“The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”
—James Madison, Federalist 58.
Andrew C. McCarthy delivers a nice history lesson on why the framers accorded the House of Representatives the power of the purse and then explains why that power both can and should to be applied to defund Obamacare.
Let’s move directly to the 1787 convention in Philadelphia.
One of the major challenges confronting the delegates was to broker the competing claims of small and large states. As Franklin summarized, “If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger.” This resulted, of course, in the great compromise: equality among states in the Senate and proportional representation (by population) in the House. But this arrangement was inadequate to quell the large states’ fears; it was also necessary to tinker with the powers assigned to the two chambers. As Franklin put it, the Senate would be restricted generally in all appropriations & dispositions of money to be drawn out of the General Treasury; and in all laws for supplying that Treasury, the Delegates of the several States shall have suffrage in proportion to the Sums which their respective States do actually contribute to the Treasury [emphasis added].
When the Origination Clause was specifically taken up, a spirited debate ensued, with some delegates protesting against restrictions on the Senate. According to Madison’s records, however, what “generally prevailed” was the argument of George Mason:
The consideration which weighed with the Committee was that the 1st branch [i.e., the House of Representatives] would be the immediate representatives of the people, the 2nd [the Senate] would not. Should the latter have the power of giving away the people’s money, they might soon forget the source from whence they received it [emphasis added]. We might soon have an Aristocracy.
Mason’s concerns seem prescient in our era of mammoth national government presided over by an entrenched ruling class of professional politicians. He worried that
the Senate is not like the H. of Representatives chosen frequently and obliged to return frequently among the people. They are chosen by the Sts for 6 years, will probably settle themselves at the seat of Government, will pursue schemes for their aggrandizement. . . . If the Senate can originate, they will in the recess of the Legislative Sessions, hatch their mischievous projects, for their own purposes, and have their money bills ready cut & dried, (to use a common phrase) for the meeting of the H. of Representatives. . . . The purse strings should be in the hands of the Representatives of the people.
Yes, the purse strings, not just the power to tax. Concededly, the Origination Clause speaks of bills “for raising revenue.” In selling the Constitution to the nation, though, it was portrayed as securing in the hands of the people’s representatives the power of the purse. It is an empty power if spending is not included.
The relevant paragraph in Madison’s Federalist No. 58 is worth quoting in full (all italics mine):
A constitutional and infallible resource still remains with the larger states by which they will be able at all times to accomplish their just purposes. The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of government. They, in a word, hold the purse — that powerful instrument by which we behold, in the history of the British constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
To my mind, what Madison describes unquestionably transcends taxing authority. I believe a “complete and effectual weapon . . . for obtaining a redress of every grievance” must give “the immediate representatives of the people” the power to block funding for a government takeover of health care that was enacted by fraud and strong-arming; that was adamantly represented not to be the tax that the Supreme Court later found it to be; and that is substantially opposed by the people, and has been since its enactment.
(We the people are the turkey.)
Charles C. W. Cooke, at National Review, responds to progressive complaints about gridlock, explaining that one branch of government preventing another from acting is a design feature of the American system, not a bug.
Separation of powers is inefficient; it is an obstacle to substantial change; and it will not only “allow” gridlock but it is explicitly designed to encourage it. Where [leftist critics] are wrong is to conclude that this should change with the times. The Constitution is the product of abiding insight into politics — an insight that does not change with the wind. Rather amazingly, Yglesias claims the opposite to be the case: The problem of gridlock, he wrote in 2011, stems directly from the Founders’ having had “little in the way of experience to guide them in thinking about how political institutions would evolve.”
This is not simply untrue, it is the perfect opposite of the truth. Having watched the radical transformation of the British system during the 17th and 18th centuries — and studied undulations of the classical world, for good measure — most of the Founders were strikingly well versed in political theory. The introduction of limiting tools such as the rule of law, term restrictions, a codified constitution, a bill of rights, and divided government were intended to dispense with the presumption, famously termed “elective dictatorship” by Lord Hailsham, that the man who is voted in as leader every four or so years should have carte blanche to get things done. In other words, the Founders sought to block precisely what [Matthew] Yglesias and his cohorts covet. Nobody is perfect, of course, but I would wager everything I own that the architects of America were more au courant with the vagaries of human nature and the concentrating tendency of political actors than are the writers at Slate.
“We’re not trying to take your guns away, just have reasonable limits. It’s a compromise.”
And some people want reasonable limits on abortion, like waiting periods, gestational time limits, ultrasound, etc. It’s a reasonable response to an activist court decision, and reasonable restrictions on a right, for public benefit. Don’t come whining about your right to murder babies, and I won’t come to you whining about my right to shoot school kids.
