The Daily Caller

The Daily Caller

Naked power and compromised logic

Is there anything interesting in Time magazine’s fawning coverage of the chief justice’s Obamacare decision? Oh yes. The 24th paragraph.

“It’s hard to believe, but generations of Americans considered compromise an admirable quality,” David Von Drehle argues as he concludes his analysis. “Now,” he laments, “the word connotes something bad.”

After all, he claims, the Great Compromise and the Missouri Compromise demonstrate prior generations’ long-standing esteem for compromise. He contrasts that with today’s supposedly compromise-hating culture, in which “a leaky gasket has been ‘compromised,’ and cheating spouses are caught in ‘compromising’ positions.”

It’s a nice theory, but total nonsense. The word “compromise” and its derivations have had both good and bad connotations for over 400 years, meaning “expose to risk or censure” as well as “damaged or discredited.” Thomas Jefferson used the word in its negative sense in 1785, and it was hardly new then, considering that Shakespeare had done the same thing almost 200 years earlier.

You have to wonder why Time’s cover story on the Obamacare decision would resort to spurious word history to advance a dubious sociopolitical critique. It’s as if they just make this stuff up as they go along.

Time lavishly praises Roberts for standing “above the viral, toxic cloud of partisan rancor” and establishing himself as “perhaps the healthiest figure, politically speaking, in government.”

Of course, Time’s Von Drehle would scarcely have extolled the brilliance of the resulting “compromise” if the Supreme Court had decided 5-to-4 to strike down the individual mandate or, better yet, the whole statutory mess.

All of which is beside the point. The court’s decision to uphold Obamacare was not a compromise in the first place. It was a total defeat of conservative jurisprudence. For the first time in over two centuries, the Supreme Court permitted the federal government to force citizens to buy a product.

The result is bad enough, but the reasoning is an illogical muddle.

Roberts says, in effect, that the Founding Fathers would roll over in their graves if Congress used the federal commerce power to force citizens to buy a product, and then he says Congress can get to the same place as long as they use the taxing power to do it.

Roberts concedes that “the statute reads more naturally as a command to buy insurance than as a tax” but stretches to uphold the mandate as a tax even though he had to find that Congress did not intend to invoke the taxing power as a prerequisite for the Supreme Court to hear the case under the Anti-Injunction Act.

“It is not our job to protect the people from the consequences of their political choices,” Roberts said.

Nor is it the Supreme Court’s job to make political compromises.

Instead, the justices are supposed to apply “neutral principles” that transcend any immediate result and provide a reasoned analysis derived from the Constitution. When the court fails to decide a constitutional issue in a principled way, it simply functions as a “naked power organ,” as a court watcher famously said.