Obamacare in Perspective

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[EDIT FOR CLARIFICATION: A lot of people are being directed to this as a response to Wilson’s recent “Sermon to the Government and Legislature of Idaho.”  In fact, it was written and posted before that sermon.  However, many of the concerns voiced here certainly apply (along with additional ones) to what was said there.]

Let me begin with a few (big) caveats.  I’ve been out of the country for three years now.  That provides some helpful perspective, I hope, but it also means I’m pretty ignorant.  Way back three years ago, when the original healthcare battles were being fought, I paid a good deal of attention, but never read up in detail on the final bill, which seemed to me to be a very poor piece of legislation, a compromise that combined the worst elements of both sides.  Since then, I’ve turned a blind eye to the continued bickering, protesting, anathematizing, and so on that has continued to dog “Obamacare.”  I mostly ignored all the lead-up to the Supreme Court decision, and I’ve read very little on the details of that decision.  I’m basically glad John Roberts did what he did, if only because I felt like the whole brawl needed a referee to step in and say “Time out.  Let’s not do anything rash in the heat of the moment.”

So, if you want to lob rotten tomatoes at me, I understand.  But as a few folks really encouraged me to post these thoughts, I’ll go ahead and stick my neck out there anyway.  In any case, the important questions here are at the level of theo-political principles, not the particular details of Obamacare.

Among Christians, perhaps particularly Reformed Christians, one is likely to hear these days that this is the last straw.  Our government has crossed the line.  It is the Leviathan, the Beast now.  It has thrown out of the window “biblical principles of limited government,” making itself out to be infinite, to be God, to be Savior. Christians have a duty to resist it now, in some form or other (whatever that means…).  If we aren’t going to stand up for “biblical principles of limited government,” then who is?  Needless to say, I think this is a deeply misguided line of attack.  

 

For one thing, if it’s really so black and white, and so serious, then what do these statements say about the tens of millions of American Christians who support something like Obamacare?  Or the scores (maybe hundreds) of millions of Christians worldwide who support universal health care?  For another, if these biblical principles of limited government are so obvious, could we at least hear a frank admission from most of their advocates that they have only become obvious to Christians quite recently.  We could pick examples from the 4th century or the 19th, but let’s just stick with the Reformation, since I know that best, and that’s when all our greatest heroes lived, right?  Calvin’s Geneva—really limited government, right?  Ha!  It would be hard to think of a more meddlesome commonwealth!  Almost every aspect of the citizens’ lives—religious, economic, entertainment, apparel—were closely regulated.  “Oh, but that was by the church, so it was OK.” (People will really say that, you know.)  Well, not really, no—just check out my recent post on the politics of Geneva.  How about Martin Bucer, author of that great Biblical treatise on government, On the Kingdom of Christ.  If he published that book during the Cold War, he probably would’ve been imprisoned as a Soviet propagandist.  Bucer’s Christian magistrate has his hands in everything—agricultural legislation, suppressing trade of luxury goods, education, church-building, welfare, etc., etc.  

Now, we’re perfectly free to say, “Well yes, the Reformers were a bit totalitarian in their view of the Christian prince’s scope of responsibility, but we have since learned better, and we have the Bible verses to prove it.”  But if men so zealous for fidelity to Scripture in every area of life saw no contradiction between what we now would call “command economies” and the Bible, this should at least temper the zeal of those who think that the plain teaching of Scripture is at stake.

 

But let’s turn now to ask what this plain teaching of Scripture is.  The only possible guidance one can get out of the New Testament is Romans 13:4, which only helps you if (as a remarkable number of otherwise intelligent people have done) you take it as providing a complete description of the legitimate scope of governmental activity. Is universal healthcare a way of executing wrath on the evildoer?  Doesn’t look like it, so obviously it’s not legitimate—so the argument goes.  In the Old Testament, libertarians must face the inconvenient fact that Exodus through Deuteronomy seems to offer an incredibly meddlesome law code, complete with shocking infringements on private property like the gleaning and jubilee laws.  Of course, the ready response at this point is that these are “laws” only in the moral sense, which God’s people, as individuals, are responsible before him to obey, but they aren’t civil laws, so it’s OK.  Having done a good bit of work in this area, I have little hesitation in saying that this is anachronistic to the point of incoherence.  

