On the Roman Republic's Decline and U.S. Politics

While I was recently reading relatively new history of the Romans (B. Campbell, The Romans and Their World), I ran across a few passages that resonated as having more than superficial connection to the contemporary western, and especially American, political scene. What made them so vivid was that in the main these passages were quotations or paraphrases of ancient Roman historians themselves.  Let me briefly discuss three of them:  signs of a declining culture (Sallust), lust for personal political power (Florus), and moral descent and civic paralysis (Livy).

Emotionally Invested in the Union

Yesterday Scotland voted on the question of whether it would remain in the United Kingdom or secede to become an independent nation.  Today the results showed that the "No" vote -- no on separating -- carried by a margin of approximately 55% No to 45% yes.  Historic, yes this vote was. But I am writing because of the mystery surrounding how personally I took it.

It was personal in a way that I cannot fully explain.  I was pleased with the outcome.  I wished for Scotland to remain in the union.  But why?

I have Scottish heritage, but I also have English and Irish and French.  I am an American citizen, and so I had no say in the matter regardless.  I do not have living relatives who live in Scotland or England or Northern Ireland and therefore who would be directly affected.  So why was I so anxious leading up to the vote?  And why was I so pleased when I woke this morning early and read before 5 am that Scotland had voted to remain in the union?

I have reflected on my emotional investment for some time, at least in the weeks leading up to yesterday's vote.  The key question was why.

I have long appreciated the Scottish contribution to much of enduring influence.  There is, in no certain order, the valuable legacy of Francis Hutcheson, David Hume, and Adam Smith to moral philosophy.  There is Smith's broader contribution to global economics.  There is Thomas Reid's common sense realism, which affected so much of certain strands of western epistemology and even Christianity (particularly among Presbyterianism on both sides of the Atlantic).  There is golf.  There are tartans.  There is the brogue.  There is Sean Connery.  There are the picturesque Highlands, poets like Robert Burns, haggis, and contemporary philosophers like Alasdair MacIntyre.  And there is, of course, single malt Scotch, smokey, peaty pleasure in a wee dram -- or more than just a wee dram.

But this appreciation, maybe even nostalgia, could equally tend toward favoring Scottish independence.  Why then did I favor union?

It is hard to say.  I agree with Alan Greenspan that a vote for independence would have "surprisingly negative economic consequences."  The unknown -- unknown challenges, unknown blowback -- is a greater risk than the certainty of sovereignty.  Symbolically, at a time when Europe is struggling to preserve its own political/military experiment which is the European Union (and let us not forget that the EU is ultimately an economic union designed to prevent military conflict among countries where there has been so much of it through the centuries), it would have been antithetical to the rhetoric coming out of Brussels to preserve union if a member country, Great Britain, experienced a secession.  (Yes, Britain is not part of the monetary union, but it is part of the political union.)

So maybe it is loving the idea of Scotland and its distinctiveness but also wanting the best for Scotland and believing that independence would have brought hardship beyond the naive aspirations of certain older generations (mostly in Glasgow) and the excitable youth.  Maybe there is some desire to see Britain Great, and realizing that England and Scotland would likely be less if they were not connected beyond sharing a land mass.  David Cameron had a fair point, namely, that parties in power will come and go, but a vote to separate would be irreversible at this point.  And hasty actions of great consequence, especially when they involve such far-reaching effects as reconstructing (or doing it from scratch) a national security apparatus, choosing and implementing a currency, and looking beyond the potential immediate boon that North Sea oil assets would provide.  What happens generations from now?

Maybe it is realizing the something great would be lost if there were Scottish independence that made me want to preserve that greatness by preserving the union.

It remains difficult to say.  And maybe it will always be inexplicable.  In any event, tonight I raise my wee dram to 300 more years of united greatness for Britain.

Rorty and Kant on Ethics

The shift from the modern to the postmodern is sometimes described in terms of movement away from foundations, away from an anchor for reality, knowledge, and ethics. Richard Rorty diagnoses a sharp contrast between two constellations of moral views, Kantians and Hegelians. In advancing his theory, Rorty sides with the Hegelians against the Kantians: "If the Hegelians are right, then there are no ahistorical criteria for deciding when it is or is not a responsible act to desert a community, any more than for deciding when to change lovers or professions" ("Postmodernist Bourgeois Liberalism," in Pragmatism [ed. Menand], 330). Rorty's framework oversimplifies Kant's moral philosophy on the "ahistorical" matter, but as a heuristic it captures well an impulse -- namely, to derive ethical criteria from the human condition -- that runs from the Enlightenment, including Kant, to Rorty and beyond.

