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America's Post-Constitutional Culture

By William Smith, FOX NEWS

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.

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