Scary week at the Supreme Court. I'll forgo any invective toward particular justices, but I am confused by this whole broccoli-eating scenario. Is this supposed to frighten me? Ooooh, I have to buy broccoli! Of course, buying broccoli would be commerce, but
eating it would not be, so I'm not sure how that ever became part of the scenario. And the government could tax me in order to buy broccoli themselves, as they do to control production levels for farm products of various sort, or to provide for, say, school lunch programs. Why is that so different or so much less tyrannical than telling people to buy broccoli individually, in which case you actually get to eat the broccoli rather than it getting plowed over to keep prices high?
As various commentators have pointed out, the real "limiting principle" on the government requiring you to buy broccoli is a little thing called "democracy." I'm still looking for a plausible case where elected representatives might muster 60 votes in the Senate for the Broccolipalooza (or is that Broccolipocalypse?). The conservative wing of the Court seems to be under the impression that Congress is some wild eyed sorority girl on Daytona spring break, drunk on tequila shooters, flashing the locals, and acting unbound by any law, reason, or prudential calculation. My God! Congress is sclerotic enough as it is. Let's just add in the principle that whenever it tries to address any serious national-level economic problem that we can nullify the whole effort based on the arbitrary whims of a narrow majority of justices conjuring decrees from thin air and contradicting 75 years of precedent.
This does not appear to be a case where the court is encouraging Congress to do a more diligent job of legal craftsmanship. If this goes down, there will be no health reform in this country EVER. EVAAAAH. And that will be on the backs of five very comfortable and privileged justices. Maybe America's uninsured should just send all their unpaid medical and funeral bills to the Supreme Court.
A final thought: regulating commerce at the national level and raising taxes were the primary purposes of the 1787 convention. Not ancillary or accidental. Essential. These were primary defects of the Articles, and they are prominent in every credible historical account on the founders and their intent. Yes, they were schooled in Lockean philosophy and valued property. But Locke, in emphasizing that government is founded to protect property, argues that it does so precisely by "regulating" it, converting a "natural right" into a socially protected one via parliamentary legislation. The contrast between how Locke handles property and how he handles religion is useful here. Religion is NOT the purpose of the state, so the rights of conscience are never turned over in the first place, meaning government has no authority to regulate belief. But property is the opposite, and it cannot be preserved without it being regulated, by elected officials, in the public interest. Which is why, for Locke, if you withdraw your consent by emigrating, you can take your religious beliefs with you, but not your property. The conservatives on the court absolutely invert Locke, making religion available for majoritarian constraint while upholding property and commerce as incapable of being regulated. Deeply strange, but then again, Locke was no "conservative" and neither was Madison.
[Disclaimer: no disrespect intended to anyone on the Court here, they're all smart, principled, noble, and virtuous defenders of apple pie and blah blah blah. I still tend to think that, when all is said and done, the law will trump the Limbaugh. But holy cow! Are we really going to shred American democracy over bizarre, pants-wetting hypotheticals about jackbooted broccoli police?! Really??? And if not, why did we have to sit through this week's circus?
