BlaineStorm: The Gravest Danger from Justice Scalia's Death


Hello again, I’m Blaine Winship, author of the book Moralnomics: The Moral Path to Prosperity. This blog, concerning the loss of Supreme Court Justice Antonin Scalia and the squabbles to come over selecting his replacement, is not like anything else you’ll read or hear on this topic. It’s about one factor—probably the single most important factor—that hangs in the balance for America’s future. So please stick with me here, because this is eye-opening news that you simply must know.

In broad terms, we already understand that there is a chasm in modern America. On one side are the so-called liberals or progressives who favor big-government solutions, powered by an ever-growing federal government, high taxes, huge debts, massive redistribution-of-wealth programs, reams of regulations, and armies of well-paid bureaucrats. On the other side are the conservatives, libertarians, and Tea Partiers who favor less government, lower tax burdens, fewer regulations, balanced budgets, and approaches to poverty that aid the truly needy without killing job growth and without destroying incentives for filling those jobs. In the broadest sense, the liberals seek to transform America by removing personal responsibility, replacing it with top-down government that will make our decisions for us, thereby relieving us of the need to grow into full-fledged adult citizens who make those decisions for ourselves. And in the broadest sense, the conservatives, libertarians, and Tea Partiers seek to preserve our right as individual Americans to be sovereigns over our own lives, making our own choices as we see fit and taking personal responsibility for the choices we make.

This chasm has been mirrored by the split on the Supreme Court. On one side are the liberal justices, who feel free to change our Constitution to fit their own notions of social and economic justice. To them, the Constitution does not establish the governing rule of law, but instead should be seen as setting forth flexible guidelines that can be bent this way or that, as the justices personally see fit. On the other side are those justices who believe not only that the Constitution establishes the governing rule of law but also that it is the ultimate source of the rule of law, ordained by us, the People. To them, changes in the Constitution also must be ordained by us, the People, through the formal amendment process established by the Constitution itself.

Understanding this chasm does much to explain the heated differences between the two factions on the Supreme Court as they battle over freedom of speech, the place of religion in society, gun control, privacy rights, and much more. Many of these issues are discussed in my book and my blogs. All of these issues are important, because they go to core moral values—values concerning who we should be as persons, how we should interact with one another, how we should raise our children, and the role that government should play in our lives.

When it comes to our economy and our living standards, there is no more important issue than the role that government is to play with respect to our commerce. In Part V of my book, I explain how our bottom-up economic freedom has enabled us to create the biggest, most successful middle class in history, and how our middle class prosperity has helped to raise living standards around the world. And in Part VI of my book, I explain how our bottom-up political freedom to control our government—and to keep it of, by, and for us, the People—has been undermined in many serious ways by the liberals over the past 75 years or more.

Of the various ways in which the liberals have undermined our freedom and prosperity, none is more significant than the corruption of what was supposed to be a limited power of the federal government over commerce. I’m talking about the Commerce Clause, a short clause found in Article I, section 8 of our Constitution. This clause gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In Chapter 40 of my book, in which I discuss top-down threats to economic freedom and prosperity in modern America, I devote a section to the plain meaning of the Commerce Clause, how it was enacted to allow Congress to referee disputes among the states over the trade barriers they had erected to favor of their own merchants, and how the clause was never meant to give the federal government the power to control our private commercial transactions. Note that the Commerce Clause addresses commerce “among the several States.” It does not address commerce “among the People.” Did the framers of the Constitution understand the difference between the states and the people? Obviously they did, as you can see for yourself if you examine the Constitution and its amendments.

The notion that the Commerce Clause was intended to empower Congress to micromanage our private industry—by dictating prices, quantities, production costs, and other aspects of trade—is preposterous. Nothing is dearer to your economic freedom as a seller than the right to decide what you will produce, how you’ll go about producing it, how much you’ll produce, how much cost you’ll incur, and how much you’ll charge buyers. That’s because it’s your money that’s at stake. Likewise, nothing is dearer to your economic freedom as a buyer than the right to decide what you will buy, how much of it you’ll buy, and what price you’ll pay, because it’s your money.

The idea that a single clause of our Constitution—a mere one out of 18 clauses, in a mere one out of 10 sections, in a mere one out of seven articles of the Constitution’s main body—could be stretched wide enough to swallow our economic freedom whole is absurd beyond words. Yet that is what the liberals on the Supreme Court have set out to do. And they are on the brink of completing that mission. What will that mean for you and your children and grandchildren? Here’s where it gets really scary.

To appreciate this, let’s take a trip back in time to the 1930s. America was caught in the Great Depression, with tens of millions of persons out of work, losing their homes, and standing in bread lines. In my book, I devote much discussion to the Great Depression—how the threat of massive trade barriers combined with tight money supply launched the Great Depression, and how the top-down policies of Herbert Hoover, the progressive Republican President, and of Franklin Roosevelt, the progressive Democratic President, kept the Depression going for year after year, with no end in sight.

