America's post-Constitutional culture

Chief Justice John Roberts. (AP)

Conservatives seem stunned that the U.S. Supreme Court ignored the plain language of the ObamaCare statute and upheld the legality of the premium subsidies that will flow indefinitely as the nation’s newest entitlement. Their surprise is similar to the shock they express every time the GOP congressional leadership passes a pork-laden spending resolution that lasts through the end of the fiscal year, essentially denying budget hawks the opportunity to trim federal spending.

This march of federal spending is an entirely predictable outcome.  As foreseen by Tocqueville in 1835, America has developed a post-constitutional culture in which citizens are transformed from independent citizens into weak dependents, fully reliant upon the dispensations and “protections” of government.  The Supreme Court and the Congress are now largely infirm, fatally weakened by the growth of an Executive branch that provides ever-expanding dispensations and “protections.”   The entitlement state has killed the separation of powers.

The fundamental goal of the Constitution’s authors was to ensure liberty; by separating the different powers of government they barred one branch of government from having all the tools to dominate the body politic.  As James Madison wrote in Federalist #47:  “The accumulation of all powers, legislative, executive, and judiciary, in the same hands…may justly be pronounced the very definition of tyranny.”  Over the last 100 years, with the growth in the federal government, the Executive branch has accumulated powers so vast that Madison’s admonition has been reduced to an interesting historical artifact.

Justice Roberts’ opinion in King v. Burwell confirms Tocqueville’s prediction.  He writes that the Court must uphold the statute because, to do otherwise, “would destabilize the individual insurance market”.  In other words, federal benefits must flow no matter what the law actually says. In a feat of verbal gymnastics that would make a German philosopher blush, Roberts explains over many paragraphs that the language of the law is “ambiguous” when it is actually quite plain and simple.  For the Court’s majority, it appears, protecting the flow of premium subsidies is what really matters, not the law.  Roberts’ opinion claimed fidelity to the congressional statute when, in fact, he was simply protecting the political reputation of the Court by avoiding an assault on the entitlement culture.

The Roberts’ opinion is Tocqueville’s nightmare: the citizens of democracy will voluntarily give up their liberty, even to the point of ignoring constitutional prerogatives, in return for care from an all-powerful government.

The Roberts’ opinion is Tocqueville’s nightmare: the citizens of democracy will voluntarily give up their liberty, even to the point of ignoring constitutional prerogatives, in return for care from an all-powerful government.

And, there is now no area of American life in which the federal government does not claim the role of caretaker.  It exists to make college education “affordable to all”, to dispense subsidized healthcare, to provide housing and mortgages, to furnish food and, yes, even cell phones.  It secures access to “free” birth control for young women, and “protects” children against obesity by dictating the menu for school lunches.

This beneficence is not limited to the welfare state or the protection of lower-income people.  Corporate lobbyists swarm Washington to access government largesse. Huge industry sectors – insurance, pharmaceuticals, transportation, construction, defense – are government dependents. As Goldman Sachs will tell you, the federal government’s beneficent interventions can put much money into the pockets of the wealthy. Telecommunications lobbyists help the government in directing the airwaves and Hollywood-backed environmental groups urge the government to increase dramatically the regulations of our food, water and air.

Eerily prescient, Tocqueville characterized the future of American government: “Above this race of men stands an immense and tutelary power, which takes upon itself alone to secure their gratifications, and to watch over their fate. That power is absolute, minute, regular, provident, and mild.”

Because the Executive has emerged as the “immense and tutelary power”, the era of constitutional government has largely ended. The immensity of the Executive has transformed the Congress and the Judiciary into political irrelevancies who, despite their rhetoric, act primarily to grease the skids of the Executive’s so-called beneficent dispensations, protections and regulations. 

Consider the role of Congress in a post-constitutional era.  To the authors of the Constitution, the Legislative branch was potentially the most powerful and the most dangerous branch because of its close proximity to the populace. For this reason, certain precautions were taken to make the legislative branch less potent, such as creating a bi-cameral legislature, granting veto power to the president, and establishing judicial review.

In the post-constitutional order, however, the Legislative branch is largely powerless in the face of an Executive that is the fountainhead of popular gratifications.  Even legislative leaders with large majorities are unable to utilize their overwhelming power of the purse to fight off the Executive.  The Executive branch now stonewalls congressional investigations with impunity and blatantly ignores congressional statutes.  In the face of breathtaking encroachments by the Executive, both Speaker Boehner and Majority Leader McConnell have publicly eschewed a “government shutdown.” They know the post-constitutional culture will not tolerate turning off the spigot of governmental largesse; they have surrendered their most powerful tool because they fear the new entitlement culture. Members of Congress want, above all, to win their next election.

