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News Link • Obama Administration

Obamacare and the Revenge of the 'Secret Constitution'

• Norman Grigg

"[T]he majority has at all times a right to govern the minority, and to bind the latter to obedience to the will of the former…. In a general sense the will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual."

~ Joseph Story, Commentaries on the Constitution, III, 327, 330

"The scientific concept of dictatorship means nothing else but this – Power without limit, resting directly upon force, restrained by no laws, absolutely unrestrained by rules."

~ Vladimir Lenin

A constitution merely prolongs the pretense that a political government can be limited by laws that it will interpret. Eventually, every constitutional government will embrace Lenin's ruling formula – "Power without limit, resting directly on force."

The function of the judiciary is liturgical: It transmutes the restrictive language of the constitution into a mandate for government action. This process is called "state-building" – and the purpose of the judiciary, insists Professor Jack M. Balkin of Yale Law School, is to "ratify significant revisions to the American social contract."

According to Balkin, "the most important function of the federal courts is to legitimate state building by the political branches." It does this by supplying the appropriate scholarly conjurations every time those in charge of the State seek to enrich their powers at the expense of individual liberty.

In this fashion, the relatively modest constitutional state of the early 19th century – which, Balkin notes with palpable disapproval, "didn’t do very much more than national defense and customs collection" – built itself into the omnivorous monstrosity he calls the "National Surveillance State." This is an entity that claims the authority to slaughter, torture, and imprison anybody on the planet for any reason. From Balkin’s perspective, the role of the courts is not to protect the rights of the individual, but to issue the occasional theodicy justifying the inscrutable ways of the divine State.

"Whenever the federal government expands its capabilities, it changes the nature of the social compact," writes Balkin in The Atlantic. "Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution" – a procedure that frequently involves subjecting language to treatment that even Dick Cheney would describe as torture.

In order for this to work, candor must be scrupulously avoided, and the pretense of constitutionalism must be preserved.


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