“So shall they fear the name of the LORD from the west, and his glory from the rising of the sun. When the enemy shall come in like a flood, the Spirit of the LORD shall lift up a standard against him. ” – Isaiah 59:19 (KJV)
Just how free do you think you are here? That is, what rights do you have that the government just cannot possibly take away? Obviously the answer is technically “none” – because in a democracy the majority rules without limit, even if we have to define “majority” as a super-majority well beyond 50% … even the Constitution can be amended. Or perhaps, it can just be interpreted.
Back in 1940, Ohio farmer Roscoe Filburn planted too much wheat on his land. The rest is the stuff of judicial legend. The federal government had passed the Agricultural Adjustment Act in 1938 to “help” stabilize prices during the Great Depression. The idea was that we needed to control supply so that prices wouldn’t fluctuate wildly (maybe they were supply-siders after all). In the act, they established the ability to set limits or quotas on just how much of a particular crop a farmer could produce.
The justification for this federal power grab was the hotly debated “Commerce Clause” of the Constitution: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The federal government deemed that the way to regulate the interstate market was to control the supply.
In 1940 Filburn planted too much wheat. “No big deal,” he thought, “I won’t sell this extra wheat – I’ll just use it here on my farm.” WRONG! declared the federal government. And thus was born Wickard v. Filburn, the landmark powergrab. The federal government argued, and the court concurred, that Filburn’s decision to consume the wheat on his own farm would impact how much wheat he would otherwise buy on the market (for things like chicken feed), and would thus impact wheat prices on the interstate market, and was therefore subject to federal jurisdiction under the Commerce Clause.
Let me repeat that, in case you missed it. The federal government can regulate how much wheat you grow in your backyard if they deem that it will change your consumption patterns, thereby impacting national prices. (Side note: are you hearing me out there hippies? Argue all you want for “subsistence” living – not if the federal government says otherwise. Another question: what exactly is the technical definition of fascism?)
Filburn lost the case and was ordered to destroy the excess crop and pay a fine. Another question: in what universe is it a “good” thing (call it “moral” or “just”) to destroy crops and raise prices in the middle of a depression when the people are poor, broke, and hungry? That’s right, in the Great Depression (and soon enough WWII) we ordered farmers to destroy crops so that we could keep prices high … for whose benefit exactly? I suspect the hungry people would prefer lower prices. But I digress, this isn’t a post about Keynesianism. (Though, I will leave you this as a sidebar: cast these Keynesian policies on price control in the light of John 10:10 and see what you come up with … “The thief comes only to steal and kill and destroy; I have come that they may have life, and have it to the full.”)
Yesterday the Supreme Court heard oral arguments in the Obamacare case (State of Florida v. U.S. Department of Health and Human Resources). The early going shows that the court might just throw out the individual mandate. As we noted the other day, there are four liberal justices who are highly unlikely to throw out the mandate (unless it makes sense to side with a majority once the decision is cast). There are four conservative justices who believe that there are in fact limits on federal power and will likely vote against it. And then there’s Kennedy. While you can’t tell exactly what will happen from the line of questioning, Kennedy seemed to be pretty hard on the government’s case, signaling he may go with the conservatives on this one.
It got so bad that liberals across the spectrum were already talking like defeatists (Harry Reid, for instance, discussed the fall out of the not-yet-made decision and how it might impact the next election.)
(Side note, there is a plausible, “way down the line” chance for the liberal justices to pull in Chief Justice Roberts to their cause. While he is obviously a conservative, he also is opposed to “judicial activism” and really doesn’t like overturning laws unless it’s a slam dunk. Though, I suspect this one is.)
I’d love to tell you that this thing will go the right way. I’d love to tell you that this will be the turning point, the high watermark of oppression, central planning, and fascism in this country. I’d like to tell you that a standard has been raised and the enemy of freedom will be held back. I certainly hope that is the case. But history (and the Bible) has taught me to judge nothing before the appointed time (1 Cor 4:5). I honestly have my head on a swivel with this one. When it comes right down to brass tacks I think there is another shoe to drop, another big surprise to come out, and I have no idea what it is.
This decision is a key hallmark, a key turning point in what Hayek would call the road to serfdom. Those who would push toward fascism (or call it socialism if you like) recognize that a defeat here has meaning. And those who love freedom also understand that if the court upholds the individual mandate, then we are slaves indeed, and the last vestiges of freedom will have been laid bare.
Come what may, this is still a good conversation for this country to have. I think the individual mandate is unconstitutional, but we’re really splitting hairs to say so. What exactly is the real difference in the government demanding that you buy insurance or pay a fine, and the government passing a tax to take the money from you and buy the insurance on your behalf? (And if the former is unconstitutional, then why not the latter?) Could the government not also argue (under the cover of Wickard) that a person’s decision not to buy insurance impacts national prices and is thus fair game for the federal government? This is, after all, the basis of Obamacare – forcing young, healthy people to buy insurance they don’t need in order to hold down prices for unhealthy people.
Perhaps the discussion will lead us beyond the political wrangling of Obamacare and on to a reconsidering of past inane “interpretations” in favor of federal power. Exciting times we live in …