Sunday, July 1, 2012

75 years of unconstitutional government

Liberty Classroom

Kevin Gutzman is the author of The Politically Incorrect Guide to Constitution and James Madison and the Making of America, among other titles. He also teaches U.S. history for us here at Liberty Classroom. He recently weighed in on the Obamacare decision:

The Supreme Court’s decision to uphold the Affordable Care Act did not surprise me. I predicted it. I thought that the four liberals plus Kennedy guaranteed five votes, and that Chief Justice Roberts was a possible sixth.

Roberts’ vote to uphold the Affordable Care Act in part rested on the taxing power. I thought that in light of the precedents, this was the strongest argument the government had for the law’s constitutionality. While the federal courts have occasionally found limits on Congress’s power under the Commerce Clause, the taxing power has been seen as essentially unlimited.

Some have speculated in the days since the decision’s announcement that Roberts joined the liberals in order to provide a limitation on the Commerce Clause power. Now that the Court has officially rejected President Obama’s contention that the individual mandate is not a tax, the story goes, he will have a hard time on the hustings betwixt now and November. Perhaps.

More important to me, however, is that the Court predictably held back from doing what it could have done: return to a pre-Revolution of 1937 day when Congress’s spending and regulatory powers were said to have some limits. I don’t think a fine can seriously be said to be a tax, and so the majority’s position in the Obamacare case strikes me as yet another in 75 years’ worth of rationalizations of unlimited congressional authority — which is to say, unconstitutional government.

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