And no one is saying you can’t ride the bus. You just have to sit where people think is reasonable. No one is saying women can’t work. They just have to get paid what is reasonable for the work they do, allowing for the fact they’re going to leave the workplace and raise a family. It’s a compromise.
Georgetown Law School’s Carmack Waterhouse Professor of Constitutional Law Louis M. Seidman cannot even be bothered to wear a coat and tie when participating in a debate on a major issue of national public policy, i.e. defending the supposed constitutionality of the Obamacare health insurance mandate.
I smiled recently with bitter amusement upon reading of Stanford University’s preposterous appointment of an “atheist chaplain” when I came upon the detail that made the story perfect: the new padre in charge of unbelief is a graduate of Harvard Divinity School.
It seemed to me to speak volumes about establishment university administrations’ systematic pattern of what really amounts to nothing less than long-term embezzlement via the application of institutional resources and funding for purposes diametrically opposed to those which the institutions in question were created to pursue. It sounds like a joke when you observe that one of our most elite divinity schools graduates doctors of divinity specializing in atheism, but the pattern of institutionalized academical heresy and treason obviously extends far beyond mere theology.
Over the weekend, the New York Times published an editorial, written in complete earnest by a tenured professor of Constitutional Law at Georgetown, one of the country’s top-tier law schools, titled “Let’s Give Up on the Constitution.” Its author, Professor Seidman, who has been teaching, i.e. obviously traducing and malpracticing, Constitutional Law for nearly four decades, brazenly argued in favor of ignoring the Constitution altogether.
As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
Obviously what this country needs to do is the precise opposite of seeking spiritual counseling from atheists and constitutional legal analysis from opponents of constitutional government. We need to take back our most important and prestigious institutions from the flakes, creeps, and radical fanatics who have infiltrated and occupied them. Our best-credentialed elite ought not to be enthusiastic adversaries of the historical country, culture, and civilization which created the institutions awarding their credentials and vesting them with influence and authority.
Chief Justice Roberts is kind of like Hakuin, the sort of Zen master who asks you if Obamacare is constitutional, and then whacks you with a shinai if you answer anything but “Moo!”
Chief Justice Roberts, in a manner provocative of keen curiosity, and apparently at the last minute, evolved a new (and extremely Zen) jurisprudential philosophy, urging Supreme Court justices to adopt an extremist philosophy, strangely combining restraint with activism, out of an exaggerated deference to the alleged superior expertise and mandate of Heaven possessed by elected legislators.
Apparently when an elected Congress proceeds to violate the Constitution, according to Mr. Roberts, the good Supreme Court justice will peer skyward, mutter “tsk, tsk” to himself, and proceed to pore closely over the Constitution to find some loophole which can be used to finagle the violative legislative measure into Constitutional legitimacy. He will then wave from afar to the inhabitants of the American Republic, and in his heart wish them the best in capturing total control of both other branches of government, so they can repeal the atrocity.
Protecting Americans from the consequences of their electoral choices, Mr. Roberts explicitly assured us, is not his job.
It is implicitly our job to protect ourselves from having our rights trampled and the Constitution made into a mockery by either winning landslide electoral victories totally repudiating the party currently in power, or possibly by launching a successful armed revolution. And good luck to us, because we certainly are not going to be receiving any help from Mr. Roberts.
Adolph Hitler concluded in 1945 that the German people were demonstrably unworthy of his genius and deserved to lose, and the Russians were really the master race. Mr. Roberts clearly shares this kind of shape-up or ship-out view of Constitutionalism in an electoral democracy. If you lose elections, don’t go crying to Chief Justice Roberts’ Supreme Court. The correct rule is not what the Constitution says, or what the framers had in mind, but the will of the voting electorate as interpreted by the ukases of the successful professional politicians.
Win elections, control Congress and the White House, says Chief Justice Roberts. “There is no ‘try.’”
Andrew C. McCarthy identifies one of the key things wrong with John Roberts’ interpretive maneuver.
Chief Justice Roberts & Co. ... said the American people are not entitled to an honest legislative process, one in which they can safely assume that when Congress intentionally uses words that have very different meanings and consequences — like tax and penalty — and when Congress adamantly insists that the foundation of legislation is one and not the other, the Court will honor, rather than rewrite, the legislative process. Meaning: if Congress was wrong, the resulting law will be struck down, and Congress will be told that, if it wants to pass the law, it has to do it honestly.