Nietzsche and Foucault on Domination

Michel Foucault is justifiably regarded as a Nietzschean thinker.  In Madness and Civilization, Foucault adapts Friedrich Nietzsche’s genealogical method of inquiry and extends Nietzsche’s idea that “in all events a will to power is operating” (“Second Essay:  ‘Guilt,’ ‘Bad Conscience,’ and the Like,” in Genealogy of Morals, 514). Influenced by Nietzsche, Foucault interprets the history of madness in Europe in the 16th and 17th centuries as attempts to control or dominate others, especially when society’s morals are perceived to be violated or threatened. 

Was Rousseau an Enlightenment Figure?

I have recently been re-reading some key texts of modernity, which partly explains my blog silence for the last few months.  Among these texts are essays on the Enlightenment by Immanuel Kant (1724-1804) and Jean-Jacques Rousseau (1712-1778).  Sometimes the best questions for learning are the most basic ones.  Here are two:

1. What was Kant's understanding of the Enlightenment?
2. Was Rousseau an Enlightenment figure according to Kant's definition?

Making Sense of Wilson, pt. 9: Universal Impulse

In a prior post in which I reflected on James Q. Wilson's book The Moral Sense, I drew attention to the universal impulse in moral sentiment that he identifies:  "The most remarkable change in the moral history of mankind has been the rise -- and occasionally the application -- of the view that all people, and not just one’s own kind, are entitled to fair treatment" (191).  Because it is so remarkable, and because it has such sweeping implications, it is worth probing further this topic about the development of universalism in moral thinking and practice.

We can begin by focusing on a question that Prof. Wilson himself poses:  "How can we explain the great expansion of the boundaries within which the moral sense operates?  How, in particular, can we explain why we believe that moral rules ought to have universal applicability?  This aspiration toward the universal is the chief feature of the moral history of mankind" (194).  Indeed.

Professor Wilson suggests that the long development of consensual marriage, particularly in northwestern Europe, helps to provide a key, but not the only, component of an explanation.

The link between the two, consensual marriage and universal moral applicability, may not be immediately apparent.  The tie, however, is the parallel development in northwestern Europe of individualism.  What is the connection?

Testing Tolerance

Until now I have tried to stay above the fray involving Chick-fil-A.  I post this only to say that the main point of an editorial in today's The New York Times strikes me as correct:  Government officials, such as the mayors of Boston and Chicago, the Speaker of the New York City Council, and an alderman of Chicago, ought not to discriminate against a lawful business enterprise on the basis of the personal views of the business owner.  Those officials have said that they would block additional expansion of Chick-fil-A franchises in their jurisdictions.

The editors at the Times, as well as NYC mayor Michael Bloomberg, hold a view of the permissible parties involved in and the moral nature of marriage that is opposed to that of Chick-fil-A owner Dan Cathy.  What they both accurately recognize, however, is that the public relations campaign and business threats by government officials against Mr. Cathy amount to intolerance of his religious beliefs and his entitlement both to hold and to express them.  As Mr. Bloomberg is quoted in the editorial as saying, “You can’t have a test for what the owners’ personal views are before you decide to give a [business] permit to do something in the city.”

The Chicago and Boston mayors', the NYC councilwoman's, and the Chicago alderman's views are intolerant because they seek to deny public rights (the rights to pursue property and lawful enterprise) as an attempt to censure private rights (the rights to free religious belief, free speech, and liberty of conscience).  These officials may attempt this in protest to, or as an expression of disagreement about, some other closely-held matter, but they are still intolerant.

And they are intolerant, moreover, because they deny in practice something at the heart of political liberalism, the fact of reasonable pluralism.  In a contemporary democratic society, John Rawls observes, the fact of reasonable pluralism is "the fact of profound and irreconcilable differences in citizens' reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought in human life" (Rawls, Justice as Fairness, 3).  The government officials do this -- deny in effect the fact of reasonable pluralism -- precisely by seeking to banish from their political communities (because they cannot be tolerated) those who differ in moral and civic viewpoints from them.  They do not accept profound and irreconcilable differences in worldview; they wish to eliminate them.  The officials make no room for public debate about how to balance in the community all agreed upon liberties with those that may be disputed.  In fact, they make little to no room for the exponents themselves who hold and express differing viewpoints.

