It’s the End of America as We Know It, and America Feels Fine

The political pundits on the Left, Obama sycophants, and “legal scholars” will spend the next 30 years hailing this case as a “progressive” decision that looked beyond outdated legal formalities and precedence, so let’s be clear what happened before they rewrite history and reshape it to fit the political ideology of the man currently occupying the White House.

The issue in King v. Burwell is simple: The Affordable Care Act provides subsidies for taxpayers who cannot afford health care, but the law clearly states those subsidies are available only to those who purchase insurance in “an Exchange established by the State under [42 U. S. C. §18031].” Since its implementation, however, the Internal Revenue Service (IRS), following the command of the Obama administration, has been granting subsidies to all citizens who otherwise qualify under the law, even if they live in states that are using the federal health insurance exchange, which is obviously not “an Exchange established by the State.”

This struck many observers as an open-and-shut case: The law strictly confines subsidies to state-established exchanges, but the IRS has been granting subsidies to everyone, in violation of the law.

In the majority opinion, issued today by Chief Justice John Roberts—a man so opposed to the cause of liberty that his career would make Benedict Arnold blush—the Supreme Court determined the language “an Exchange established by the State” is “properly viewed as ambiguous.”

Roberts reasons, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

In other words, Roberts and the Court majority decided the law is “ambiguous” because the court needs it to be ambiguous to fit a particular policy goal, not because its meaning actually is indeterminate.

But as the Supreme Court ruled today, none of that matters. All that matters is protecting Obamacare no matter the cost, as Justice Antonin Scalia illustrated in his scathing and heroic, albeit ultimately unavailing, dissent: “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

The tremendous importance of this case is not that Obamacare was saved (for the moment, anyway), it’s how it was saved. If government agencies can pick and choose which laws are to be read as written and passed by the people’s elected representatives and which laws can be ignored to meet the goals of whoever happens to be in power, then what’s the point of the law at all? Why do we even have a legislative branch? Let’s just get on with it and elect a monarch who rules in four-year chunks and let him or her make all of the decisions for the nation.

Whether you choose to accept it or not, that’s the road we’re now going down.

Of course, most Americans don’t seem to know, care, or understand the significance of this case. Life goes on. Shopping centers stay open, paychecks keep getting cashed, and everyone’s favorite reality TV shows continue to fill channel after channel. Until Americans start taking their liberties seriously (and I’m not sure that will happen anytime soon), convenience will always triumph over freedom. Utilitarianism will always win over principle.

It’s the end of America as we know it, and things will continue to get worse until the people determine, as they did more than 200 years ago, that they desire a government that truly represents them and respects them. Until then, those who believe in liberty must do everything they can to convince their neighbors of the importance of freedom, fully expecting, as they were on Thursday, to suffer from crushing disappointment.

"If these Commentaries shall but inspire in the rising generation a more ardent love of their country, an unquenchable thirst for liberty, and a profound reverence for the constitution and the Union, then they will have accomplished all, that their author ought to desire. Let the American youth never forget, that they possess a noble inheritance, bought by the toils, and sufferings, and blood of their ancestors; and capable, if wisely improved, and faithfully guarded, of transmitting to their latest posterity all the substantial blessings of life, the peaceful enjoyment of liberty, property, religion, and independence. The structure has been erected by architects of consummate skill and fidelity; its foundations are solid; its compartments are beautiful, as well as useful; its arrangements are full of wisdom and order; and its defences are impregnable from without. It has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, THE PEOPLE. Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them."- Justice Joseph Story - "Commentaries on the Constitution. . . ."

In these 200+ years under our written Constitution, the principles and ideas underlying our Declaration of Independence and the Constitution which 11 years later was designed to protect unalienable, Creator-endowed rights of individuals have been under assault, but perhaps never as much as today.