Just as an appeals court may not legitimately rewrite an indictment and revise what happened at a trial, neither may it legitimately rewrite a statute and fabricate an imaginary congressional record. But today, the Supreme Court rewrote a law — which it has no constitutional authority to do — and treated it as if it were forthrightly, legitimately enacted. Further, it shielded the political branches from accountability for raising taxes, knowing full well that, had Obama and the Democrats leveled with the public that ObamaCare entailed a huge tax hike, it would never have had the votes to pass.
In NFIB v Sebelius, Chief Justice Roberts explictly renounces the Supreme Court’s responsibility for strict enforcement of the Constitution on the grounds of deference to the superior expertise of, and the mandate of Heaven possessed by, elected legislators.
We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions. ...
Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
In fact, Roberts asserts the existence of an actual obligation on the part of the Court to use intellectual ingenuity and interpretive creativity to somehow find a theoretical basis on which an unconstitutional piece of legislation, like the Affordable Care Act, can be read differently, in order to finagle it into effect around the Constitution.
Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government,means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.
The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. Crowell v. Benson, 285 U. S. 22, 62 (1932). As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Hooper v. California, 155 U. S. 648, 657 (1895). The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.
After all, according to Roberts, if the American people really dislike what elected legislators have done, they need only overcome the enormous power of incumbency, the vast nation-wide political organizations and interests behind a given measure and the political leaders who passed it, their campaign chests stuffed with hundreds of millions of dollars, all the forces of entropy and inertia, and now-established practices, institutions, and persons dependent on them, and just throw all the rascals out, win the presidency, and majorities of both houses of Congress, and possibly a super-majority in the Senate capable of closing down the filibuster, and the nation can readily thereby correct “the consequences of (past) political choices.”
If one subscribes, it seems to me, to the theory of a system of divided branches of government with checks and balances, adopted by the framers on the basis of the theories of Montesquieu , protecting the American people from the consequences of the electoral choices is precisely what the Supreme Court was created to do.
I would be very interested in reading the particular number of the Federalist Papers in which Madison, Hamilton, or Jay explains that devising sophistical readings of a law in order to allow it to appear to conform to the boundaries of enumerated powers in the Constitution so that all possible fruits of unfortunate electoral decisions may be fully allowed to be experienced by the inhabitants of the American Republic and the ephemeral will of the electorate be unconstrained is really the intended responsibility of highest judicial tribunal.
Kevin Drum, in Mother Jones, contends that we diabolical conservatives first strong-armed the Republican Party into accepting our view of the unconstitutionality of the Obamacare individual mandate, then we successfully used the right-wing media to brainwash the mainstream media into accepting our arguments as legitimate, and all this, you see, gives cover to our partisan judges to make a partisan ruling.
Two years ago, when President Obama signed the Affordable Care Act into law, the idea that its individual mandate provision was unconstitutional was laughable. There was no case law, no precedent, and frankly, no serious argument that the federal government’s Commerce Clause power didn’t give it the authority to mandate purchase of health insurance if it wanted to. That’s why Democrats didn’t bother looking for a clever alternative—many of which were available—in order to avoid including an explicit mandate in the law. They didn’t think they needed to. Of course it was constitutional. Even Randy Barnett, the law professor who popularized the activity/inactivity distinction that opponents latched onto as their best bet against the mandate, initially didn’t really think it was anything but a long shot.
So how did that conventional wisdom change so dramatically in only two years? ...
Orin Kerr says that, in the two years since he gave the individual mandate only a one-percent chance of being overturned, three key things have happened. First, congressional Republicans made the argument against the mandate a Republican position. Then it became a standard conservative-media position. “That legitimized the argument in a way we haven’t really seen before,” Kerr said. “We haven’t seen the media pick up a legal argument and make the argument mainstream by virtue of media coverage.” Finally, he says, “there were two conservative district judges who agreed with the argument, largely echoing the Republican position and the media coverage. And, once you had all that, it really became a ballgame.”
This is, needless to say, a powerfully depressing analysis. For all practical purposes, Kerr is agreeing that conservative judges don’t even bother pretending to be neutral anymore. They listen to Fox News, and if something becomes a consvative talking point then they’re on board. And that goes all the way up to the Supreme Court.
Kevin Drum’s perspective amounts to assuming that extreme New Deal jurisprudence, like the 1942 Wickard v. Filburn (a decision which ruled that the Constitution’s grant of power to regulate Interstate Commerce gave Congress the power to tell an Ohio farmer named Roscoe Filburn that he was not allowed to grow wheat on his farm to feed his own chickens. Farmer Filburn using his own wheat, and not buying wheat on the market, was deemed to impact Interstate Commerce and therefore to provide a legal basis for Congressional authority.) was good law and destined to endure forever unchallenged by the reasoning of later courts.
