Descent Into Tyranny?


Suppose, dear reader, that, while residing legally in the United States, you choose  not to purchase a daily newspaper.  Perhaps your choice is determined by a concern that all newspapers varnish the truth, perhaps by budgetary constraints.  Suppose that you choose not to outlay your monies on an annual vacation, perhaps because you believe that ‘your nest is always best’, perhaps because of budgetary constraints.  Suppose  that a bigot is elected to the presidency and ‘persuades’ Congress to require you to purchase a newspaper, or  to fine you for not so doing ; to require you to take an annual vacation, or to fine you for not so doing.  Would you not be alarmed, dear reader, by such an invasion of your liberty to engage or not to engage in specific market activities? Would you not view such an intervention as an act of tyranny much more serious than the eighteenth century interventions by King George III merely to tax certain kinds of consumption while yet leaving  his colonists  free to purchase or not to purchase the affected items? 

If the very idea of such an invasion of your liberty enrages you, as it should enrage any man who values his liberty, then think very carefully about the health care legislation that Congress  is now poised to enact and that President Obama is panting to sign into law:

“President Obama’s health-care bill is now moving toward final passage.  The policy issues may be coming to an end, but the legal issues are certain to continue because the provisions of this dangerous legislation are unconstitutional….It is one thing…for Congress to regulate economic activity in which individuals choose to engage; it is another to require that individuals engage in such activity.  That is not a difference in degree, but instead a difference in kind.  It is a line that Congress has never crossed and the courts have never sanctioned.  In fact, the Supreme Court in United States v. Lopez (1995) rejected a version of the commerce power so expansive that it would leave virtually no activities by individuals that Congress could not regulate.  By requiring Americans to use their own money to purchase a particular good or service, Congress would be doing exactly what the court said that it could not do.”   Orrin G. Hatch, Kenneth Blackwell and Kenneth A. Klukowski, ‘Why the Health-Care Bills are Unconstitutional’, Wall Street Journal,  January 2, 2010.

The authors are surely too kind to Congress and the President.  This intervention is not just unconstitutional. It is a greater act of tyranny than King George III ever envisaged.  And he lost his beloved colonies for much lesser transgressions.

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23 Responses to “Descent Into Tyranny?”

  1. Jonathan Dursi Says:

    Are you also leading the rebellion against the tyrannous villiany that is forcing drivers – with their own money! – to buy mandatory liability insurance? Not only regulating the purchase of of a product by law-abiding Americans – a product that the vast majority will never need – but if you don’t buy it, you lose your license – a direct attack on freedom of movement! The next stage is surely requiring a `paper check’ at every street corner!

    To the pitchforks!

  2. Vanity Says:

    Jonathan – I presume the response here would be that you are not required to buy car insurance *unless* you drive.

    With health care, you would be required to buy insurance regardless.

    As far as the broader point: the problem w/ King George was taxation *without representation* not taxation in general.

    If the majority of people support this bill, then what’s your problem with it, Charles? Do you have a problem w/ the tyranny of democracy?

    If your response is simply that this is problematic from a constitutional perspective, then I think a lot more could/should be said about that (starting with the painfully obvious point that health care is *not like* taking a vacation or buying a particular product since we *all already* pay for the healthcare of others in the form of ER medicine). Or are you proposing an entire revamping of our ER and medicinal system?

    Otherwise, your post reads like mere shallow, dangerous emoting.

    • charlesrowley Says:

      These are all good comments. Clearly, the tyranny, if such is involved, is not that of taxation without representation, as was the case with King George. If the government acts constitutionally with respect to requiring unwilling consumers to pay a fine for not consuming health care, then at most it is a tyranny of the majority, a legitimized possibility that the Federalists acknowledged during the ratification process.
      The point that I raise, as outlined by Orrin Hatch and others in the quoted article, is that the imposition most likely is unconstitutional, justified neither under the general welfare clause nor the commerce clause of the Constitution. In such circumstances, the legislation would have connotations of tyranny. That is the point on which I rested my argument. In any event, if the legislation is enacted into law, it will surely be tested on this specific point in the federal courts.

  3. Justin Says:

    The problem with King George was that the government that was levying taxes against the colonists did not include representatives of the colonists. That’s where the slogan, “no taxation without representation” comes from.

    By contrast, you are represented by the government that is passing this health-care bill.