Ah, but then we come to 1 Samuel 8, a favorite passage among the monarchomachs, which portrays various kinds of governmental overreach as a divine judgment upon the people.  Indeed, our modern-day Christian libertarians are eager to point out vs. 15 and 17, where Samuel tells the people the appalling prediction that this new king will tax 1/10th of their produce.  Well, there you have it, we are told.  Tax rates of 10% and over are unbiblical.  But one might just as well complain that we have police forces, complex legal institutions, separation of powers in our government, standing armies, and pay our taxes in cash, not grain—all contrary to ancient Israel.  The simple fact is that a more complex society demands a more complex (and more expensive) government structure.  In any case, it’s worth noting that Scripture itself appears to recognize this, praising expansions of administration under godly kings—Asa, Jehoshaphat, Hezekiah, Josiah. The godly kings are involved in all kinds of stuff—religious reform, economic reform, judicial reform, major building projects, military expansion, etc.—and they’re praised for it.  It’s not so much the scope of royal power per se that seems to the problem, but the use of it. The problem with the wicked kings is that they used the great scope of their power for wicked ends.

To be sure, in Scripture, we are given certain key principles of “limited government.”  Above all, the principle that God stands above and behind all governments, it is He who raises them up and casts them down, it is to Him that they are accountable.  Governments cannot therefore seek to usurp his place.  They cannot claim powers that are only his.  They can not claim dominion over the whole world, or over human hearts.  They cannot claim to define good and evil; rather, they are bound to the moral law he has established, and will be judged by Him if they violate it.  While certainly not explicit in Scripture (all the attempts of 17th-century republicans notwithstanding!) we can also certainly develop from Scripture they idea that it is good for government to find ways to incorporate the consent of the governed.  Indeed, we could continue along such lines, attempting to extrapolate reasonable principles from Scripture as to what governments ought to do and not to do.  But already, we have moved beyond clear biblical principles (the violation of which is rebellion against God) into the realm of prudential reasoning. 

 

If we’re looking for a list of enumerated powers, some very clear limits on the sorts of things government can legitimately take responsibility for, I’m afraid the US Constitution is where you’ll have to look, not the Bible.  Christians today who claim about the ungodly expansion of government tend to confuse these two—the generic Biblical limits on government (don’t usurp the place of God)—with the concrete American constitutional limits on government.  We seem to think that if a government transgresses these latter, it has claimed freedom from all bounds, has claimed equality with God.  In particular, we are told that the judicial decision last week constituted a claim that the US government has a prerogative “without limit.”  Really?  Did John Roberts yesterday just certify that the US government has sovereignty over any territory on earth it desires to occupy?  Did John Roberts just certify that the US government can tell you what you’re allowed to read? which church to attend?  which God to believe in?  Hardly.  Of course, there is no doubt that the US government, by its sheer scale and pervasive wickedness, has bestial proclivities, a tendency to make itself into an idol which must be served, to make its own glorification the end of its existence.

But where will we draw the limit, if we abandon the enumerated powers of a strictly construed Constitution?  If we don’t draw the line in the sand here, then where will it stop?  There are no criteria, we are told.  But this is to assume that the only criteria we have to work with are neat, concretely defined little checkboxes: national defense? Check.  Police service? Check. Regulate interstate commerce? Check. Issue drivers licenses? Check. Define the meaning of marriage? Check. Ban abortion? Check. 

The fact is, a great many nations of the world get by just fine without the kind of written limit that we are asking for.  The idea of a Constitution with enumerated powers is by no means a ubiquitous one.  Britain has no such thing.  Britain relies on a slowly developing common law tradition, in which precedent, popular consent and the principles of natural equity serve as limits upon the legitimate scope of government action.  Of course, I suppose most of the Christian Right, would have few qualms about dismissing much of the rest of the world, including Britain, as totalitarian.  But this is just a combination of naïveté and hubris, or else depends upon the possession of a reliable concrete standard for defining what counts as totalitarian.  And in any case, ultimately, the US too must fall back on these kinds of limits. If nothing else, this controversy is proof that a constitution with enumerated powers is insufficient.  There is too much room for disagreement about how much these powers may be stretched, and even how much of a straitjacket a 220-year-old Constitution should be.  Ultimately, while the Constitution provides certain limits on the scope of our government’s powers, legal precedent, popular consent, and the sense of natural equity play a bigger role.

