Anything Goes

I have been thinking more about the recent Supreme Court decision and its implications for the future of liberty in this country.  Let me just say that I don’t think the future looks good.

Essentially, what I got out of the decision is that the Congress does not have the enumerated power to force you into a particular action.  However, according to the interpretation, Congress does have the power to tax.  So, while the Congress cannot force you into action, it can tax you for non-action.  Therefor, I can only conclude that the recent SCOTUS decision reads something like this:  “we cannot force you to murder your first-born child (or whatever other action we do not have the power to enforce), however we can tax you for failure to do so.”

Since there is no check upon the level of taxation that the Congress can levy, and it can now tax you for any non-action it deems fit, what limits or checks to power remain?  I say, “None”.  Apparently, we now live in a world where anything goes.

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3 Comments on “Anything Goes”


  1. I’m writing here out of almost complete ignorance (although I suppose I should probably be a bit more knowledgeable about this kind of stuff — I did take a class on this stuff), but I wonder what the difference would be in an America with no Supreme Court. I figure there would be a large difference if one considers the role of the Supreme Court during the 1930s, but would it really be that much “worse?”


    • Yes, part of the problem with the SCOTUS in my opinion is that they are always thought of as the last word. I don’t see this as a correct way of dealing with Constitutional problems, because you’ve effectively created a panel whose opinion is sovereign. It would be nice to say that in the absence of a SCOTUS that the people would be the final word, but that is ultimately what we have now, and they (the people) instead relinquish this power to the SCOTUS (probably more out of ignorance than anything).

      Would it be different? Sure, but probably not terribly so.

  2. bobroddis Says:

    You have to understand that the Vieira/Tom Woods/Kevin Gutzman understanding of the original understanding of the Constitution is correct, but that no one who goes to law school has any familiarity with that analysis and does not know it even exists.

    http://www.fame.org/HTM/Vieira_Edwin_What_is_a_Dollar_EV-002.HTM

    I was already a Rothbardian and Austrian when I started law school in 1977. I was a few years older than 95% of the class which graduated from high school after the draft ended in 1973. They were not antiwar or political types. In fact, they had no interest in politics at all.

    We were told emphatically by the professor in constitutional law class that we were not there to discuss the original meaning of the constitution and that we were only going to study modern cases which would allow us to understand which cases to cite in order to win a case in a present day court.

    Thus, lawyers (and thus judges) only know the broad narrative that the Great Depression proved the free market failed and required massive government intervention. Laissez faire resulted in the robber barons and sweat shops. End of analysis and discussion. Economic legislation is basically a priori constitutional unless it is patently “irrational”. Note that the republican law students, lawyers and judges cannot truly be concerned with the scope of federal economic power or else they would not support the ruling that the feds can still arrest sick people for using medical marijuana in states that have legalized it.

    Sometimes, there will be an admission that the court changed the basis of its rulings as a result to the new understanding of economics derived from the Great Depression:

    The first example is the line of cases beginning with Lochner v. New York,37, which, as the Court in Casey stated, “imposed substantive limitations on legislation limiting economic autonomy in favor of health and welfare regulation, adopting in Justice Holmes’s view, the theory of laissez-faire.”38 The Court in Casey went on to say that: “The Lochner decisions were exemplified by Adkins v. Children’s Hospital of District of Columbia,39 in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish,40 signaled the demise of Lochner by overruling Adkins”.41 The Court in Casey concluded as follows: “In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of constitutional freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare ….The facts upon which the earlier case had premised a constitutional resolution of social controversy had proven to be untrue, and history’s demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced.”42

    42 Id. at 861-862. As Professor Laurence H. Tribe has observed: “In large measure, however, it was the economic realities of the Depression that graphically undermined Lochner’s premises. No longer could it be argued with great conviction that the individual hand of economics was functioning simultaneously to protect individual rights and to produce a social optimum. The legal ‘freedom’ of contract and property came increasingly to be seen as an illusion, subject as it was to impersonal economic forces. Positive government intervention came to be more widely accepted as essential to individual, family, and community survival, and legal doctrines would henceforth have to operate from that premise. Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 1358 (3rd ed. 2000).

    From a paper by Robert Sedler


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