    Furthermore, while not everyone drives, everyone makes use of health care sooner or later. The uninsured drive up health care prices because the public pays for their health care–particularly when the uninsured face medical emergencies and are admitted to emergency rooms. So your car insurance analogy fails.

  4. David Shank Says:

    I believe the colonists’ slogan was “No taxation WITHOUT REPRESENTATION.” A lot of people seem to be forgetting that last part these days.

    Comparing your “plight” with the colonists’ is beyond ridiculous. They shed blood to fight a tyrant who ruled without regard to the public will. By contrast, the American people can halt the course of our government every two years by removing a majority of the House of Representatives, and they can likely reverse that course every four years. So your problem is not that you are subject to the tyrannical whims of a monarch, it’s that your fellow citizens find neither you nor your arguments convincing.

    As for watering the tree of liberty, only patriots will do. Traitors–those who seek to overthrow the legitimate, democratic American government–need not apply.

  5. Leonard Fox Says:

    Is this a bigger infringement on personal freedom than, say, drafting someone into the military? And fining or imprisoning them if they do not comply?

    Is it a bigger infringement on personal freedom than, say, requiring someone to go through an x-ray scanner whenever they want to get on an airplane?

    Is it a bigger infringement on personal freedom than, say, being summoned for jury duty for a case that may last a long time, and fining or imprisoning them if they do not comply? Or being summoned to testify as a witness?

    Is it a bigger infringement on personal freedom than, say, being forced to go to school until you are 18 years old, and being fined or imprisoned if you do not comply?

  6. Robert Hockett Says:

    A *little* knowledge truly *is* a dangerous thing. If you would like to understand just how moronic the Hatch et al piece is, see this post from the following day: http://www.dorfonlaw.org/2010/01/constitution-as-hail-mary.html

  7. Craig Duncan Says:

    No country that has achieved universal health care coverage has done so without either a mandate to purchase private health care, or tax-funded national health care (which of course is in effect a mandate).

    There is a reason for this, namely, the phenomenon of “adverse selection,” in which many of the healthy refrain from purchasing health insurance, confident that they are likely to be treated in an ER rather than to be left to die. Their absence drives up rates for the rest of us, making health care unaffordable for many, who drop out, driving rates up even more, leading more people to drop out, etc. Ezra Klein’s blog has nice clear explanations of this.

    So our choice as a nation seems to be (1) universal health care with a mandate, or (2) a lack of universal health care, or (3) universal health care via magic pixie dust that enables the US to do what other industrial nations have not done, namely, achieve universality without a mandate.

    Two further points:

    (A) Comparing health insurance with vacations and newspapers overlooks the health insurances’s connection with matters of life and death. As commentator Justin says above, everyone at some point needs health care. Those who decide against insurance are in effect taking advantage of the rest of us. They are prepared to take unreasonable risks with their lives secure in the knowledge that the rest of us simply won’t let them die for lack of care (say, by leaving them to bleed to death on the sidewalk outside the ER). Hence, these “opt-outers” are exploiting our good will. A mandate is just a form of collective self-protection against such exploitation. (It’s either this, allow ourselves to be exploited, or become a barbarous nation that refuses life-saving care to others. If the last option sounds appealing, try to imagine the TV news footage of people bleeding to death outside of ERs….)

    (B) Would the constitutionality of the alternative system of taxpayer-provided health care (e.g. “Medicare for all”) be in doubt? If not, then how could the constitutionality of an individual mandate to buy private insurance be in doubt? Both systems are mandates. The latter actually gives the consumer more choice. So if the former is constitutional the latter ought to be too. And why shouldn’t the former (Medicare for all) be constitutional, if other public programs involving mandates (like Social Security) are?

    • charlesrowley Says:

      As a consumer of healthcare, I am sympathetic on economic grounds to the arguments that you advance. However, in terms of liberty it is yet one more step by which a determined government can engross its powers. However justified the invasion may appear to be, each case constitutes a precedent that opens up yet another avenue for the erosion of liberty and the advancement of the state.

      • Craig Duncan Says:

        Liberty is a hugely important value, but so are other values like reducing human misery and giving people a fair shot in life.