In this vein, a creative thought experiment was narrated by Mona Charen in a column that she titled "Al-Rahim and Chicago Values."  She describes a situation in which a Muslim business owner of convenience stores articulates to a Muslim periodical his belief in the traditional, Quranic view of marriage, which is a man's having not more than four wives.  Apparently this differs from the view of marriage held by the mayors of Chicago and Boston, who go on record that they will do all within their power to prevent him from opening up more convenience stores in their cities, because his personal beliefs about heterosexual matrimony are at odds with their and their cities' approach to marriage and civil unions.  What would the response be to this Muslim man's comments?

This is a thought experiment, because it is retelling the story of Mr. Cathy as Mr. Al-Rahim, the story of a Christian businessman's expression of his personal viewpoint as the story of a Muslim's.  As Ms. Charen explains, "Rahim is an invention to illustrate the selective outrage of liberal Democrats. It is simply impossible to imagine that liberal Democrats would treat affirmations of Muslim faith with the kind of bullying that Cathy and Chick-fil-A have received.  Yet Islam is at least as doctrinally tough on homosexuality as Christianity is, and considerably tougher in practice."

The fact of reasonable pluralism, as Prof. Rawls understands it, is an unavoidable fixture of contemporary democratic republics such as the one in the United States.  It is also, as the present brouhaha attests, difficult to navigate in conjunction with a commitment to the core and treasured liberties of the moderns:  freedom of thought, speech, property ownership, and liberty of conscience.  (I borrow the phrase "liberties of the moderns" from Prof. Rawls; see Justice as Fairness, 140-45.)  As much as definitions of fairness still need to be clarified carefully, about which I wrote in a previous post, so, too, does the concept of tolerance.

Tolerance of a belief is not the same as acceptance of that belief.  In my view, however, in common, everyday practice, tolerance has become in many people's minds synonymous with conforming to, or acceptance of, their viewpoint.  This conception of tolerance is the converse of the popular conception of intolerance:  If you accept my view about P, then you are tolerant; if you do not accept -- do not agree with, do not conform to -- my view about P, then you are intolerant.  Disagreement is designated intolerance; reasonable difference of opinion is often quickly labeled bigotry.

But this popular conception, where it prevails, not only may serve as easy ad hominem argumentation.  This conception evacuates tolerance of all its meaning, for tolerance assumes non-acceptance.  It presupposes disagreement.  It says that a differing viewpoint and the one who holds it are not to be excluded from public discourse and the public square.  Reasonable disagreement will be endured and respected -- tolerated.  By contrast, to be intolerant is to be unwilling to grant equal freedom of expression or to penalize people unjustly for making free expressions.

The fact of reasonable pluralism tests real and workable conceptions of tolerance.  We may not agree with the fictional Mr. Al-Rahim's endorsement of traditional, Quranic marriage.  We may object to the real-life Mr. Cathy's advocacy of traditional marriage as a conjugal union.  These sorts of expression of speech and conviction of conscience are rights protected by the Constitution and enshrined as Constitutional essentials.

What we may not do, however, is this.  In advocating for fairness for all, we may not practice a selective view of fairness for some.  In an attempt to prevent certain Muslims and Christians from supposedly treating a group as separate but equal (for so goes the argument for same-sex "marriage"), we may not treat these Muslims and Christians themselves as separate but equal.  We may not, in other words, claim that they are equal but seek to separate them from our civic and business life.

But this is what the mayors of Chicago and Boston have done.  They say, "You may have your beliefs, but you cannot pursue your conception of life, liberty, and the pursuit of happiness in our community through your business enterprise.  You are equal, but you must remain separate from us.  We can discriminate, but you cannot."  In so doing, that is, by practicing a real separate-but-equal approach to matters of freedom of speech and lawful employment, these officials have undermined their professed moral justification for same-sex marriage on the basis of the same, namely, ending a purported practice of separate but equal.

