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Is Economic Freedom Still Imaginable?

The nation will be holding its political breath this week when the U.S. Supreme Court spends three days hearing arguments about the constitutionality of ObamaCare. Though the issue is split into three parts, the main event will be on Tuesday, as the question of whether the Commerce clause of the Constitution can be interpreted in such a manner as to allow the government to require Americans to engage in commerce rather than to merely regulate it is debated.

For most liberals, including President Obama and the Democratic majority in Congress that rammed this law down the throats of an unwilling people two years ago, the notion that there are any such limits on the power of the federal government is laughable. To be fair to them, they do have much of the history of 20th century American politics on their side. During the last century, Washington’s power has expanded to the point where there is almost nothing that can be imagined that can’t be justified by the Commerce clause. That’s why this case is so important. Barring an electoral revolution this November in which Republicans sweep both Houses of Congress and the White House, we will have lost our last chance to preserve our freedom.

As with so many contemporary political debates, the two sides have been talking past each other with opponents of the law discussing the principle of individual liberty and the fear of government compulsion and the proponents merely sticking to what they see as the undeniable benefits of the law and viewing the arguments on the other side as if they were a colonial remonstrance against the Stamp Act. Never was that made clearer than in an opinion piece published in the New York Times last week by Linda Greenhouse, the paper’s longtime Supreme Court reporter.

Greenhouse summed up the liberal response to challenges to the constitutionality of the individual mandate by merely dismissing them. She acknowledges that “half the public” believes the law is unconstitutional because they think the government ought not to have so much power. But while she concedes that this is “rhetorically powerful,” she contends it is “simply wrong.” She thinks so little of the idea that we dare not give Washington such unlimited authority that she more or less laughs it off as no more than a quaint notion of a long passed era. So lacking in respect for this notion, she merely laughs it off, asserting, “There’s just no there there.”

While she attempts to “unpack” all the arguments against the mandate’s constitutionality, she hones in on one idea, that of it being “unprecedented.” And it is on that ground, she makes her fight, asserting that all good things that come from the federal government such as Social Security, Medicare and a host of other congressional acts that are intended to do great good were once “unprecedented.” Her point is that Congress and the Courts have already gone so far in enlarging the scope of government power, why should anyone be bothered by a law that forces people to buy insurance and penalizes them if they don’t?

Why indeed? If we already have a federal leviathan that can do most anything, what’s the problem with stretching the Commerce clause one more bit to allow this latest good thing that will come from Washington? Seen in that light, it’s little wonder that Greenhouse and other commentators think the conservative fussing about liberty is just “rhetoric.”

That is why the Court’s decision is so important. After going so far, it can be argued that there is no way back, but it has an opportunity in this case to stand, as William F. Buckley once described the role of the National Review as to, “stand[s] athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.”

In this case, the Supreme Court has a historic opportunity to assess the drift of liberal governance and to finally yell stop after a century of nodding its acquiescence. If it doesn’t, then we will all understand, as liberals already seem to, that there is no limit to government power. The spirit of liberal fascism that Greenhouse reflects, in which there is no imaginable way our understanding of law can be recast to one in which the government can’t do anything it likes is what the Court will really be voting on here. That’s why this case is a potential turning point in our history. It is that sobering thought should put a halt to ObamaCare.

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