The Founders' passion was for individual liberty and the means to protect it through a written constitution which would "govern both the governed" and those who were delegated limited powers in government. The Constitution's separating, dividing, limiting, checking and balancing of certain delegated powers was intended to leave the sovereign power in the hands of the Constitution's "ONLY Keepers" (Justice Story), not in the hands of ANY branch of the government it structured--including the Supreme Court.

We, in retrospect, are in a position to appreciate the wisdom of their work and to study their reasoning, as revealed in their writings and their prolific writings, speeches, and public records.

On the other hand, we also are able to see how their fears and warnings about dangers to liberty might develop, depending on the ideas of Executive, Congress, or Supreme Court members during a particular time period in America's then-future history.

Already, we have seen abuses by each of the three branches, which tend to reveal the wisdom of the Founders' limitations on power in each branch, including that of the Court.

As to Jefferson and his fear of the idea that a then-future (now present) Supreme Court might endanger liberty in violation of the Framers' intent, how can one doubt that possibility, given the political climate of 2015?

From StreetLaw.org, come the following Jefferson quotations on the subject:

"2."But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
—Thomas Jefferson to William Johnson, 1823. ME 15:451
3."But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
—Thomas Jefferson to John Cartwright, 1824. ME 16:47
4."The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51
5."To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
6."In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212

In evaluating Constitutional interpretation, the views of Jefferson, we might re-read Lincoln's letter to Henry L. Pierce and Others:

Springfield, Ills, April 6, 1859

Messrs. Henry L. Pierce, & others.

Gentlemen

Your kind note inviting me to attend a Festival in Boston, on the 13th. Inst. in honor of the birth-day of Thomas Jefferson, was duly received. My engagements are such that I can not attend.

Bearing in mind that about seventy years ago, two great political parties were first formed in this country, that Thomas Jefferson was the head of one of them, and Boston the head-quarters of the other, it is both curious and interesting that those supposed to descend politically from the party opposed to Jefferson should now be celebrating his birthday in their own original seat of empire, while those claiming political descent from him have nearly ceased to breathe his name everywhere.

Remembering too, that the Jefferson party were formed upon its supposed superior devotion to the personal rights of men, holding the rights of property to be secondary only, and greatly inferior, and then assuming that the so-called democracy of to-day, are the Jefferson, and their opponents, the anti-Jefferson parties, it will be equally interesting to note how completely the two have changed hands as to the principle upon which they were originally supposed to be divided.

The democracy of to-day hold the liberty of one man to be absolutely nothing, when in conflict with another man's right of property. Republicans, on the contrary, are for both the man and the dollar; but in cases of conflict, the man before the dollar.

I remember once being much amused at seeing two partially intoxicated men engage in a fight with their great-coats on, which fight, after a long, and rather harmless contest, ended in each having fought himself out of his own coat, and into that of the other. If the two leading parties of this day are really identical with the two in the days of Jefferson and Adams, they have perfomed the same feat as the two drunken men.

But soberly, it is now no child's play to save the principles of Jefferson from total overthrow in this nation.

One would start with great confidence that he could convince any sane child that the simpler propositions of Euclid are true; but, nevertheless, he would fail, utterly, with one who should deny the definitions and axioms. The principles of Jefferson are the definitions and axioms of free society.

And yet they are denied and evaded, with no small show of success.

One dashingly calls them "glittering generalities"; another bluntly calls them "self evident lies"; and still others insidiously argue that they apply only to "superior races."

These expressions, differing in form, are identical in object and effect--the supplanting the principles of free government, and restoring those of classification, caste, and legitimacy. They would delight a convocation of crowned heads, plotting against the people. They are the van-guard--the miners, and sappers--of returning despotism.

We must repulse them, or they will subjugate us.

This is a world of compensations; and he who would be no slave, must consent to have no slave. Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it.

All honor to Jefferson--to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.

Your obedient Servant
A. Lincoln--

Source: Collected Works of Abraham Lincoln, edited by Roy P. Basler.

Source for this reproduction of the letter is

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