        However, even restricing our attention exclusively to liberty, achieving universal health care coverage is not all liberty cost and no liberty benefit. Suppose someone now uninsured is significantly impaired because he cannot afford, say, a hip replacement. Now suppose that as a result health care reform he gets a new hip. Now he is able enough to hold down a job, do his own shopping, etc. On a plausible understanding of freedom, he could surely be said to be enjoying his new found freedoms.

        Of course this doesn’t show such freedom-benefits outweigh the freedom-costs you allude to; no short blog reply could hope to show this, or hope to settle upon the best definition of freedom. Let me just say that I’ve lived for a time in both Britain and Germany, where the government is more involved in health care than even the current proposed US reform envisions. Neither place struck me a dungeon where liberty is a distant memory!

        Moreover, I just can’t see decent health care for all can be achieved without some sort of government involvement. Private health insurers lose money by insuring significantly sick people (people with chronic conditions, say). And since they are in business to make money, if no government regulations require insurers to insure significantly sick people, they won’t do so (hence they will refuse coverage, or will offer it at exorbitant rates they know the sick person can’t afford).

        A chronically sick person’s only hope is to join a large employer with negotiated group rates. But what if the person’s condition reduces his or her employability? In a libertarian society, he or she would have to curl up and die, or hope for massive private charity (and even in the unlikely event such charity arrives, he or she would still live at the whim of others).

      • djw Says:

        So I as understand your position now, this bill is not exactly tryranny, but is slouching toward tyranny; the first step on a slippery slope. But pretty much every other OECD country has made this move, or something like it, most of them quite some time ago. Do you see substantial evidence for this position in these countries?

  8. Evan T. Woods Says:

    Just a quick note:
    Although some British colonials may have complained of “taxation without representation”, the fact of the matter is that, on the British governmental structure, the colonists were “virtually represented”–each MP theoretically represented the interests of each subject of the crown.
    With such foundations, one could, I suppose, use the same reasoning in order to foment rebellion today. Of course, it would be equally spurious…

  9. lagesset Says:

    So, if everyone were required to purchase a social security voucher, instead of the way the monies are currently collected, it would be the same as the health care insurance requirement? Or is that a six of one and half dozen of the other comparison?

  10. Gilmore Says:

    If you take the standard reading/political perspective of the revolution as being purely a rejection of British representative standards and taxation, you have an OK point.

    If you fall more in line with the other line of thought–that we broke away to control our own capital and governance–then it holds little to no water.

    IIRC, the Colonists were taxed at equal or lesser rates than the British mainlanders. If it were greater than the mainlanders, it was a negligible amount at best. Please correct me if I am wrong.

    That being said, this is not about the Revolution (technically), but about the Health Care bill. At this juncture, I pose the question–does it really matter? Were we not heading down this path as soon as the 19th century turned? It is an inevitability. One that I strongly disagree with, but one which leaves us largely powerless.

  11. Anon Says:

    FYI, a radical leftist nutcase named Brian Leiter has linked to this disapprovingly, saying that you are calling for the assassination of Obama.

  12. charlesrowley Says:

    Thank you very much, anon. for informing me about such a crazy assertion.

    President Obama was elected into office by a significant majority of the electorate and has every right to fulfill his electoral mandate to the best of his ability.

    Should he and Congress (and Congress is the driving force on health care legislation, not the President) overstep the mark constitutionally, as I fear may happen, the federal courts will determine whether that has occurred, and if so, will render relevant portions of the legislation unconstitutional. This certainly occurred during FDRs administration. The Constitution is sufficiently robust to deal with legislative overreach.

    In my judgment, President Obama has no special interest in the proposals that I placed under scrutiny. He is anxious to sign off on any bill that Congress can get through, because otherwise his priority policy issue will be viewed as having failed.

  13. ConLawyer Says:

    From a legal perspective, the Hatch/Rowley argument that this bill is unconstitutional is intellectually daft, if not completely unfounded by legal precedent and our traditions. Passing health care legislation is well within the scope of the powers granted to the Federal government under the constitution. I daresay that a near unanimity of constitutional scholars will agree with me. No reasonable person with a basic understanding of constitutional law, attached to reality, believes that this bill is going to be struck down by the courts.

    Rowley can choose to side with Hatch’s idiosyncratic, extremist, and patently wrong-headed view of how the constitution is to be construed. But he should know that he stands on the wrong side of history, in terms of how we have traditionally understood federal powers.

