of course, exploded over the Supreme Court Obamacare ruling. My Mind&Politics colleague I.A. Grea added his say in response to articles by Stephen Presser and Ilya Shapiro. The article that most impressed me was from Ed Feulner, President of the Heritage Foundation. In Morning Bell: Join the Fight to Repeal Obamacare, he argues adamantly against Obamacare, maintaining that the American experiment requires restraint in government.
What impresses me about the article is its lack of dishonesty. He does begin by stating that “The Court misread and rewrote Obamacare in order to save it.” But the rest of his article flows with his view of what constitutes good government, and what he believes is the American tradition. ‘Our republic has survived and flourished for more than two centuries because men and women—brave, determined, and deeply committed to the cause of freedom—were willing to stand, to march, and to make whatever sacrifices were necessary so that their children would know the blessings of liberty, the hope and opportunity that flow from living in “the land of the Free.”’
Feulner’s view is that “the power of government over individuals must be limited.” He writes that this vote on Obamacare is a dangerous expansion of power. He insists that the people retain the powers they do not explicitly grant to government. He presents the coming election as a choice between constitutional, limited government and arbitrary, unlimited rule.
What he doesn’t say, as so many other conservative commentators were not afraid to say, is that Obamacare is unconstitutional, and that the Supreme Court violated its constitutional prerogative in voting in favor of it. Feulner is seemingly well aware of the essentially unlimited taxing power that the Congress has been granted in the Constitution, as stated in Article I, Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” There is no other section which restrains this power; the sixteenth amendment makes it even more clear. Of the scope of the Supreme Court’s rule, from Article III, Section 2: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.” At least since Marbury v. Madison, the Supreme Court is the ultimate arbiter of the Constitution; by default, what is says is constitutional, is constitutional. Nowhere was this more evident than 12 years ago, and liberals like myself are still angry about it, when the Supreme Court superseded Florida state law and anointed George Bush president. Did Al Gore raise a horde to storm the doors of the Supreme Court? From his concession speech: “Now the U.S. Supreme Court has spoken. Let there be no doubt, while I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome which will be ratified next Monday in the Electoral College. And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession.”
Feulner’s soaring words about freedom, and his vision of a limited government of the people I find seductive. But I fear that “limited government” is not government of the people, but government of the more economically successful section of the people. While government can do too much, it can also do too little. We applaud certain decisions which extend the reach of the federal government in righting wrongs, as in Brown v. Board of Eduction, and Loving v. Virginia. We will also applaud it when, five years or so from now, the Supreme Court rules, in accordance with Article IV, Section 2 (” Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”), that marriages performed in one state shall be recognized in all states, even if such marriages are not permitted in the state in question.
Feulner presents an alluring case for limited government. But unlike many of his colleagues, he avoids equating limited government with the U.S. Constitution. My Mind&Politics colleague Jacob Jakes, a few months back (see the March archives), explored the competing ideas at the creation of the Constitution. In many ways, while the Articles of Confederation represented limited government and there was significant anti-Federalist commentary in favor of maintaining such limits, the Constitution itself was a strike in favor of more expansive federal government, because it was realized that government under the Articles of Confederation was failing the nation and its people. The fourteenth amendment, in the aftermath of a Civil War that tested “whether that nation, or any nation, so conceived and so dedicated, can long endure,” further extended the powers of the federal government vis-a-vis the states, in the hopes of preventing a subsequent disintegration of the nation.
Many of us loath the tone of political discussion these days. What I dislike most about it is its dishonesty. And that is precisely why, while not a fan of Ed Feulner, nor of the Heritage Foundation, nor of the conservative principles he preaches, I nonetheless appreciate the artfulness of his words, the forcefulness of his argument, and the honesty of his commentary.