Don Quixote and I were talking today about the Commerce Clause. We weren’t saying anything original. We were simply wondering whether the Supreme Court, in ruling on ObamaCare, will address the vast reach of the Commerce Clause and whether it will (a) reaffirm that reach; (b) reverse that reach entirely (which requires reversing the 1942 decision Wickard v. Filburn); or (c) chip away at Wickard because destroying it in one fell swoop would create a constitutional crisis.
Right now, the pro-ObamaCare people are actually correct when they argue that there’s no real difference between Wickard and ObamaCare. In the former Congress forced a farmer to grow wheat, and the Supreme Court gave that coercion a judicial nod. Under ObamaCare, Congress is forcing Americans to buy insurance, so why shouldn’t that get the nod too?. We can parse the difference by saying that the real issue is whether the federal government benefits from the forced activity (which is essentially a tax) or whether third party companies profit (making the coercion a form of something else).
The real issue, though, isn’t where the money goes. It is, instead, determining how far Congress can go in dictating American activity. After all, to the extent our money supply is federal, every decision we make, including the pennies we toss into a Salvation Army pot, implicates federal monetary policies.
That talk led DQ and me to the intersection between taxes and religion. The Constitution guarantees that the Federal government will not establish a religion and then force Americans to yield to that government church’s doctrines. That right has been understood to mean that citizen’s religious beliefs are excluded from Congressional oversight.
The Constitution, however, also authorizes Congress to extract taxes from American citizens and nowhere does it say that citizens can withhold those funds based upon their religious beliefs. To the extent that the Quakers were already a pacifist organization at the time the Constitution was first ratified, it cannot have escaped the Founders’ notice that, by specifically authorizing War powers in the Constitution, they were requiring pacifists to fund any war started under that constitutional power.
Beginning with the Vietnam War protests, peace activists of all religious and non-religious stripes have objected to having their tax dollars spent on War. Two constitutional principles — the federal government’s authorization to wage war and the individual’s absolute right to freedom of worship — are in permanent opposition.
What do you think? Does the natural right of the individual to freedom of worship trump the government’s power to tax and wage war? Or is taxation and war such an inextricable aspect of government that civilization functions only when people cannot opt out?
My feeling is that, to the extent we have a republican democracy, those who don’t like war have the option of voting into power others who share their feelings. If a sufficient majority of anti-war activists enter Congress, Congress can refuse to fund wars (as it did when a Democrat congress abandoned the South Vietnamese); or it can enact laws allowing people to deduct a certain percentage from their taxes, equal to the percentage cost of war in the federal budget; or, if the anti-war crowd has sufficient numbers, it can amend the Constitution to turn America into a pacifist nation or one that sees only pro-war people pay for war.
For me, this is an idle (albeit enjoyable) mental exercise, but in the larger scheme of things it’s not. It is, instead, the real deal in determining whether, when it comes to core religious or moral beliefs, the government or the individual prevails.
In the context of the ObamaCare debate, it ties back into the mandate requiring religious institutions and organizations to pay for insurance that will provide birth control and abortifacients, even if those practices are antithetical to the payors’ core doctrinal beliefs. I can understand how there could be a battle royale when it comes to asking pacifists to pay for war, since there are two conflicting constitutional rights involved. I do not understand, though, how the government can force people to abandon an explicit constitutional right (freedom of worship) in favor of a right there is nowhere mentioned in the constitution — women’s alleged right to free birth control and abortions.
All of which leaves me very curious as to the ultimate outcome of the ObamaCare decisions.
As always, I love hearing your opinions, especially since so many of you are better informed or more analytical than I am.