 

But, aside from the Constitution, do we have no standard for determining the just limits of government?  What do Scripture and natural law have to tell us?  A good two kingdoms theology  will warn us against the danger of seeking for detailed guidance on matters pertaining to the civil kingdom in Scripture.  Even where Scripture does give detailed guidance, it is the nature of such matters is to be variable according to time and circumstance, so there is no a priori guarantee that the guidance still applies (e.g., the 1 Sam. 8 taxation question above).  What does necessarily still apply (the “equity” of the law) does so because it belongs to the natural law, with which Scripture is “fraught,” according to Hooker.  The general principles of Scripture and the natural law will coincide in helping us see that certain things governments might try to do are intrinsically beyond their God-given limits.  So, although it is somewhat question-begging, we can of course start by saying that government oversteps its limits if it ever commands us to act contrary to the moral law, such as ordering its citizens into a blatantly unjust war, or requiring doctors to prescribe abortifacients, or requiring ministers to marry gay couples.  Of course, such situations may require a good deal of discernment, and most cases are not so obvious.  Natural law will also require that government abide by principles of justice, commutative and distributive.  These too require discernment, and it is not always clear what belongs to the fundamental moral law and what are mere changeable positive laws of Scripture; thankfully, the Christian tradition of moral theology has already done a lot of the heavy lifting for us on this point.   Most importantly, we can lay down, on the basis of a good two kingdoms theology, that government must never seek to intrude itself upon the realm of belief or to idolatrously claim religious devotion (though again, it requires a great deal of work to cash out what constitutes such violations and what does not).

In any case, though, natural law does not function well as a detailed set of prescriptions, or even a set of deductive principles from which we may arrive, a priori, at a detailed set of prescriptions.  That is not the sort of thing it is, since it reveals itself in prudential reasoning in ever-changing circumstances which pose ever-new demands.  Rather, it functions best as a means of testing, a posteriori, certain proposed actions, and seeking to discern whether they violate fundamental norms—in other words, much more in the manner of a common law tradition than an attempt to establish enumerated powers.  So we do have means of determining the just limits to government, but they are no silver bullet or infallible answer key; they require a great deal of attention to particular needs and constraints.

 

So, finally, to come back to Obamacare, what might such limits have to say to this particular question?  Has some fundamental line been crossed, now that the government can “coerce us to buy something”?  Well, hardly.  Although I haven’t read the opinion, I think Roberts was quite right in his basic view of the situation.  To describe the individual mandate as a market transaction that you were required to engage in was the Obama administration’s attempt to compromise with the market model they were confronted with.  In most health care systems, it is quite clear that the government is ensuring the provision of a service, and requiring you to pay for it in some way or another—in other words, taxing you for it.  

Now, you can try to be a consistent anarchist and insist that all taxation is theft, but if not, you’re going to have to grant that we already accept any number of “coerced purchases” through taxation.  We pay, through our taxes, for defence from enemies and from criminals, for the provision of justice at the courts, for the maintenance of a stable currency, for government safety inspections in various industries, for a transportation network, for weather measurement and forecasting, for public parks for disaster management and response, etc. (just to pick a few items that even arch-conservatives are unlikely to object to, though you never know these days).  Of course, I have argued before, and will continue to argue, that it’s really misguided to think of such taxation in terms of coercion—or rather, it is only coercive if you first choose to think of it as such.  But in any case, is there something special about healthcare that makes it categorically inappropriate for us to be taxed for the provision of, whereas it is perfectly fine to tax us for the provision of firefighters?  In both cases, the reasoning is, “Some unforeseen peril or harm may suddenly come upon a citizen, which he does not have the means to rescue himself from on his own. As part of ensuring that we, as a society, take care of one another in our need, we tax citizens to provide the means to protect and care for them in their need.”  Indeed, it seems rather easier to justify taxation for healthcare than taxation for transportation, for instance.  Now, none of this is to say that universal public healthcare is necessarily a good idea, and certainly not that the particular ugly hybrid enacted in the US is a good idea.  It may be poorly-conceived in any number of ways.  But this is quite different from saying it is a grave injustice, a mark of rebellion against God, etc. 

