After spending a couple of days almost physically ill with a kind of rage against the Obamamcare decision, I decided on a whim to see what Jerry Pournelle might have had to say about the whole thing. I read this, and really started a deep rethink on the whole thing.
In a nutshell, Will and Krauthammer and whoever else wants to chalk this up as a hidden victory that will in the future place any kind of judicially imposed limits on the power of Congress are absolutely wrong. And those, such as Levin, Limbaugh and most conservative blog commenters are absolutely right that Roberts recognized and judicially opened the door to a greatly increased Congressional power via using taxation as the new escape clause. What almost nobody has recognized, however, is that Roberts is the sole justice actually upholding the Constitution in any of this.
Consider the following dialog as a follow-on/rebuttal of this prior one (the prior one was written when I was still spitting nails).
We The People: Chief Justice, help us, help us! Congress has passed a wicked law decreeing that "Three times a day citizens have to go to the nearest street corner, get on all fours, and bark like a dog! After this, they have to eat a Milk-Bone dog biscuit out of a special bowl. Then they're required to beg for another one! Milk-Bone dog biscuits build strong teeth and promote a shiny coat!"
Roberts: Okay. That's clearly unconstitutional but because there is a fine associated with it this falls under the general taxation power of Congress I will not strike down the law.
We The People: THIS IS AN OUTRAGE!!!! WHY ARE YOU FAILING TO UPHOLD THE CONSTITUTION, YOU TRAITOR?!?
Roberts: Look, you folks are going to have to decide: Do you really believe in what the Constitution says, or don't you?
We The People: We do!!
Roberts: Then let me ask you something: Where in the Constitution is the Judiciary given veto power over acts of the Legislature? Where in the Constitution is the Supreme Court given power as the final arbiter/guarantor of Constitutionality? Where in the Constitution does it say that all contentious political issues are to be ultimately decided by black-robed Philosopher Kings?
We The People: Marbury v. Madison?
Roberts: Marbury v. Madison is not in the Constitution. Look at Article III of the Constitution. This stuff simply isn't there. The idea that I should strike down and nullify laws passed by the Legislature is blatantly unconstitutional in and of itself. If you are willing to go against the Constitution via not acknowledging this, then how can you possibly complain when other unconstitutional things happen?
We The People: But not only did you not strike down the law, you also opened the door to even greater abuses of Congressional power via your cockamamie, cooked up, ridiculous doctrine that "if a tax is involved, Congress can do it"!
Roberts: I did not give Congress one iota more power than it already has. Legislative power is not the Judiciary's to bestow or withhold. After all: this country, its Constitution and its Judiciary and Executive were all called into being via legislative power. But I do agree with you on this: the idea that Congress can do whatever the hell it can make an excuse for is, in fact, horrifying, tyrannical and essentially unconstitutional.
We The People: Then why don't you DO something about it?!?
Roberts: If Congress over the last century has become a lawless, tyrannical crime syndicate--whose only difference from the Mafia is that the Mafia has a more honest self-image--well then: who permitted it? Who begged for it? Who re-elected these people year after year, decade after decade? Who shrugged and perhaps even cheered when unconstitutional power grab after unconstitutional power grab was inflicted over the decades (Social Security, Medicare, The Department of Education, etc, etc). Who enthusiastically fell for fiscally impossible con after fiscally impossible con? In short, who drank the Kool-Aid?
We The People: We did.
Roberts: So whose responsibility is it to clean house and bring the tyrants back in line with their Constitutional limits?
We The People: Us?
Roberts: You're beginning to get the picture. If what I have done has frightened you even more that government is an unstoppable, unaccountable monster, then good for you. It is about time that We The People sobered up and started exercising his sovereignty over this monster. Mark it well: There is no Daddy in a black robe who is going to rescue you from yourselves. I cannot promise you success, but I do tell you this: it is entirely up to you. And no one else. Godspeed.