Kevin Drum studiously ignores the fact that the Constitution-in-exile of the New Deal era has been gradually coming back. The Supreme Court resumed, in a modest way, re-adopting the perspective that Constitutional authority to regulate Interstate Commerce actually required the legislative object to involve commerce crossing state lines. In U.S. v. Lopez (1995), the Court struck down a Gun-Free School Zone law because the regulated activity concerned actually had nothing to do with Interstate Commerce.
A number of other once-thought-to-be-extinct Constitutional provisions, like the Second Amendment, have come roaring back to life in recent years.
To believe, as people like Kevin Drum and Nancy Pelosi notoriously did, that it was completely unnecessary to look for an actual constitutionally enumerated power to permit Congress to tell Americans to buy health insurance policies is to reject the fundamental American idea of limited government.
What has actually occurred, over decades, is a national debate over whether a long string of unprincipled, legal realist rulings simply setting the Constitution and the entire earlier history of constitutional law aside were correct. In law review articles, public debate, and in national elections leading to judicial appointments and ultimately to rulings, the left has been losing and the conservative position has been winning.
In the end, there should be no surprise to anyone who takes the Constitution seriously when the Obamacare individual mandate is struck down. That was the intent of the framers, and those of us who contend that that is what the Constitution says inevitably have the better arguments.
David Steinberg, at PJM, in my view, does not really pull off the Colonel Kurtz allusion which led me to his editorial, but he does identify the crucial philosophical point: it is impossible to create new (supposititious) rights without violating (real) natural rights. The Constitution was written to protect natural rights by men who believed that they were self evident.
[Y]ou cannot invent a right. The government attempted to do this, and found they could not do so without also violating a right.
Why? Because a “right” to a good or service necessitates a violation of the rights of the provider of that good or service or of whomever is chosen to be stuck with the bill, and further, as the citizen receiving the proposed new “right” is also subject to the violation in different time and circumstance, any new “right” is by definition a decrease in liberty for everyone, and might I add “duh.”
Elsewhere in the field of reality lies a perfect analogy for the Left’s century of affronts to Natural Law:
In all cases in which work is produced by the agency of heat, a quantity of heat is consumed which is proportional to the work done; and conversely, by the expenditure of an equal quantity of work an equal quantity of heat is produced.
This sentence, the First Law of Thermodynamics, represents the end of all inquiries into the creation of a perpetual motion generator. The First Law cannot tell you what form a proposed perpetual motion generator will take; it is, however, unfailingly predictive of the experiment’s conclusion in failure. Of course, that didn’t halt centuries of “mathematical leftists” from attempting to design and construct perpetual motion machines. The builders predating the First Law pursued knowledge in the best tradition of humanity; the builders following the Law belonged to one of three categories: they either refused to accept the Law; were ignorant of its discovery; or were charlatans who knew a great number of suckers resided in the other two categories.
“A right to health care” offers equivalent parallels to the First Law of Thermodynamics and its three categories of opposition: the deniers, the ignorants, and the common schmucks.
Unfortunately for the suddenly uncomfortable, the bigger problem for the left-leaning does not halt beyond Obamacare: can you name many Leftist proposals that do not either violate Natural Law or disdainfully tread on its boundaries? Any? How much of Leftist thought is, and should have been, dead on arrival? How many landmark bills, slogans, teachings, entire executive branch departments?
For the intellectually honest Leftist, today the pupils must widen, lest you mislead yourself and waste another day or life. The Constitution forbids Leftism.
Ben Smith quotes an unnamed conservative lawyer who offers a simultaneously cynical and whimsical explanation of exactly why Obamacare is toast.
You have built an imaginary mansion, with thousands of rooms, on the foundation of Wickard v. Filburn — the 1942 ruling that broadened the understanding of how the Commerce Clause could be used to regulate economic activity.
We aren’t being asked to radically revise the Commerce Clause and throw out seven decades of law, and we won’t. But we know the founders never intended the Commerce Clause to allow the Federal Government to regulate everything on the planet. So we are going to accept Randy Barnett’s basically spurious exception to that basically spurious idea, and throw out the Affordable Care Act on the grounds that the Commerce Clause regulates “activity” (which we don’t really believe), but not “inactivity” (because, why not draw the line somewhere?).
This is to say: You have built a fantasy mansion on the Commerce Clause. You can hardly blame us if, in one wing of this mansion, down a dusty corridor, we build a fantasy room called “inactivity,” lock the door, and don’t let you in.