Obamacare and the Revenge of the ‘Secret Constitution’ by William Norman Grigg (“… 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.”)
“[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.”
“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.”
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 19th 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
- Occupy and the Constitution, Part 2 (dailykos.com)
- (Col Sellin: Winning Elections Requires Throwing the Constitution Under the Bus) Family Security Matters (gunnyg.wordpress.com)
- Ezra Klein: Why Republicans Used to Support and Now Oppose the Individual Health-Care Mandate (delong.typepad.com)
- Obamacare and the Revenge of the “Secret Constitution” (informationliberation.com)
- What Roberts Achieved (themoderatevoice.com)
- More death throes of the Constitution. Nothing remains in the ruins but politics. (fabiusmaximus.wordpress.com)
- Keep the message simple: Obey the Constitution! (wnd.com)
- What Roberts achieved (prairieweather.typepad.com)
- Tuesday round-up (scotusblog.com)
- Opinion: The little argument that could (cnn.com)