- - Thursday, July 12, 2012

The Supreme Court decision on Obamacare has far more dire implications for our nation and its cherished freedoms than merely affirming the government takeover of our health care.

In reaching its conclusion, the court obliterated a fundamental distinction between a penalty and a tax. Congress has the power to lay and collect taxes, and therefore, the court reasons that it can apply a tax for any purpose, even those otherwise outside the confines of the Constitution.

In this case, the court ruled that Congress could not pass a law requiring citizens to purchase a government-approved health plan under the Commerce Clause, but it can enforce exactly the same requirement through a tax. Government cannot fine you for disobeying an otherwise unconstitutional edict, but it can tax you for disobeying it.

Whether the government enforces a law with a tax or a fine, the effect is the same: it is coercing behavior under the threat of confiscating one’s property. But there are two profound differences that ought to alarm every American, whatever their views on Obamacare.

First, if the government enforces the law through a fine, the burden of proof is on the government to prove that the individual actually broke that law. As a tax, the burden of proof is on the individual to prove that he obeyed it. Anyone who has ever undergone an Internal Revenue Service audit knows exactly what this means. Whenever the new doctrine is applied, it upends the most cherished principle of our justice system: the presumption of innocence.

There is a second, even more chilling difference between a penalty and a tax: Under our Constitution, no penalty can be assessed without due process - every American has a right to a day in court before being punished. But a tax can only be challenged in court after it has been paid - that is, after the punishment has been imposed.

This is the madness of the Queen of Hearts in Lewis Carroll’s “Alice’s Adventures in Wonderland” brought to life: “Sentence first - verdict afterwards.”

There do not appear to be any bounds in the application of this new legal doctrine. It clearly provides the federal government the authority to exercise powers otherwise denied it by the Constitution as long as the instrument of coercion is confiscation by tax rather than confiscation by fine. Worse, this broad range of otherwise unconstitutional powers will be enforced in a manner that denies both the presumption of innocence and due process of law.

By the same reasoning, Congress could tax speech it finds offensive, tax people who choose not to go to church - or people who do, tax people who own guns - or people who don’t. As long as it is a tax, there appears to be no limits to federal power in the brave, new world that Chief Justice John G. Roberts Jr. hath wrought.

If the court has failed to defend our Constitution, what appeal is left?

There is still one. The Constitution does not belong to the federal government. Its ownership is made clear in its first three words: “We the People.” As Ronald Reagan said, “The Constitution is not the government’s document telling the people what we can and cannot do. The Constitution is the people’s document, telling our government those things we will allow it to do.”

Thus, the Supreme Court is not the highest court in the land. That position is reserved to the rightful owners of the Constitution, the sovereign American people, through the votes they cast every two years.

The despotic Alien and Sedition Acts were never struck down by the court - the American people did that in the election of 1800. The shameful Dred Scott case, in which the Supreme Court declared American slaves outside the protection of the Constitution, was ultimately reversed by the American people in the election of 1860.

Let us pray - before that, too, is taxed - that this infamous decision will be repudiated by what is actually and rightfully the highest court in the land - the American people.

Rep. Tom McClintock is a California Republican.