When we want to ask whether government has become tyranny, the chief question to be asked is whether it is seeking to serve the common good of its people, or whether it has turned aside to serve the private good of the governors.  The tyrant has classically been identified as the one who turns on his own people, plundering them for his own private gain (to be sure, there are ideological tyrants, like Hitler, who oppress for the sake of some perverse higher end—but is that really what we’re dealing with?).  This is the problem with Tea Party-type cries of “tyranny.”  Where are the millions and billions that Obama is stealing from the American people to fill his own bank account?  Actually, he, and almost all other government officials, make considerably less than most private sector executives.  “Oh, well it’s not money, of course,” we’re told, “it’s the quest for power for power’s sake.”  Well maybe, in the case of some people.  But in general, most people who advocate universal healthcare do so on the basis of genuinely trying to serve the common good.  They may certainly be going about it in the wrong way, but that doesn’t make them tyrants.  

 

To show the ways in which Obamacare is flawed, we cannot point to some cut-and-dried Bible verse, or some blindingly obvious principle of justice.  We will have to resort to detailed arguments and analyses, to the much more difficult but more rewarding task of persuasion, to show the ways in which justice and the common good are undermined, rather than advanced.  And we will have to live with the fact that some Christians of good will may continue to disagree with us.  And wherever there is legitimate room for disagreement about what the common good requires, then we are not talking about an issue of conscience on which we are bound “to obey God rather than men.”  Many are loudly declaring that Christians need to stand up and resist this evil; otherwise, we are obeying men rather than God. The implication, of course, is that the tens of millions of Christians who disagree with them on this (within the US alone) are in rebellion against God.  Really?  Are we willing to go that far?    No, it seems quite clear to me that what we are differing about is a question of the best pursuit of natural goods within the civil kingdom, a matter in which Scripture and the natural law will inform us but may not lead us to any one certain conclusion.  That being the case, we are certainly free to continue to argue our case, but we are not free, it seems to me, to disobey our rulers.  “Our judgments we are bound in this case to suspend,” as Hooker would tell us on such a matter—obeying the law even as we critique it.  

15 thoughts on “Obamacare in Perspective”

  2. Andrew

    Brad,On this: "Having done a good bit of work in this area, I have little hesitation in saying that this is anachronistic to the point of incoherence.Any recommendations on what to read that would respond (even indirectly) to the Recon reasoning about these texts?

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  3. Jess R. Monnette

    Brad – You say "I'm basically glad John Roberts did what he did, if only because I felt like the whole brawl needed a referee to step in and say "Time out. Let's not do anything rash in the heat of the moment."" Do you think that this is what Justice Roberts (and consequently the majority vote of the Supreme Court) did when he voted on this law? Your characterization that his vote was merely a “time out” so that neither side would act rashly in the “heat of the moment” is untrue. Justice Roberts expanded the power of the Federal government so that it may now tax inaction. When Justice Roberts cast his vote, he said, that although the Federal government cannot force a person to purchase insurance under the enumerated power to regulate interstate commerce, the Federal government may force a person to purchase insurance by using its power to tax them if they don’t. Justice Roberts came to this decision despite the fact that never in American history has any government been able to tax a person for his inaction. Income taxes are levied on the earning of income, consumption taxes are levied on a person’s consumption of goods, property taxes are levied on those that own property. But this tax is levied on any man that does not make specific purchases in the health care market that the Federal government requires. This applies to any man that chooses to provide for his and his family’s healthcare differently than the Federal government requires. It taxes him for not acting the way the Government dictates. And now, the Supreme Court has ruled that the Federal government, under the Constitution, can tax inaction. Justice Roberts was not affirming that the Federal government can use dollars collected in taxes to pay for health care (as they do with transportation), because this is already the case (e.g. Medicaid). Indeed, the Federal government may not (under the commerce power) force you to purchase broccoli, but it can tax you if you don’t. So, although one can debate whether or not this constitutes the last straw toward tyranny, and one can debate whether or not a single payer system is appropriate or not, it is untrue to say that Justice Robert’s decision was only calling a time-out so that the American people and their representatives avoid rash decisions. The Court has expanded the powers of the Federal government under the Constitution so that it may now tax inaction. This is a significant change. Cheers, Jess R. Monnette