Over the last century, Congress has abdicated the major powers it was given in Article I of the Constitution. The Federal Reserve coins money and manages the economy, not the Congress.  Trade agreements with foreign nations are done by the Executive on a “fast track” with little input from Congress. The Constitution directs the Congress to “raise and support armies” and yet military base closure decisions are made by unelected commissions. The Congress is happy to let the President decide questions of war and peace; we have gone to war in Iraq again without a new resolution by Congress.  And, of course, Article I provides Congress with the authority to “establish a uniform rule of naturalization”, i.e. to regulate immigration – res ipsa loquitor.

Congress is now the weakest branch. More importantly, Congress has intentionally enfeebled itself to get in on the game of spreading government largesse and protection. The deepest desire of the post-constitutional congressman is not to decide the great and important questions facing our nation such as war and peace, but rather to hold hearings on the menu for school lunches, to add new benefits under Medicare, or to issue yet another press release about a newly-funded bridge for the district.  (My congressman recently communicated with me concerning household preparation for a storm, urging me to stock up with water, etc.)  Congress, in short, is no longer a serious branch of government that grapples with the serious responsibilities it was given under the Constitution.

This is a now a cultural challenge, no longer one that our political or constitutional systems can address.  The political unpopularity of government shutdowns should indicate to conservatives that our national culture is now firmly post-constitutional. Members of Congress and GOP presidential aspirants can hold hearings and press conferences, can appear on Fox News, and can criticize the Executive but what they cannot do --- what they will not do – is weaken the Executive’s role as the nation’s great benefactor.

Conservatives have “won” the Congress and lost the culture.  The archetypical American of the 18th and 19th century-- independent, self-sufficient, resourceful -- is fading into history as a representative American is now more likely to be a bailed-out investment banker or the recipient of an “Obama phone”.   Congressional leaders are therefore not obtuse in avoiding government shutdowns.

Now, consider the post-constitutional Judiciary. The latest ObamaCare decision cements the role of the Supreme Court as the Executive’s lap dog in the protection of government power, the plain text of the law notwithstanding.

Under our original constitutional system, the Judiciary would have seen its role as checking the excesses of an imperialist Congress or Executive.

Yet, the first time Chief Justice John Roberts faced the possibility that the Supreme Court would block the dispensation of healthcare benefits under the Affordable Care Act, he knew the culture would not tolerate a Court that placed constitutional principle in the way of government beneficence.  Therefore, Roberts twisted himself into a constitutional pretzel in order to accede to the tutelary power of the Executive.

Now, despite the clear intent of the law -- that premium subsidies should operate like Medicaid with state buy-in – the Court again has chosen to protect the federal entitlement state and shirk the separation of powers. Even the FDR-era Supreme Court was cognizant of their constitutional responsibilities when they moved to block the growth of the Executive; like the Congress, the Roberts Court seems to see its primary role as the dispensation of entitlements and other benefits.

In this light, the Tea Party’s platform of returning to the “principles of the Founding” are poignant, but impossible.   Truly returning to the principles of the Founding would require the dismantling of the entitlement state. The idea that the American “people” would support this dismantlement, in all its particularities, is a political fantasy. Leaders of both political parties have been adding entitlements, not dismantling them. The entire superstructure of the American political order is now built upon the benefit-dispensing and regulatory power of the federal government and no successful politician has seriously challenged this fact since the New Deal. Even President Reagan could create only a pause, not a reversal, of this trend; President George W. Bush, the last Republican president, accelerated the trend dramatically.

President Obama, on the other hand, knows quite well that we live in a post-constitutional culture. His entire political program is agnostic about what he would view as constitutional niceties.  The Congress may huff and puff, make threats and bluster, but they are powerless in the face of the mega-state that is now the Executive branch. Without fear, the president can ignore congressional laws, laugh at their investigations, and launch political attacks on the Supreme Court as they deliberate. He knew, as Republicans voters did not, that the 2014 elections would change nothing and, over the long run, the Supreme Court will largely genuflect before the “tutelary power” of the Executive. Justice Roberts conceded, at the end of his opinion, when facing laws such as ObamaCare, the role of the Court is “more confined.” Mercy.

Tocqueville warned that American liberty would be threatened not by swashbuckling dictators and coup d’etats, but through the “soft” tyranny of a government that takes upon the role of national nanny, protecting the child-citizens from every potential adversity.  With this latest Supreme Court decision, it is clear that we now reside firmly in the post-constitutional culture that Tocqueville predicted. Our constitutional republic is now passing over the horizon, what will replace it is yet to be seen.