The Anti-Federalists’ early fear about Congress’s taxing power–that it would result in a tax on humans’ very existence–are now realized in the Supreme Court’s upholding of Obamacare.
A new version of an ancient tax of ill repute has been visited upon the people of the United States. That is the import of the recent Supreme Court decision upholding the right of Congress to require, in effect, that all people purchase health insurance or else pay a penalty. The penalty may pass constitutional muster, says Chief Justice John Roberts, only if it is considered a tax, levied for the purpose of alleviating the costs of medicine for all citizens, particularly the elderly.
Now since it is flagrantly unjust to levy a tax on various individuals singled out not for any wealth they have earned or for any luxuries they have bought, but just because they have refrained from doing what their betters wish them to do–the “freeloaders,” as they have been called–the best way to view the tax is to see it as applying to all persons without distinction, but with forgiveness granted to those who meet a special condition, the purchase of health insurance.
What additional conditions may be added in the future, we might inquire of those public-minded idealists in New York City, who have outlawed the purchase of large soft drinks. They have done so lest children who spend seven hours a day sitting at a desk, another hour or so riding a bus, and the rest of their waking hours staring at a screen, picking up meals haphazardly because no one cooks for them in the home, fall to the “epidemic” of obesity–as if when entering a room full of fat children one must clap an alcohol-soaked handkerchief to the nose and mouth.
Be that as it may, this particular tax brings to mind the debates between the Federalists and the Anti-Federalists on the adoption of the Constitution. To the victors belong the history books, but it might be good to revisit the arguments of the defeated opponents. One of the chief objects of concern was the indefinite power granted to Congress to raise taxes “for the general welfare,” a phrase that once could have been construed to mean “for the general welfare of all the states as states,” but which even at the time fell under suspicion of being applicable to every citizen of the nation without reference to the states at all.
The Anti-Federalists knew that any confederate Congress would require finances, and were happy to concede the power of taxation on foreign imports. But, wrote the 28-year-old Samuel Bryan, “to extend [this power] to excises, and every species of internal taxation, would necessarily require so many ordinances of Congress, affecting the body of the people, as would perpetually interfere with the State laws and personal concerns of the people,” resulting in the attenuation, the swallowing-up, of smaller and nearer forms of government.
The Anti-Federalists bound up in one the dreaded power to tax and the provision, necessarily expensive, of a standing army during peacetime. They did not seem to object to standing armies on the grounds of violence: these men had, after all, seen plenty of violence in the recent war with Britain and in the sporadic skirmishes against Indians and other Europeans on their western frontiers. They objected to the power to tax and the standing army provision, as Arthur Lee wrote, because they would be used “for the purposes of ambition and arbitrary power,” turning every state and county and township into a cantonment where would be lodged the armed executors of the will of Congress.
I don’t wish here to enter into the thorny matter of the Civil War, or into other military actions of the national government against internal rebels. Instead I wish to point out that another, less bloody but far more effective army is quartered everywhere–the vast network of bureaucrats and lawyers extending their metastatic filaments into almost every feature of a person’s life, and doing so at great expense, both for their own salaries and expenses and for the salaries and expenses of the defenders that must be hired to ensure compliance or the peace and quiet of relative invisibility.
No one could have foreseen how big and ugly the tumor would grow, but Samuel Bryan already intuited that “the policy of the new government will lead it to institute numerous and lucrative civil offices, to extend its influence and provide for the swarms of expectants.” Thus becoming too large to be paid for by import taxes, the government would have to raise money by other means: “There must be excises and other indirect duties imposed, and as land taxes will operate too equally to be agreeable to the wealthy aristocracy in the senate who will be possessed of the government, poll taxes will be substituted as provided for in the new plan; for the doctrine then will be, that slaves ought to pay for wearing their heads.”
That is what we have now, in effect: a poll tax. Consider the situation of a young man, age twenty-seven, who has just finished training in carpentry. He has not been much of a tax consumer; he hasn’t gone to college, and his mother and father actually married before they begot him, and stayed married, and never submitted to the public dole. He is a strapping fellow, in excellent health. He has a fiancée, and they plan to be married in a year or so, once his private business is off the ground.
He has saved a fair sum from previous employment, and has secured a loan, on somewhat unfavorable terms (since he is not a college student), for the purchase of excellent equipment. He has coughed up plenty for his licenses, and for work-related insurance. What he requires now is time, a little bit of luck, some good contracts, and word of mouth. He plans to work as many as fifteen hours a day, any and every day but Sunday. He spends nothing on himself but what he needs to eat, and to play a round of golf once a month during the spring and summer.
He has considered all the angles and determines that he will refrain from buying health insurance. He needs the cash now, and he hasn’t had anything worse than a cold in the last ten years. He’ll take his chances. Of course, as soon as he marries he will have to purchase some kind of a plan, because he and his wife will want to begin a family.
What is so wrong with his choice? To call this person a “freeloader” is to engage in pure slander. He is dutiful to the elderly–to his own, his parents. And he will soon enough be dumping his money into the vast health insurance pit. But he must be taxed right now to help support those who need the medical care that he himself does not need. He is taxed, again, not because he has bought anything or earned anything, but because he is really minding his own business. He is taxed for wearing a head on his shoulders–a “poll.” He is taxed merely for existing, as he will again be taxed for no longer existing,when he dies and attempts to bequeath his business and its assets to his son.
So we have come to this, a poll tax, an existence tax. But matters would not change, as far as my industrious carpenter is concerned, if the government were to “pay” for his insurance premiums by giving him a tax deduction contingent upon something else his betters wish him to do. He’d prefer liberty. He wouldn’t express it in the same primitive way as did Arthur Lee, but he would agree with the sentiment: “There was a time when our fellow citizens were told, in the words of Sir Edward Coke–for a man to be tenant at will of his liberty, I can never agree to it–Etiam si Dominus non sit molestus, tamen miserrimum est, posse, se velit–Though a despot may not act tyrannically, yet it is dreadful to think, that if he will, he may.”
Our government is now that Dominus that Lee and Bryan feared. It can now tax us for being, unless we hop or step as it pleases. We have long ceased to levy taxes to finance the legitimate aims of government. We levy taxes to enforce the aims of government, legitimate or not. Taxes are not the price we pay for the government to operate; they are its very gears and mainsprings of operation. They are the strings that make the puppet dance. I wonder indeed whether it might not be just as well to have a soldier quartered in my house. At least we might have a stiff drink now and then.
This article is reprinted with kind permission from Public Discourse: Ethics, Law, and the Common Good, an online publication of the Witherspoon Institute that seeks to enhance the public understanding of the moral foundations of free societies by making the scholarship of the fellows and affiliated scholars of the Institute available and accessible to a general audience.