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  4. Kent Will

    Brad,This was a thougthful article, but I do think you're missing a few salient points in this controversy. It's true that the more heated types have cast this bill as a sort of malum in se, contrary to all natural law. But whether it's that or not, the debate is really centering on whether it is contrary to the highest positive law in our land, the Constitution. When a government declares that it has the right to act contrary to its most solemn and binding charter, isn't this tyranny in principle? So assuming the conservatives are correct and the law is unconstitutional, their outrage follows quite properly.

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  5. R. Anderson

    Hey Brad,I think you make some good observations here. I do think that Christians need to be careful about equating an imperfect document crafted by our flawed and uninspired founding fathers with the infallible Spirit-breathed words of our true Father. I also appreciate your taking the time to point out that this issue is not a black and white one from an ethical/moral perspective. The questions that are raised for the American church by this piece of legislation are nuanced and should not be lumped together into one simplistic conclusion about the "Biblical" nature of limited government. I do think that you set up a sort of straw man in your ninth paragraph, when you state: "we are told that the judicial decision last week constituted a claim that the US government has a prerogative 'without limit.' Really? Did John Roberts yesterday just certify that the US government has sovereignty over any territory on earth it desires to occupy? Did John Roberts just certify that the US government can tell you what you're allowed to read? which church to attend? which God to believe in? Hardly."I don't think this is really the argument at all (at least not that I've heard ANYONE make). This statement is far too broad and seems to paint those who would criticize the SCOTUS ruling as making wild and unrelated claims about the far-reaching impact this ruling will have (perhaps this was intended for hyperbolic effect, but it still seems inaccurate and unfair). Nearly all of the critique that I have read or listened to regarding this decision has to do with what Jess described in his post above: namely, the legal precedent that this ruling sets for the government's ability to impose taxes on citizens that choose not to purchase a particular government approved product. It's also my understanding that this decision ignored years of legal precedent which helped to define detailed differences between a 'tax' and a 'fine' (I'll defer to Jess and others much more versed in legal matters/history than myself for the specifics on this. Please correct me if I'm way off here). By redefining terms, the supreme court has seemingly granted our government the authority to tax American citizens/consumers for not doing or buying something that it requires them to. Whether or not it's Biblical for a government to have that kind of power, I think the more crucial question (as Kent has pointed out) is whether our laws/Constitution permit this kind of power. I think citizens are justly outraged if laws and legal precedents are so easily ignored or twisted by governing authorities, despite whether the intentions of the governing officials are malicious or not. Furthermore, when you say that "In most health care systems, it is quite clear that the government is ensuring the provision of a service, and requiring you to pay for it in some way or another—in other words, taxing you for it," you seem to be arguing that because this is the case in other–even MOST– health care systems, that this somehow validates the SCOTUS interpretation of OUR Constitution. How does this follow? Most health care systems are not OUR health care system, and therefore whether or not other governments choose to tax their citizens to ensure the provision of health care, our government does not. Aside from our Medicare/Medicaid programs, our government is not in the business of ensuring the provision of health care. This whole debate is about whether or not they SHOULD be in the business of ensuring this service, and pointing to 'most health care systems' aside from ours does nothing to prove that our government has that power according to the laws of our land. Maybe I misunderstood what you were trying to say here, but this statement just struck me as odd. As to determining the Biblical nature of this law, I think you made an extremely important point in your post that can help (at least partially) to answer this question: "Above all, the principle that God stands above and behind all governments, it is He who raises them up and casts them down, it is to Him that they are accountable. Governments cannot therefore seek to usurp his place. They cannot claim powers that are only his. They can not claim dominion over the whole world, or over human hearts. They cannot claim to define good and evil; rather, they are bound to the moral law he has established, and will be judged by Him if they violate it."It seems to me that a nation/government that does not recognize God as the sovereign Ruler of this world and as the One to Whom all glory is due will naturally twist morality into a self-serving idol. They will pass laws in the name of liberty that violate God's intended purposes for marriage. They will permit the slaughter of the most vulnerable in our society for the sake of individual choice, and demand (through fines and taxes embedded in 2700 pages of legislation) that you support the cause of individual choice too. They will declare that they are making decisions for the good of society as they create panels of bureaucrats given the power to determine the monetary worth of an individual's life. They will spend millions of dollars of taxpayer money to bribe representatives for their votes, and shout from the rooftops that they are doing the people's will. Like Nebuchadnezzar, they will demand that God-fearing employers bend their knee to the idol of Choice, forcing them to include birth control pills in prescription plans (well, not exactly like Nebuchadnezzar, but you get my point…)I am not someone who would say that a Godly government is necessarily a limited government. I tend to believe that a nation who's God is the Lord will attempt to take care of their sick, crippled, elderly, and weak citizens. I am not completely opposed to programs that tax American citizens in order to accomplish this. However, we are not a Godly nation, nor do we have Godly leaders. Therefore the twisted version of morality that our leaders (in BOTH parties) have erected does not lend to good OR just law, and this includes Obamacare. Just my two cents…thanks for the discussion.