I chronicle how Roosevelt sought, as the cornerstone of his New Deal, to have the federal government assume dictatorial powers to micromanage our commerce, including control over the prices to be charged by our businesses and how much they could produce. In this, Roosevelt acted much as Woodrow Wilson had done back during World War I. But we’d been in a full-scale general war under Wilson, justifying some emergency controls over war-related industries to ensure our victory. Those controls were mostly dismantled after the war. When Roosevelt took office, years later, there was no war. But Roosevelt despised the private sector, and he was determined to take control of our commerce away from the economic “royalists,” as he called them, and to transfer that control to an all-powerful central government.

The Supreme Court tried to stop this, shooting down key New Deal legislation as an unconstitutional intrusion on our liberty. Roosevelt struck back, threatening to expand the size of the Supreme Court from nine to 15 justices, so that he could “pack the Court” with new justices committed to giving the federal government the power that Roosevelt wanted. In what’s known as the infamous “switch in time that saved nine,” two justices changed their positions to side with Roosevelt, and the damage was done. From that point on, it was almost universally accepted by lawyers, judges, law professors, and law students that the federal government’s authority to dictate the terms of our commerce was virtually limitless—meaning that any freedom we exercised as to what we could buy and sell, in what quantities, and at what prices, could be taken away from us any time the federal government wished.

It wasn’t until decades later, in the 1990s, that any limit on Congress’s power over our commerce was acknowledged by the Supreme Court. But that was a very slight limitation, to be applied only where there was no plausible connection between a transaction and interstate commerce. Yet even that limitation was hotly disputed by the four liberal justices on the Court.

With the passage of ObamaCare in 2010, a different question surfaced about the federal government’s power over commerce. The issue was whether Congress could force Americans into commerce against their will, by forcing them to purchase healthcare insurance whether they wanted it or not. In the Act, Congress explicitly relied on the Commerce Clause for its authority to do this. Of course, you know that the Supreme Court upheld ObamaCare, by a 5-4 margin. To accomplish this, the Court corrupted Congress’s taxing power.

That was bad enough. But even more frightening is that four of the nine justices held the view that the federal government has the power to force us into commerce against our will.

Why is this so scary? Had there been a fifth liberal justice on the Court, ObamaCare would have been upheld as a valid exercise of Congress’s power over our commerce—meaning that Congress has the power to force us as Americans into commerce, whether we like it or not, rendering us subjects to be regulated by the federal government. If you think I’m exaggerating, then think about this.

When we speak of commerce, and of government’s power over commerce, we must remember that commerce, being the exchange of goods and services, necessarily has both a demand side and a supply side—that is, both a buyer and a seller. One without the other is meaningless, and in no sense “commerce.”

So if the Supreme Court declares that Congress has the power to force us into commerce as buyers on the demand side, it would logically follow that Congress also has the power to force us into commerce on the supply side.

What this means is that the federal government could compel us, against our will, not only to buy goods and services, but also to sell them and—here’s the ultimate offense to liberty—to produce them. It’s bad enough to be forced to prop up General Motors and Chrysler with our tax dollars. It would be much worse for us to be forced to buy their cars. But even that pales when compared with our being forced to work in their plants. The enforcer of this scheme would be the federal government, acting under its unbridled authority over our commerce.

Imagine being conscripted into the military, except that our true masters would be bureaucrats, our terms of service would last as long as they decided, and our pay and working conditions would be whatever they wanted.

The liberal-progressive top-down agenda, carried to that extreme, would result in the ultimate planned economy, transforming America from a nation of bottom-up personal freedom into one of top-down government coercion. Children who tested high for medical aptitude could be forced to become physicians or nurses, and those testing high in math could be forced to become engineers or software technicians, all per the government’s dictates. This is the fate that progressivism’s sister “isms”—communism, fascism, and classic socialism—imposed on hundreds of millions of persons in the last century. Of all the peoples of the world, only Americans would refuse to take this threat seriously.

But it’s high time that we did take this seriously. With Justice Scalia’s passing, the liberals are one nominee away from gaining that crucial fifth vote to expand the federal government’s power over us and our commerce, so that they can finish the job started by Franklin Roosevelt. In deciding which presidential candidate to support, of course we want to consider all aspects of the candidates’ ideas and their character. But of all the factors to assess, nothing can eclipse the importance of electing a president who’ll appoint Supreme Court nominees who are committed to preserving our bottom-up economic and political freedoms as Americans, so that we can live together as fellow citizens and be sovereigns over our own lives. Remember, the next Supreme Court justice will be appointed for life, and will remain on the bench long after the next president has come and gone. We’ve got to get this right.

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