Last week's Supreme Court decision on "ObamaCare" raises a number of serious issues regarding the system of checks and balances in the United States federal government, to say nothing of the role of government itself as that institution is understood in the U.S. Constitution. While some authorities have viewed the decision as a bolt out of the blue, it is really nothing of the sort. It is part and parcel of a philosophy of government and an understanding of the role of the State against which humanity has struggled from the very beginning.
Perhaps the most baffling phenomenon of modern life in the United States is the studied indifference, even hostility to tactics and weapons that would virtually guarantee a peaceful — or at least just — resolution to a great many controversies. The ObamaCare decision is not an isolated example. Take, for instance, the furor over the Supreme Court's decision in the Citizens United v. the Federal Election Commission case.
The issue boils down to whether an artificial person has the same rights as a natural person under the U.S. Constitution. If so, then an artificial person such as a corporation or a labor union can make unlimited political contributions. To limit such contributions is to limit the freedom of speech guaranteed in the 1st Amendment.
Or so the argument goes. The problem that opponents have with the Court's decision is that it allows virtually unlimited resources to flow to causes or politicians with which they disagree. The problem that they should have is that claiming an artificial person is the same as a natural person under the Constitution means that the State in the person of the Court has, to all intents and purposes, abolished the entire concept of inalienable rights that justified the establishment of the United States as a separate and independent nation.
The Preamble to the U.S. Constitution clearly states that the document itself is a means whereby the natural persons that make up the nation ("We, the People") delegate certain powers to the State "in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to [themselves] and [their] posterity."
The bottom line? Rights are inherent ("inalienable" or "absolute") in natural persons — "people." A corporation may be a person, but it is not a human being. Only human beings have natural rights, and only human beings are covered by the Constitution, unless the Constitution itself explicitly states otherwise, e.g., provisions regarding the individual states or the enumerated powers of the Congress.
Now consider the rather staggering implications of believing that the State in the person of the Supreme Court can decide what a person is, and can abolish the distinction between natural and artificial persons. Since a "person" is "that which has rights," the belief that the State can define what a person is (as opposed to what a person can do) is the same as saying that the State doesn't simply define the exercise of rights, but actually grants rights, deciding who or what has a right, and is therefore a person — a power previously believed held only by God.
This gives the Court the power to define the exercise of any right in a way favorable to itself at all times, even if the definition is contradictory, as it was in the ObamaCare decision. Many people are baffled by a decision that, at one and the same time, held that something can both be and not be a tax, depending on what the Court wants at the time.
According to the Supreme Court, then, the government can both "be" and "not be" — something that even God can't do. The sophistry often used to confound religious believers, that if God can do everything, then He can make a rock so heavy He can't lift it, changes from a piece of nonsense containing an internal contradiction, to a pragmatic philosophy of government. The only thing necessary to getting something so contradictory and anti-human accepted as the law of the land is to have the brute power to be able to force it on the country.
The fact is that all that is necessary to overturn the HHS mandate, Citizens United v. the FEC or even Roe v. Wade is for the Supreme Court to be brought to admit that the 14th Amendment applies only to natural persons, as the Constitution states in the Preamble, and that the Court doesn't have the power under the Constitution to decide who is a natural person. Artificial persons such as corporations, unions, foundations and associations do not have standing under the Constitution. They do not, therefore, have constitutional rights, only such rights as the law explicitly confers by statute; they are creatures of positive law.
According to William Crosskey, possibly the greatest constitutional scholar of the 20th century, the Court started on the trend that led to the Court's ruling on ObamaCare with Scott v. Sandford [sic — the name was John Sanford, but the misspelling is "official"] (the Dred Scott case) in 1857. The 14th Amendment was intended in part to overturn Scott v. Sandford.
Naturally, demonstrating the ineffectiveness of the Constitution in curbing the power of the Court, the Court waited for an opportunity, which came with the Slaughterhouse Cases in 1873. The decision effectively nullified the 14th Amendment, with both the assenting and dissenting judges taking the position that rights come from the State, not the people. The only question was whether the State in the person of the federal government, or the State in the person of the state governments had jurisdiction.
Only Associate Justice Steven Field (1816-1899) had the courage, 20 years later, to admit that he was wrong, that rights are inherent in natural persons, not the State, and that the State only affirms, defines, and protects natural rights, it does not grant them. The problem with using Crosskey's analysis, however, is obvious. Once the Supreme Court admits that it has no power to interpret the Constitution in any way that defines or redefines what it means to be a natural person, many of the Court's decisions over the last 150 must also be overturned, including the untouchable Roe v. Wade.
As for the HHS mandate and the attack on freedom of religion by allowing the Congress or the Court to redefine what constitutes legitimate religious practice, it strikes at the foundation of the American system. This is a far cry from the situation that formerly prevailed in the interpretation of the Constitution, described by Heinrich Rommen:
"Thus we see that freedom of worship and freedom of conscience can be defended by Catholic political philosophy as a practical political principle out of deference for the freedom of the act of faith, out of reverence for the individual conscience, on the historical fact of the division in faith, and lastly because of the exigencies of the common good. That is why Leo XIII praised the situation of the Church in the United States where Catholicism, it is true, is not privileged by the government but where the laws and the practice of the government do not at all disturb its freedom. That is why the Apostolic Delegate Satolli, inspired by the American way, asserted that the Magna Charta of humanity comprises the Gospels of our Lord and the Constitution of the United States." (Heinrich Rommen, The State in Catholic Thought. St. Louis, Missouri: B. Herder Book Co., 1947, 370.)