Whether, in fact, the debate about the definition of marriage admits, as some parties believe, the separate but equal line from Plessy v. Ferguson (1896) is another matter.  The black community, for instance, does not on the whole view the subject in that light, and they might be positioned better than others to know separate but equal when they see it.  Separate but equal sounds nice; it is a powerful sound bite with a known civil rights pregnancy; but I am not sure that upon closer inspection it fully applies.  The debate about marriage seems to me fundamentally about the wisdom and propriety of redefining -- and thereby changing -- an indispensable cultural/civil (and arguably religious) institution, as well as about the moral consequences entailed by such a redefinition.

Be that as it may, the mayoral hubbub about Chick-fil-A demonstrates the ways in which so-called tolerance is frequently championed but inconsistently practiced.  For calling out what would amount to unjust policing and penalizing of law-abiding citizens and businesses for protected First Amendment rights, The New York Times editorial board is to be commended.

A Taxing Problem

Ari Fleischer writes in an op-ed in Monday's The Wall Street Journal about the latest Congressional Budget Office (CBO) report on U.S. taxation.  Mr. Fleischer discusses this in connection with the presidential campaign rhetoric about the income tax system.  He produces a graph, similar to a table produced recently by Harvard's Greg Mankiw, that helpfully illustrates the actual distribution of taxes paid by income level.

Mr. Fleischer's main point is this:  "If fairness in paying taxes means the amount you pay is based on the amount you make, then the only group in America paying at least a 'fair share' is the top 20% — people who make more than $74,000. For everyone else, the tax code is a bargain."  He substantiates his position based on a comparison of data that is summarized in the following graphic.

Based on the CBO report, Mr. Fleischer examines "the top 20% of income earners (over $74,000).  They make 50% of the nation's income but pay nearly 70% of all federal taxes.  The remaining 30% of the tax burden is borne by 80% of the taxpayers, those who make less than $74,000. In short, this group's share of taxes paid, 30%, is lower than the share of income they earn, 50%."

He compares not just income level to percentage of federal taxes paid in the period under review (through 2009).  He also tries to put this into historical perspective:

the share of taxes paid by the top 20% has gone up over the last 30 years, while the share of taxes paid by everyone else has gone down. … The top 20% in 1979 made 44.9% of the nation's income and paid 55.3% of all federal taxes. Thirty years later, the top 20% made 50.8% of the nation's income and their share of federal taxes paid had jumped to 67.9%. … Meanwhile, the federal tax burden on middle- and lower-income earners is lighter. In 1979, the bottom 20% paid barely any taxes at all, just 2.1%. Now their share of taxes is a minuscule 0.3%.

I doubt that the data that Mr. Fleischer presents will be disputed.  What will be disputed is his interpretation of the data.  It is important to remind ourselves of this distinction (data and interpretation of it), even generally, because it will help to clarify the moral issues that are debated and thereby to promote improved public discourse.

Although I sympathize with the perspective that Mr. Fleischer advances, I also think that he misses something critical to the ongoing national conversation about monetary and tax "fairness."  This is a complicated topic, but let me offer one observation.

When the president and others object to the current tax system on the grounds that many citizens do not pay "their fair share," they are objecting, among other things, not just to the rate at which certain citizens pay taxes (that the rate is too low) but also to the level of income on which taxes are paid (that the level is too high).  It is both the tax rate and income level, taken together and with a view to a certain social end, that is viewed as unfair.

To say the same thing slightly differently, the issue in question is both the progressivity of the tax system and the spread between income levels.  The wide spread between income levels now versus thirty years ago -- that is, the difference in earned income between the top and bottom quintiles -- may in fact be what prompts the outcry for greater progressivity in taxation than prevails at present.  (This income discrepancy, by the way, is not a uniquely American phenomenon.)  

I suspect that if the spread were narrower, then demands for greater tax fairness might be more muted.  If some people did not make so much more money than others, then the issue might not seem in certain quarters to be so problematic.

This is important to note.  It is a sense of unfairness about the spread between income levels that is effectively prior to -- and therefore it is this that motivates -- the sense of unfairness about the spread between average tax rates and share of income taxes paid.  The widening income gap seems to some to be wrong (unfair); so current taxes paid on the high levels of income also seem to be wrong (unfair).  At issue, in other words, is the understanding of fairness itself.

Mr. Fleischer himself seems to recognize this, which is why he begins the op-ed in the way that he does, namely, by proposing one understanding of fairness:  that "the amount you pay is based on the amount you make."  This is fairness as equity.

