So we all now wait with bated breath as the wizard cabal, high upon the pillars of Mount Wisdom, confer amongst themselves upon the fate of the lowly commoners down in the valley. I mean, really, what is up with the whole black robed sage thing? Isn’t it all just a bit Lord of the Rings – or, maybe, Harry Potter? And of course the cable news stations have been all aflutter with speculation about the fate of the affectionately dubbed Obamacare policy.
Well, look, I understand the attitude that a ruling that validates the law would be a fatal blow to individual liberty, opening the door to state-mandated broccoli purchases, as it would be the final nail in the coffin of limited government. But really isn’t this much ado about a horse rather long since departed from the proverbial barn?
My gateway drug into libertarianism was the legal writings of Richard Epstein. And, while I have since moved away from his minarchist and consequentialist approach to libertarianism, there remains no doubt that he is an intellectual treasure with an incisive mind, a wry biting wit and zero tolerance for the standard statist central planning quackery. In the USA of some parallel universe where the Constitution is taken seriously and honoured in word and spirit, he would himself be upon the Supreme Court. Alas, in this universe, Epstein is but a lone libertarian voice in the wilderness of ravaging statocracy. This might be an excellent time to go back and reread his telling indictments of U.S. black robed duplicity.
The fact is that for about a century now, the U.S. federal state has been abusing the Constitution through creative, beguiling misinterpretations of the Takings, the Commerce and the Necessary and Proper Clauses. Up until the 1930s the robed overlords provided some resistance to these exercises in the state’s domestic colonialism. After Roosevelt’s threat to gut the court, though, the wizard sages have been pretty much the legal bagmen for the endless assault on any pretense of Constitutional restraint on state prerogative.
And don’t buy the crap peddled by either side of the two-winged bird of prey that is the mainstream of political discourse: conservatives have been just as responsible for this sad state of affairs as has the progressives. Even if the “conservatives” on the current court decide that the federal government can’t be given the power to force Americans to buy broccoli or cotton underwear, the odds are pretty long that anything they’ll decide will reverse longstanding court precedent that American’s have no choice over being forced to drink fluoride, denied use of marijuana to alleviate debilitating chronic pain or grow wheat in their own backyards for their own use. As Damon Root has argued, the issue isn’t the false dilemma over the rights or wrongs of judicial activism, it’s upholding the Constitution to limit state power and protect the individual. All that high-mindedness, though, has come to be sadly a quaint requiem.
These last few days, with all the bright lights focused upon them, the U.S. Supreme Court has done a fine job of making a grand showing of deliberative care and responsibility toward the sacred Constitutional constraints upon the state. A couple times a year or so we go through this grand charade, where all eyes breathlessly fix on the wizard cabal. But that’s all that it is: a charade, a grand dog and pony show. A circus. Once the lights are turned off and the herd of reporters shuffle off to the next “big story,” the quiet and persistent business of gutting individual liberty and limited government in relative obscurity resumes. Reading Epstein reveals this reality all too plainly.
Of course it’s better that the court rules against the individual mandate, and indeed against the entire legislation, than that they don’t. But to imagine that such a victory is anything more than a staged opera for the consumption of the masses, at this point in history, is an unconscionable act of willful myopia.
Limited government is not some tempting possibility for which eager and earnest folk must diligently struggle; it is dead. The United States was the greatest laboratory for this historical experiment imaginable and the experiment failed. Pretending otherwise is to unwittingly join the black robed sages in the charade to distract our attention from the truth. No dog and pony show, however entertaining, changes the facts of the case.