Obamacare and the Revenge of the "Secret Constitution"

“[T]he majority has at all times a right to govern the minority, and to bind the latter to obedience to the will of the former…. In a general sense the will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual.”

Joseph Story, Commentaries on the Constitution, III, 327, 330

"The scientific concept of dictatorship means nothing else but this — Power without limit, resting directly upon force, restrained by no laws, absolutely unrestrained by rules."

Vladimir Lenin

A constitution merely prolongs the pretense that a political government can be limited by laws that it will interpret. Eventually, every constitutional government will embrace Lenin's ruling formula -- "Power without limit, resting directly on force.” 

The function of the judiciary is liturgical: It transmutes the restrictive language of the constitution into a mandate for government action. This process is called “state-building” – and the purpose of the judiciary, insists Professor Jack M. Balkin of Yale Law School, is to “ratify significant revisions to the American social contract.”

According to Balkin, “the most important function of the federal courts is to legitimate state building by the political branches.” It does this by supplying the appropriate scholarly conjurations every time those in charge of the State seek to enrich their powers at the expense of individual liberty. 

In this fashion, the relatively modest constitutional state of the early 19^th century – which, Balkin notes with palpable disapproval, “didn’t do very much more than national defense and customs collection” – built itself into the omnivorous monstrosity he calls the “National Surveillance State.” This is an entity that claims the authority to slaughter, torture, and imprison anybody on the planet for any reason. From Balkin’s perspective, the role of the courts is not to protect the rights of the individual, but to issue the occasional theodicy justifying the inscrutable ways of the divine State. 

“Whenever the federal government expands its capabilities, it changes the nature of the social compact,” writes Balkin in The Atlantic. “Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution” – a procedure that frequently involves subjecting language to treatment that even Dick Cheney would describe as torture. 

In order for this to work, candor must be scrupulously avoided, and the pretense of constitutionalism must be preserved.

“Courts do not simply rubber stamp what the political branches do,” Balkin asserts. “Rather, they set new ground rules. The government may do this as long as it doesn’t do that. Legitimation is Janus-faced: it establishes what government can do by establishing what the government cannot do” – at least, for now, until those running it decide that the time has come to do what was previously impermissible. 

That’s what happened in the Obamacare ruling, Balkin concludes: “The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.” 

As he points out, both branches of the Establishment party want to continue building the Leviathan state, albeit in the service of different constituencies: “Most Republican politicians don’t actually want to strip the federal government of most of the powers to regulate, tax and spend that came with the New Deal. This is because Republican politicians want to use those powers to promote Republican policies….” 

Thus it was exquisitely appropriate that the Supreme Court’s ratification of “the most important piece of social welfare legislation since the 1960s” came in a majority opinion written by a Bush-appointed Republican conservative. After all, we should expect adherents of the Party of Lincoln to be doing the works of Abraham. 

In his book Our Secret Constitution: How Lincoln Redefined American Democracy, George P. Fletcher, a Marxist Columbia University School of Law professor, describes how the mission of Abraham the Destroyer was not to preserve the constitutional union, but rather to impose a new order – one created through aggression by the central government against the states that created it, and the people from whom it supposedly derived its powers.

“The new order inherits an operating Congress, Executive, and Judiciary,” writes Fletcher, and although federal institutions have been “recast in new functions, the forms remained the same.” Behind a change in federal functions is a new ruling ideology, in which the central government elite now acts on “the consciousness of setting forth a new framework of government, a structure based on values fundamentally different from those that went before.”

“The heart of the new consensus is that the federal government, victorious in warfare, must continue its aggressive intervention in the lives of its citizens,” writes Fletcher approvingly. The Founders' Constitution was sold to the populace as an austere and proscriptive document that defined the few and specific things the central government would be permitted to do.

This arrangement was changed through Lincoln's war of aggression, according to Fletcher, since “the liberty that comes to the fore in the intended postbellum constitutional order and under the Secret Constitution requires the intervention of government. Liberty is born in the state's assertion of responsibility to oversee and prevent relationships of oppression.” (Emphasis added.) 

That is to say that “liberty” is a revocable and highly conditional gift of the State, and that “oppression” exists anywhere there are limits placed on the exercise of federal power. One is “free” only to the extent he supports, and is subject to, the benevolent rule of the unfathomably noble beings who inhabit the Imperial Capital. Questioning their edicts and actions on “constitutional” grounds is intolerably impudent – nay, it is nothing less than blasphemy, since everything our masters do is blessed with the “presumption of constitutionality.” 

In his recent book It Is Dangerous to be Right when the Government is Wrong, Judge Andrew Napolitano (one of the few jurists worthy of that honorific) underscores the importance of the Supreme Court’s United States v. Carolene Products ruling in 1938.

The case dealt with a federal statute banning the sale of a product called “filled milk.” The measure, which was passed as a favor to the dairy lobby, was devoid of constitutional authority – but the Supreme Court upheld it in the interest of “state-building,” and in doing so it promulgated a new doctrine of “presumed constitutionality.”

“The Court’s reasoning was that the statute should be presumed constitutional, and thus the burden was on the defendant company to prove that Congress could have no constitutional authority and no lawful basis for regulating the sale of the product – a nearly impossible showing,” recalls Judge Napolitano. “By requiring a presumption of constitutionality instead of a presumption of liberty, the Court permitted Congress to transgress economic liberties for almost any reason it wished.”

That presumption invests the federal government with something akin to constitutional infallibility: Between 1937 and 1995, as Judge Napolitano observes, the Supreme Court didn’t strike down a single piece of federal legislation on constitutional grounds. 

Many people blessed with sound, sober, and subtle minds believe that all of this represents a “perversion” of the original constitution. Others, such as the ever-perspicacious Butler Shaffer, insist that the federal government has "never deviated" from the Constitution: The document was written in a way that encouraged government expansion and provided the means to accomplish it while sustaining the necessary illusion that its powers were effectively limited by law and its administrators were in some sense accountable to the people they rule.

Any governmental charter permitting seizure of property through "eminent domain" and the suspension of habeas corpus (the irreducible due process guarantee) for any reason is latently totalitarian at best; those provisions offer a glimpse of the “secret constitution” described by Fletcher, in which federal power is limited only by the ingenuity and brazenness of those who wield it. 

Many conservatives reacted to Judge Roberts’ Obamacare ruling by giving voice to the same pious outrage they express every time the Supreme Court redefines the “social contract.” A healthier reaction would be to ask: Why should any individual be governed by a “contract” that he never signed, and that the other party can unilaterally revise at its pleasure?

Dum spiro, pugno!