His construction helps him to make his case, since he presents his data in light of that construction.  He spotlights disparities in taxation relative to earnings.  He, too, identifies unfairness; however, it seems to him to be "unfair" to those who have higher incomes.  It is not unfair because they have higher incomes.

When viewed thusly, Mr. Fleischer's objection may not be to progressivity itself but to the degree of progressivity:  that discrepancy in taxation is out of proportion to the discrepancy in income earned; it is too progressive; this spread is too wide.  It is not equitable.  The increase in the amount of taxes paid is greater than the increase in the amount of the nation's income earned.  (See the nearby table.)
 

But others will object that "fairness" is not really or ultimately to be conceived in terms of the amount of tax that one pays compared to the amount that one earns.  If it is, Mr. Fleischer will probably win the argument on that assumption along the lines of his op-ed.  According to his detractors, however, fairness is not a matter of proportionality in Mr. Fleischer's sense, whether proportionality of contributions or proportionality according to merit.  The driving sense of fairness on their view is not one of fairness as equity, but fairness as equality.

On this view, fairness is that system which leads to more equal social outcomes regardless of contributions or merit.  (In some versions it may perhaps be fairness precisely in contradistinction to them.)  It is fair to tax people differently, often very differently, if it is done with the goal of making more equal the primary goods of income and wealth (often through federal programs) across society but especially among those defined as the least advantaged.

This view, as I have articulated it, echoes that advanced by John Rawls, justice as fairness, a theory in which what he calls the "difference principle" operates:  "the difference principle requires that however great the inequalities in wealth and income may be, and however willing people are to work to earn their greater shares of output, existing inequalities must contribute effectively to the benefit of the least advantaged.  Otherwise, the inequalities are not permissible" (John Rawls:  Justice as Fairness:  A Restatement, 64; see also 122-24).

According to Prof. Rawls, the operative principle is not equity but his own special brand of reciprocity.  (I say that it is special because reciprocity is usually, is ordinarily, an in-kind exchange between two parties, whereas that in view in Prof. Rawls's theory involves unlike transfers among multiple parties.)  A controlling idea, then, in Prof. Rawls's view of justice, which has been in the air that many government officials have breathed for the last forty years since he first proposed it in 1971, has to do with acceptable differences across society as judged by a notion of reciprocity.  And it is this notion of reciprocity that sheds light on one current group's sense of fairness:

To sum up:  the difference principle expresses the idea that, starting from equal division, the more advantaged are not to be better off at any point to the detriment of the less well off.  But since the difference principle applies to the basic structure, a deeper idea of reciprocity implicit in it is that social institutions are not to take advantage of contingencies of native endowment, or of initial social position, or of good or bad luck over the course of life, except in ways that benefit everyone, including the least favored.  This represents a fair undertaking between the citizens seen as free and equal with respect to those inevitable contingencies. (124)

Professor Rawls advances this notion of justice as reciprocity, or fairness, by way of a thought experiment:  what sort of society would representatives behind a veil of ignorance choose to create in a hypothetical original position?  Policymakers advance something akin to this notion of justice as fairness not in an original position but at a different stage; they regulate society that is in its current position with constitutional essentials already settled.  The goal of many current policymakers is, with reciprocity as a guiding light, to make progress toward the ideal through social and economic legislation and through the administration of related rules (see 47-49).

When politicians say that they only want the group with greater monetary wealth to pay its fair share of taxes, they do not refer to the statistics that Mr. Fleischer adduces.  They appeal, instead, to a moral idea that is not dissimilar to that of Prof. Rawls's, even if it is not directly dependent on his teaching.  The moral idea is that such a wide discrepancy in income as exists now between the top 20% of earners and the bottom 20% of earners -- which has widened over the last thirty years -- is permissible if and only if the wealth amassed by the top 20% works to the greatest benefit of those in the bottom 20%.

These politicians believe that such a benefit has not been realized.  Because the more advantaged seem to be better off to the detriment of the least advantaged, it follows for them that unfairness exists and that greater taxation is a justified means of producing fairness.  And fairness is what would be to the greatest benefit of the least well-off.  Increased taxation -- which is a form of coercive state power -- on one group of society is a justified means of producing "fair undertakings," or just plain fairness, for the rest or whole of society.  Hence, "fair share" on this view is the share that secures a fair distribution of monetary goods across society.

