Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.
– Henry E. Hudson of the Federal District Court in Richmond, Virginia 12/13/10
The new year will begin for the federal government in the courts, where the Health Care Law, derisively dubbed Obamacare, will be deconstructed and hammered about, as it should be. The most sweeping piece of federal legislation in half a century will go the way of Social Security and the Civil Rights Act, both boldly and unabashedly unconstitutional, and both challenged vehemently through the court system. It is the way of the Patriot Act, also ridiculously unconstitutional, details of which were roundly defeated in every court it entered for close to a decade now. This is precisely why, when many readers of this space accused me of not being more outraged in print over its passing, I continued to retort, as I have when discussing the Health Care Law, that if it is truly illegal, then someone somewhere will take it the judicial route and curtail the madness.
Ending the madness, historically speaking, is a tougher chore.
The federal government, as any entity, whether structured by humans or selected by nature, is to expand its power, even as it is checked and balanced and corralled by federalist parameters. Since the time of the Whiskey Rebellion during George Washington’s initial foray into the presidency to John Adams’ Alien Sedition Act, followed by the expansion of powers under Andrew Jackson and through Abe Lincoln’s Marshall Law, including decades of illegal conscription acts forcing young men to die against their will for the state, the New Deal, Bay of Pigs, Vietnam, Watergate and Iran-Contra, and now Obamacare, this is business as usual.
Ironically, this time it is a spate of Republican support to use the “evil activist judicial system” as a tool to repeal Obama’s greatest political triumph. Both Judge Hudson and Virginia’s attorney general, Kenneth T. Cuccinelli II (joining a predictable 19 of 20 attorneys general) are Republican. A more political uprising there couldn’t be, but it does not mean the motivation to challenge the law or the subsequent ruling is wrong. It is not.
Of course forcing citizens to buy something is unconstitutional, even under the aforementioned Commerce Clause of the U.S. Constitution, giving congress all kinds of insane power to tax and shift infrastructure and kick you out of your home if a highway works better there. This was the conservative, libertarian and wholly out-of-step argument against forcing private business to serve minorities under the Civil Rights Act and mostly each step of the income tax boondoggle that has grown exponentially.
Hell, I have long argued that forcing drivers to purchase insurance in order to drive or even demand they be licensed is unconstitutional, as is setting speed limits and safety standards like seatbelts. These are complete and indisputable infringements on the freedoms to access a way of travel. The flimsy argument against mine is that no one needs to drive an automobile and that it is a privilege not a right. This is true, as it is something of a public service to keep the uninsured from running amok, causing those legally insured from having to monetarily rectify a situation born of “choice.” Someone may rightfully choose not to be insured, but what does the state do when that individual comes in direct contact with those who are responsibly insured?
The state, I maintain, should back off. Let us handle it. Free market.
I have always believed much like other frontiersman that it is every sucker for himself. Period. This is freedom. Screw safety, regulation and goddamn commerce. Screw your neighbor and fuck unjust laws. Freedom.
‘Tis the season, after all.
Shit, never mind mere whiny modes of “public service,” matters of “health” have slowly but surely crept into the over-regulatory, behavioral arena for years now, from tobacco to alcohol taxes. Moreover, overreaching regulations on where one can imbibe to how much one can imbibe and what one can do when imbibing, which also runs into the questionably constitutional area of who the hell decides what is enough imbibing before operating an automobile.
I can attest that tolerance is not a generality, but is treated as such. Or as I once soberly told a judge in a potential DWI jury duty jag I was summoned to attend, I am a remarkably better and safer driver soused than jacked up on stress and caffeine while trying to juggle the morning paper, flip radio knobs and a operating a cell phone.
Why should the state or the government decide how much alcohol I can consume and not be able to operate a vehicle? It is specious and arbitrary and blatantly unconstitutional.
At least the Health Care Law, along with the other outlandishly restrictive laws dreamed up by congress over the decades, was debated, voted on and vetted through the press. The difference, it appears, that in the cases of The New Deal or Civil Rights there was a groundswell of public support, wherein hardly 40 percent of the electorate wanted anything to do with national health care. A good deal of those people drive drunk. Some are driving drunk right now.
‘Tis the season, after all.
How about when un-elected officials in say the FCC decide what music, television or art is considered indecent. Decency laws are always bullshit, like drug laws, whether marijuana or steroids, which were demonized by lobbies and later ignored by scientific fact and drawn into more unjust laws.
So good luck to the Common Wealth of Virginia and the harangue of politics, for most laws are unconstitutional; whether state or federal, fiduciary or moral.
Everyone for themselves.
‘Tis the season, after all.
James Campion is the Managing Editor of The Reality Check News & Information Desk and the author of Deep Tank Jersey, Fear No Art, Trailing Jesus and Midnight For Cinderella.