    MOREOVER, all of this breathless handwringing about “liberty” and “tyranny” is really quite offensive when used to critique a reasonable, and rather centrist bill to simply provide health care to some Americans who cannot afford it. Shouldn’t we reserve the word “tyranny” for real acts of tyranny – such as the Bush administrations unprecedented and (often ACTUALLY unconstitutional, as decided by the Supreme Court many times) expansion of executive power? Or China or Russia? These windbags spouting hot air about Obama’s “fascism” and “tyranny” really do an injustice to the cause of precise language and, in any event, guarantee that when there really IS an act of tyranny in the world, the word “tyranny” will have become so cliche that it will no longer mean anything.

  14. Robert Hockett Says:

    jHear hear to ConLawyer’s observations, all of them. These ‘tea party’ people in their (no doubt Chinese-manufactured) tricorn hats make a risible joke of American history and American values, not to mention of ‘socialism,’ ‘fascism,’ and so forth. One almost might say they are ‘crying wolf,’ save that the little boy in the fairy tale presumably at least knew what a real wolf would look like.

    For a fully elaborated constitutional argument on precisely the questions here discussed, in this case by a real live eminent constiutional scholar, see the Dorf Findlaw piece linked to in my own post linked to above: http://www.dorfonlaw.org/2010/01/constitution-as-hail-mary.html.

  15. Gene Callahan Says:

    “They shed blood to fight a tyrant who ruled without regard to the public will. By contrast, the American people can halt the course of our government every two years by removing a majority of the House of Representatives…”

    I find it mind-boggling that people can make this argument. So, whatever the people “will” is OK with you?

  16. charlesrowley Says:

    Yesterday, I removed from this column one of the most famous statements in defense of liberty written by Thomas Jefferson, a statement considered to be so central to his philosophy that it is inscribed on The Jefferson Memorial in Washington, DC. That Memorial is visited by thousands of individuals every year and many eyes from many countries read those words with awe and reverence.

    I removed the statement because I was alerted that this quotation was being wildly misinterpreted by some readers of my column, readers who, perhaps, were unaware of the contributions that Jefferson made to the founding of this nation.

    Jefferson wrote those words in Paris in 1787 and I am entirely sure that they were not intended to cause harm to George Washington or John Adams, or indeed, to any other person.

    The words were written to remind citizens and their representatives that they should be attentive to preserving hard-won liberties. In other words, they are designed to avoid violence, not to promote it.

    It is a sad commentary on the decline in civil discourse in this country that the words of one of the Founding Fathers cannot now be displayed without invoking outlandish motives on the part of those who are attempting to engage in reasoned discourse.

    I have just rejected one comment that advanced such outlandish claims and I shall continue to do so, not least because I do not wish to encourage the sullying of Thomas Jefferson’s words.

  17. KRISTOPHER MCKEE Says:

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  18. grayrider Says:

    CONGRESS MIGHT PASS THE HEALTH BILL WITHOUT VOTING ON IT: A STEP CLOSER TO TYRANNY

    There was a time when I wouldn’t believe that members of congress would be so out of touch with the American people that they would have to resort to underhanded tactics to thwart the will of the people.

    Well, Nancy Pelosi, the Speaker of the House of Representatives, is thinking of doing just that. Representative Louise Slaughter (D-NY) came up with what is now known as the “Slaughter Solution” or “Deem and Pass” that will let the House of Representatives deem the Senate Health Bill as passed in the House without any representative voting on it. Once they use this outrageous procedure, the house leadership can then have additional language inserted into the bill that will satisfy those House Democrats who oppose the bill in its original form.

    Meanwhile, in order for Senate Democrats to be able to use the Reconciliation procedure – a procedure that circumvents the 60 votes needed to overcome a filibuster – the House must pass the Senate Bill ‘as is’, with the exact same wording, before changes can be made. However, the Democratic leadership in the House doesn’t have enough votes to do that and one of the biggest reasons is that the Senate Bill has a provision that allows for taxpayer funded abortions.

    I believe that the Slaughter Solution is not only dishonest and smacks of dirty tricks, but I also believe that it is unconstitutional as is most of the legislation that congress has passed in recent years. Article I, Section VII, Clause II of the U.S. Constitution clearly states: “…the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively…” This newly invented “Slaughter Solution” clearly does not allow this type of procedure.

