Two Years On: Obamacare

This seems like an oddly flip response to what I merely thought were a couple of interesting thoughts from a really good writer who covers the Supreme Court.

 

I bet 95 percent of Americans don't know this. I bet 99 percent don't, in fact.

It's not their fault. They are taught otherwise from kindergarten on.

 

Yes. They're in politics now.

 

Just got back on, so forgive the lag.

If indeed elections are the only restraint on federal government, then our system of government has little or no means to protect a minority from the tyranny of the majority. Clearly we could envision potential statutes that wouldn't pass Constitutional muster in some way or another, but a clever Congress/President could easily come up with a variety of means to fashion its will as "simply a tax." Suppose, for example, that Congress/President decided that everyone of working age be required to join a union*. Those who choose not to do so pay a penalty/tax. This would clearly have interstate commerce implications and would involve either a join/tax choice, so it would therefore, per this line of reasoning, be constitutionally proper. If that is indeed the case -- or if the only workable response is that "elections matter" -- then the Constitution itself is moot. Rather than being a check on either: A) a tyrannous majority; or B) a temporary majority whose passion is inflamed by some such current issue or another,** the Constitution is simply that set of instructions dealing with how we go about handling those elections.

*With "joining a union" being defined by the Secretary of Labor. Thus one would need to join unions that meet some predetermined criteria (a la the individual mandate) which could easily be rigged to ensure a certain outcome.

*"What bitter anguish would not the people ... have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?" Federalist 63.

 

The Bill of Rights does this.

 

It sounds like whichever way the decision goes, there will be plenty of room for a lot of people to complain about "activist judges."

 

Give me a bare majority* in Congress and the White House and I could conjure up all sorts of ways to get around the Bill of Rights with a simply "it's just a tax" approach.

*I wouldn't even need 60 Senators. Since I'd be doing it under the interstate commerce standard, I could pass any act with a simple majority through reconciliation.

 

No, you couldn't.

I addressed this. You couldn't write a law that mandates that every citizen subscribe to the National Review, or pay a penalty, as this would violate the First Amendment.

 

OK, I'll rephrase/respecify. I might not be able to completely gut the Bill of Rights, but I bet I could figure out ways to get around some of it.

Reminds of an old 1950s joke about Richard and Pat Nixon. She's sitting by the fire, mending a U.S. Flag, and he's studying the Constitution ... looking for loopholes.

 

OK. Shoot then. What have you got?

I can think of one example, called the Civil Rights Act of 1964. Though I think it's a stretch to argue that prohibiting businesses from discriminating against blacks is somehow limiting their free expression. I actually take that back. You'd have a pretty good argument that it impinges on their freedom of association, which the Supreme Court has ruled is a right under the First Amendment.

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Beginning in 2022, everyone 15 or older must join a political party or face a $15,000 a year penalty/tax. While individuals of course are free to join more than one, they must be a member of at least one that has been approved by the Secretary of Labor.

Or another ...

Beginning in 2022, every person 16 or older must be registered as to his/her religious affiliation. "Atheist," "Agnostic" are legitimate choices, but every person must register a choice. Failure to register a choice will incur a $1 penalty/tax.

Now don't get all legal/technical on me, because these are just draft resolutions. I might need to bring in some legal eagle types for some fine-tuning.