The debate about taxation, precisely because it is tethered to the ongoing debate about the best American political scheme for the future, is not going away soon.  It is therefore critically important to make explicit the assumptions about what is fair that are often unarticulated but that are nevertheless powerfully at work in people's thinking and speaking.  Taxation is a material manifestation of a more formal matter:  competing conceptions of fairness.

Until and unless we engage each other candidly at the formal level, inquiring sincerely about a person's view of fairness and pressing respectfully why that person believes in this sense of fairness and not another, we will be fruitlessly volleying material arguments back and forth.

The Dark Knight (of Taxing) Rises

In an effort at once to sympathize with those who find themselves in the minority and to recognize respectable reasoning through a topic when it arises, I reproduce in full today's rather lengthy editorial in The Wall Street Journal.

A Vast New Taxing Power

The Chief Justice's ObamaCare ruling is far from the check on Congress of right-left myth.

The commentary on John Roberts's solo walk into the Affordable Care Act wilderness is converging on a common theme: The Chief Justice is a genius. All of a sudden he is a chessmaster, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times.

Now that we've had more time to take in Chief Justice Roberts's reasoning, we have a better summary: politician. In fact, his 5-4 ruling validating the constitutional arguments against purchase mandates and 5-4 ruling endorsing them as taxes is far more dangerous, and far more political, even than it first appeared last week.

This is a minority view. By right-left acclaim, at least among elites, the Chief Justice has engineered a Marbury v. Madison-like verdict that camouflages new limits on federal power as a reprieve for President Obama's entitlement legacy and in a stroke enhanced the Supreme Court's reputation—and his own. This purported "long game" appeals to conservatives who can console themselves with a moral victory, while the liberals who like to assail the Chief Justice as a radical foe of democracy can continue their tantrum.

It's an elegant theory whose only flaw is that it is repudiated by Chief Justice Roberts's own language and logic. His gambit substitutes one unconstitutional expansion of government power for another and rearranges the constitutional architecture of the U.S. political system.

***

His first error is the act of rewriting the plain text of a law, instead of practicing the disinterested interpretation that is the task of the judiciary, regardless of the partisan outcome. The second error is converting the health insurance mandate's penalty into a tax. Ninety years of precedents have honed precise and widely divergent legal meanings for taxes and penalties for violating laws or regulations, and they are not interchangeable.

The Chief Justice did not simply change a label—as if Congress said something was a penalty when it was really a tax. Rather, these categories are defined by their purposes and effects, by how they operate in practice. Taxes are "exactions" whose main goal is raising revenue, while penalties punish individuals for breaking the law. The boundaries can blur—legitimate taxes may also have strong punitive aims—but scarcely so in this case. ObamaCare's mandate was designed to regulate individual conduct to help achieve universal coverage. If it succeeds perfectly, it should collect $0.

Even if Democrats had passed the mandate tax as rewritten by the Chief Justice, and they did not, the Supreme Court until Thursday has never held that Congress can call anything it wants a tax. The taxing power like the Commerce Clause is broad, and the courts are generally deferential. But all powers the Constitution enumerates are also limited, and these limits—unique to each power—must be meaningful and enforceable by the legal system.

The Chief Justice's compounding errors deprive the taxing power of any viable limiting principles. Article I, section 8 gives Congress an independent grant of power to "lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States." Taxes must originate in the House, the political body designed to be most responsive to voters. There are also important additional safeguards on the type of exactions known as "direct taxes."

Indirect taxes—"duties, imposts and excises"—are taxes on activities and products. They are passed on by a seller, triggered by a transaction and more or less optional: Consumers don't have to buy taxed goods and services. Direct taxes, on the other hand, are those that the federal government is empowered to impose on individuals as citizens. They cannot be avoided because they are levied on the existence of people.

America has its origins in a rebellion against arbitrary and pernicious taxation and the Framers wanted to make it extremely difficult to impose or raise direct taxes. These can easily morph into plenary police powers, the regulation of private behavior and conduct that the Constitution vests in the states. For this reason, while the taxing power in addition to raising revenue can achieve regulatory results, those regulatory results must be constitutional themselves.

***

That boundary held for 225 years until Thursday's ruling, as the Court had repeatedly struck down Congress's efforts to arrogate to itself police powers under either the Commerce Clause or the taxing power. The Chief Justice ruled instead that the mandate was an unconstitutional exercise of federal police powers under the Commerce Clause, only to transform the taxing power into a license for the federal government to impose taxes whose defining feature is commanding people as members of society.

