As the day of judgment approaches, half the country sits waiting for a small group of men and women to decide how many of our civil rights we get to keep. After two flawed decisions that draw not from the Constitution, but from policy and opinion, we wait hopefully for a third opinion that will set us free.

Today the Supreme Court is slightly tilted in our favor, which is to say that it has a few members who believe that the Constitution is more than blotting paper for their opinions, and that individuals and states have rights, rather than just being troublesome cogs in the mighty machine of the national policy apparatus bent on tackling one growing crisis or another.


The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin ScaliaChief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg.

How long will that tenuous state of affairs endure? Who knows. In the meantime we are caught between an omnipotent executive who believes that he is above the law, an unelected court which includes two of his appointees, one of them his lawyer, and a Congress which does little except spend gargantuan amounts of money. And our best bet is the court, because it is the hardest to bribe and some of its members believe in the law, rather than in the almighty policy ends that justify all means.

When the highest official in the land decided to sell the American people into slavery to insurance companies to get his landmark legislation passed, we took to the streets to protest, we changed the composition of Congress, and here we are waiting for the Supreme Court to decide that maybe we aren’t the property of the Executive Branch, warm bodies to be traded at the slave market of policy to get a bill passed.

147 years after the passage of the Thirteenth Amendment, we are back to debating slavery. But it’s not a debate that began today. Everyone who pays taxes can calculate how much time they spend working for their masters in Washington, D.C. How much of their income the serfs are obligated to send home to the barons in the white palaces who will decide how much of it to hand out to their friends and how much of it to use on the endless expenses of government.

Around the same time as the evils of racial slavery were being fought, the building blocks of economic slavery were being hammered together with the Revenue Act of 1861, the first Federal income tax and the first attack on the Constitution, that concluded with the Sixteenth Amendment. One hundred years before the election that brought Obama to power, the Democratic platform called for an income tax, “to the end that wealth may bear its proportionate share of the burdens of the Federal Government”.

The burden has grown vastly since then. It has grown out of all proportion. And to achieve its goals, the government began selling off its assets. Its chief assets are us.

The ObamaCare Mandate is a fairly simple trade between health insurance companies, which largely owe their existence to government tinkering with the health care market, and its government patron. In exchange for giving the government what it wants, the government gives them what they want, us. 

Supporters of the Mandate have been legitimately confused by all the protests. As they understand it, we are property– so why are we complaining about being rented out to another master? If Obama and Congress own us, why can’t they lease us out to their supporters in the insurance industry? Especially when it’s for the greater good.

Today we’re being leased out to the health insurance industry. Tomorrow we might be sent out to go bring in the harvest, the way that citizens were compelled to in Communist countries. Once we have been designated as warm bodies for sale to the highest bidder, when there is, what politicians can describe as, a legitimate concern, then there is absolutely no end to it. And when China finally decides to recoup some of its investment, there will be a mandate for that too.

The Constitution has been so comprehensively violated and we have been deprived of so many rights that defending any right becomes a rear-guard action. After so many violations, we take a stand on the chalk outline of the latest outrage, while having to argue that this is the red line. This is the one that is too much. And we put our faith in a Supreme Court that occasionally respects the Constitution and occasionally creates its own Constitution. And we sit here waiting to find out which it will be this time. Freedom or slavery.

Even a Supreme Court defeat for the slavery of the state mandate will not be the end of the story.  

The policy machine that grinds on in Washington, in state capitals, in municipal city halls and in the halls of a thousand think-tanks and the banquet rooms of a hundred forums is built to deprive people of their rights. It is not easily stopped. Even when the Supreme Court rules against it, it studies the ruling and attacks it from another angle until it gets its way.

Many of the modern violations of our rights went through this process, losing a Supreme Court decision and then finding another way through the door. Once the policy apparatus has agreed on something, the mere objection that it is against the law will not halt them for long. The only way to stop the machine is to break the machine. To tear out its levers and gears, to fill it with sand, spill out its oil and turn it to grind uselessly facing a wall.

A Supreme Court of Constitutionalists might deal it some serious setbacks, but it has become clear that we are headed into dark territory where the laws don’t matter anymore. Obama has shed most of the pretense of legality, doing things because he wants them done. The legal rationale for ObamaCare never existed. Those who wrote and passed it did not believe that such a rationale was even needed.

Their only argument has been the policy argument, the ends justifying the means. The policy ends which justify the oppressive means is their argument for every one of their endless streams of abuses. It is a position that places them and their actions completely outside the law. Anything they do is justified because it is for the greater good, to meet one “growing crisis” or another, whether it’s health care, obesity, racism, bullying, profiteering, homophobia, high prices or anything you see discussed with serious faces and even more serious hairdos on the evening news.

Even Supreme Court rulings depend on executive compliance. Obama has demonstrated several times that he will simply not comply with the law. And a showdown between the law and an executive backed by the media and a parade train of experts, not to mention a completely corrupt Attorney General, will not be a pretty sight.

The mere willingness of the executive branch to operate outside the law acts as a restraint on the Supreme Court’s willingness to challenge the executive. That is what FDR managed to accomplish by alternately terrorizing and bypassing the Supreme Court. Obama has shown every sign of being willing to do the same thing. Some liberals are already proposing their own court packing schemes. TheWashington Post has an article calling for upping the number of justices from 9 to 19, which is certainly one way to gain a majority.

The left has gotten this far by subverting institutions and it is being increasingly open about not caring for the forms or for anything that interferes with its objectives. As a defense against it, the Supreme Court is a fragile entity. It is meant to serve as a final review for a law-abiding legislature, not for a thuggish executive and a legislature that passes bills without knowing what it is in them. In an era in which the executive, the legislative and the judicial branches have all been warped, none of them can be relied on to do the right thing.

We are in the midst of another Civil War. Not a war of bullets, but a war of laws. And the lawmaking apparatus is a tool for depriving people of rights, not a tool for creating safe spaces for rights. In the firefight, those who want to limit rights through government mandates will have the upper hand. The Supreme Court, as a reviewing body, is less vulnerable to the seduction of legislation than the legislative and executive branches, but it has done its share of legislating, and activist Federal judges are a reliable way of subverting democracy and states’ rights.

We can’t depend on the Supreme Court to do the right thing, though it can occasionally be an important ally in the struggle to restore the Constitution, the rule of law and the rights of the individual. The ball is not in their court, it is in ours. And it is important that we understand what is at stake. Behind all the policy debates is a simple question. Do we want to be free men and women or will we agree to be slaves?

The final review of every act of government does not come from within the government, but from the people, who have to decide what is acceptable and unacceptable. This is a law of human nature that is not subject to any higher court, only the court of the conscience. Rights and freedoms do not come from government, they come from the people. We have seen how in Egypt, the people chose slavery. That makes it all the more vital to remember that, no matter what we are told, we have a choice, and the greatest power that we have is the knowledge that the choice and the final decision are ours.

From NY to Jerusalem, 

Daniel Greenfield

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