    The Democratic leadership in the Senate has tried to assure the Democratic leadership in the House that if the House simply passes the bill as it is, the Senate will make changes amenable to the House after the fact. Pro-life House members, led by Bart Stupak (D-MI) are balking at this assurance and pointed to the hundreds of House bills that are currently still wallowing in the Senate. He also wants to see the changes in writing as he doesn’t trust his own party’s leaders.

    If the Democratic leaderhip in the Senate imposes the ‘Reconciliation Rule’ to pass this bill, unfortunately for them, that alone will not be enough to get the bill passed. The reconciliation procedure, also known as the ‘Byrd Rule’ named after Senator Robert Byrd, is already extremely controversial. Senator Byrd is on the record in Congress saying his rule was “Never intended” to pass this kind of legislation, so the House leadership appears ready to adopt the Slaughter Solution instead. If the Slaughter Solution is instituted, the House of Representatives will actually pass the almost $875 billion bill without the members of the House actually voting on it. This is outrageous and smacks of something we would expect from the Russian politburo or a marxist dictatorship.

    Although the “Slaughter Solution” or the “deem and pass” rule has been used in the past, it has never been used to pass legislation as momentous as the $875 billion health-care bill. It is one of three options that Nancy Pelosi said she is considering for a House vote, but she added that she prefers this method because it would politically protect lawmakers who are reluctant to publicly support the measure. What an outrageous statement, particulalrly in view of constitutional requirements of Article I, Section VII, Clause II previously mentioned in this article.

    There is also a 1998 Supreme Court ruling, CLINTON v. CITY OF NEW YORK (97-1374), that said each house of Congress must approve the exact same text of a bill before it can become law. A self-executing “deem and pass” rule would sidestep that requirement, former federal appellate judge Michael McConnell said in a recent Wall Street Journal op-ed and it would be unconstitutional.

    The American people have overwhelmingly rejected this bill, but the President and the Democrat leaders in both houses of congress seem intent on using misinformation, lies, deceit, bribery and any other questionable and unconstitutional procedure to ram this socialist legislation down the throats of the American people without a public discussion of the merits. Why?

    We are fast approaching a point of no return in America. If our Marxist President and the Democratic-Socialist leadership in congress are successful in passing this Health Bill, they will be emboldened to pass other critical legislation on their agenda to bring a free America to its knees. If the Health Bill is passed, they will quickly move to pass an all-encompassing Amnesty Bill, followed by a massive Cap and Trade Bill, a National biometric ID Card Bill and then the takeover of America will be almost complete. All that will be left is for them to come for our guns.

    Let us remember that at critical points in human history, only a few generations have been given the honor and privlege of defending ‘Freedom’ in its maximum hour of danger.

    In 1776, our founders’ generation were given the honor and privlege of defending ‘Freedom’ in its maximum hour of danger, which resulted in the birth of this great nation that is still a beacon of hope to the freedom loving people of the world.

    The generations of World War I and World War II were also given the honor and privlege of defending ‘Freedom’ in its maximun house of danger.

    Today in America, we again find ourselves in a critical point in history, for ‘Freedom’ once again is in mortal danger, just as it was in 1776 and in WWI and WWII. Our generation is facing a different kind of mortal danger to our “Freedom’ because that danger is not coming from some foreign country, king, dictator or enemy combatants, but it is coming from our own federal government.

    Our Founders told us that “Governments get their just powers from the consent of the governed and whenever the government becomes destructive of these ends, it is not only the people’s Right, but it is their sacred Duty to change the government. “

    In 2010, we are now the generation that has been given the honor and privlege of defending ‘Freedom’ in its maximum hour of danger and this is our time to perform that sacred duty. We must stand up, speak up and be willing to actively resist the growing unconstitutional actions of the our federal government that puts the interests of government leaders and the oligarchy ahead of the interests of the people. By definition, this is tryanny.

    Let us act before it’s too late, not just for ourselves, but for our children and our children’s children. I pray to God that we will be successful, for the free people of the world are depending on us.

    GOD BLESS A FREE AMERICA!!!!!!

    John Wallace
    http://www.TeaPartyRep.com

  19. 2010 in review « Charles Rowley's Blog Says:

    [...] The busiest day of the year was January 13th with 4 views. The most popular post that day was Descent Into Tyranny?. [...]

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