Chief Justice Roberts concedes that "Congress's ability to use its taxing power to influence conduct is not without limits" and that in the 19th and early 20th centuries the Supreme Court "policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority." But then he writes that "more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures."

His error—or more likely, his deliberate sleight-of-hand—is that this modern jurisprudence does not deal with direct taxes but indirect taxes and income taxes. Income taxes were authorized in 1913 by the Sixteenth Amendment, which was necessary to bypass the other important limit on direct taxes, called apportionment.

The Constitution says that "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken." Colloquially, direct taxes are known as head taxes and they must be spread among the states according to population. Apportionment's onerous limits were meant to protect against abuse and sectional favoritism. If Congress uses direct taxes, the residents of South Carolina will pay the same overall share as Massachusetts, and so forth.

But apportionment would defeat the mandate tax's "whole point," the Chief Justice writes, since every state will have a different percentage of citizens that are uninsured. So he cryptically rules that "A tax on going without health insurance does not fall within any recognized category of direct tax."

But if not a direct tax, then what kind of tax is it? It is not an indirect tax because it applies to a failure to purchase something, what the Chief Justice calls "an omission," not an optional transaction. It is not a tax on income because that merely hits "accessions to wealth," not what people choose or choose not to do with those accessions.

The result is that Chief Justice Roberts has created the only tax in U.S. history that exceeds its own constitutional limits and is meant to execute powers that the Court otherwise ruled were invalid. His discovery erases the limiting principle—apportionment—that constrains the taxing power for everything besides income and excises.

In the process, Chief Justice Roberts has hollowed out dual federal-state sovereignty and eviscerated the very limit on the Commerce Clause that he posits elsewhere in his opinion and that has some conservatives singing his praises. From now on, Congress can simply regulate interstate commerce by imposing "taxes" whenever someone does or does not do something contrary to its desires.

The Chief Justice seems to understand this, so he tries to articulate his own new limiting principle for the tax power. His mandate tax isn't a mandate but merely a suggestion: choose to buy insurance or "pay money into the Federal Treasury, no more," an act he likens to a tax on gasoline. He also temporizes that "taxes that seek to influence conduct are nothing new."

True enough, but the punishments in the tax code for inactivity come in the form of not being able to claim benefits that Congress in its graces bestows. Such as: If you don't borrow to buy a home, you don't get a mortgage interest deduction.

Congress has never passed a tax on a lack of gasoline or a tax on a failure to buy gasoline, any more than Congress can regulate inactivity under the Commerce Clause by telling people to buy gasoline or else pay a penalty. The reality is that Washington would love to regulate the ordinary economic choices that used to be beyond its purview, and now it will be able to abuse the ad hoc "tax" permit that the Chief Justice has given it.

***

The John-Roberts-as-Daniel-Webster school argues that the long-term limits on the Commerce Clause and other aspects of the ruling are a good trade for the loss of upholding ObamaCare, and government excess has now reached its high-water mark and will recede over time. That false hope seems unlikely given the subversion of the taxing power and unleashing a general federal police power. This is equally harmful to liberty and dual sovereignty.

One possible saving grace is that this center-right country remains suspicious of taxation, and therefore the Chief Justice increases accountability somewhat through truth-in-labeling. But note how Democrats are already claiming that the ObamaCare mandate is not really the tax that is the only reason it was upheld.

White House chief of staff Jack Lew said Sunday that "The law is clear. It's called a penalty." Neither sentence is true. On Friday, the Obama re-election "truth team" was even less subtle in a memo titled "They're lying about ObamaCare" that made the same claim. Chief Justice Roberts has created a creature that is not a tax for political purposes but is a tax for constitutional purposes.

Chief Justice Roberts's ruling is careless about these bedrock tax questions, and they are barely addressed by either the Court's liberal or conservative wings. His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government's core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court's legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice's cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court's most important role is to protect liberty when the political branches exceed the Constitution's bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

A version of this article appeared July 2, 2012, on page A10 in the U.S. edition of The Wall Street Journal, with the headline: A Vast New Taxing Power.

Reminders

Big picture reminders are sometimes necessary.  For instance:

• what is legal is not always just;
• what is permitted is not always prudent; and
• what is required is not always right.

Out in the Open

Today President Obama publicly affirmed his support for same-sex marriage.  His position has been an open secret for some time.

Competition and Federalism

"Should governments — of nations, states and towns — compete like business rivals?"

This question opens Greg Mankiw's opinion piece in the Sunday, April 15, print edition of The New York Times.  The column reflects the Harvard professor's perspective, of course, but I found this a fairly even-handed discussion of the subject as it relates in particular to the matter of federalism.  And he approaches it in a somewhat novel way.  After explaining how competition among governments may benefit citizens, he summarizes the economic point in terms of political philosophy:

Whether competition among governments is good or bad comes down to the philosophical questions of what you want government to do and how much you fear government power. If the government’s job is merely to provide services, like roads, schools and courts, competition among governmental producers may be as good a discipline as competition among private producers. But if government’s job is also to remedy many of life’s inequities, you may want a stronger centralized government, unchecked by competition. 

What is noteworthy about this quote and the larger column is not that there exist philosophical differences about the purpose of governments.  Noteworthy, rather, is how the economic notion of competition serves as a helpful heuristic for understanding these political differences.  The point Mr. Mankiw is making is not about what sort of government sponsors a certain type of economic system.  That is well-worn.  His point, instead, it strikes me somewhat afresh, goes the other direction.  It is how one may apply an economic idea as a way of grasping something central about a certain political system.  In the present case, the political system in question is a federalist one, that is, one in which power is shared between a central, national government, on the one side, and discrete, state (and local) governments, on the other.

To be sure, that an economic system can throw light on a political system is not new (hence I say "somewhat novel").  You see that with rote rehearsals of Marxism all the time.  I had not seen it before applied to federalism per se.

Mr. Mankiw's full essay may be found here.

Redefining Key Terms

Yesterday, in my post "What is judicial activism?" I suggested as fundamentally in error the President's argument that, if the Supreme Court's finds the recent health care law to be unconstitutional, its decision would be an instance of judicial activism.  I suggested that it would be an instance, rather, of judicial review:  the power accorded to the judiciary to determine the constitutionality -- and therefore legal validity -- of a statute, treaty, or action of the legislative and/or executive branches of government.

In this vein, I just ran across the April 2 online editorial in The New York Sun, "Ex Parte Obama."  It offers a different viewpoint from the administration's (and possibly establishment's) on the matter.  For that reason it is worth reading as part of the ongoing conversation about the comments made by the former professor of constitutional law at the University of Chicago.  The question is whether the President is correct that judicial review (a government asset) is actually judicial activism (a government threat and rhetorical pejorative).

More basically, when do we redefine terms for our own political or personal purposes?  How should we argue and converse with others if we have a sincere concern for virtuous deportment?

For convenience, I reproduce the Sun's editorial in its entirety after the jump.

What is judicial activism?

According to today's news stories, the President cast a potential Supreme Court decision against the constitutionality of his signature health care law as an action that would be tantamount to "judicial activism."  Both The New York Times ("President Confident Health Law Will Stand," page A17) and The Wall Street Journal ("Obama Warns Supreme Court," page A1) report on the matter.

I do not know how the nine justices will rule on the pertinent matters before the court.  And I am as opposed as anyone in principle to "judicial activism."  But is it really proper to frame judicial activism as a court's deciding whether legislation passed by the Congress adheres to the limits on federal power relative to state power and individual liberty as set forth in the governing documents of a republic?  Is that what judicial activism is?  Isn't that just judicial review according to Marbury v. Madison (1803)?  Aren't courts supposed to do that?

Or is judicial activism merely the term that we use to disparage a court's (potentially) ruling on the constitutionality of a matter in a way that we don't like?

Inconsistency, Fallacy, & OWS

Last fall I was a bit confused by the entire Occupy Wall Street (OWS) phenomenon.  So I asked two friends with polar perspectives to help me understand what was going on, what was at stake, how they assessed matters, and how the debate was taking shape.  Having had now six months to reflect on things, here is some of what I gleaned.

Leviathan & Liberty

Whatever one's ultimate opinion about any number of contemporary topics -- from the Affordable Care Act to the limits of executive power, from government regulation of health care to the promotion of individual and religious liberty -- The Washington Post columnist Charles Krauthammer made some keen observations about ten days ago with which everyone should wrestle.