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  6. Brad Littlejohn

    Thank you, gentlemen, for a lot of very interesting interaction. Andrew, I'm going to reply to your comment separately (edit: actually, that will have to wait till a bit later, since this reply has taken so long) and try to address all the objections here.First, Jess's objection: This objection seems to me to proceed from a very high view of the power of judicial review; which is curious, it seems to me, because conservatives routinely attack what they see as a hyperactive judiciary branch. You characterize Roberts' decision as an action that dramatically expanded the power of the government. But I think the very action/inaction distinction that you have invoked is helpful here. I would say that it was Congress that, in passing Obamacare, expanded the government's power. The judicial branch has no such power, properly speaking. All it can do is pass judgment on what the other two branches have already done, and its default stance should be one of acceptance; that is, most of the time, it ought to allow the decisions of the legislature to stand. Occasionally, it will feel the need to intervene and take action to reverse decisions that have been made. In this case, Roberts decided that this was not warranted, and that inaction with respect to the decision already made was the appropriate posture. (Obviously this is an oversimplification, since the interpretation he provided does have ramifications going forward, but it is, I would contend, an accurate basic description). The court's responsibility is retrospective, not prospective. It looks at a contentious matter, and either says, "Yes, this was wrong, this needs to be changed" or, "No, enough arguing. We will allow this to stand in its basic form." That is why I would stand by my characterization of Roberts as essentially calling a time-out. The reason I'm basically glad he did is because it seems that striking it down and sending this whole healthcare business back to the drawing board would have meant another political circus for the foreseeable future, which would cripple even further our country's ability to have rational debate and work together to face the really urgent problems (e.g., budget deficit) that are confronting us. Leaving the law intact does not mean that further change is impossible. Debate can go on, and Congress can revisit and reform the legislation, as I have little doubt they will do during the next few years. But *hopefully* the decision will help lend the ongoing debate in a bit more order and civility than otherwise might be the case.As far as the specific legal issues involved—I appreciate the analysis, and I certainly understand your concern. Do remember that my purpose in this post was not to really to engage with the legal issues (on which I happily admit to be very underinformed), but rather to establish the larger theological framework within which that discussion must take place. I believe my friend Steven Wedgeworth will be offering a much more thorough engagement with the nitty-gritty questions in the coming days on The Calvinist International. My very brief response would be to say that I simply think your characterization is inaccurate. It is not like taxing someone for refusing to buy broccoli. The reasoning is quite simple. If you don't buy health insurance, the government is not going to let you die untreated. They want to make sure you get treatment. And for that, someone will have to foot the bill; ultimately, the government. Therefore, the government will tax you for providing this service. It should not be forgotten, of course, that the individual mandate was originally, and for a long time, a conservative and Republican idea.Now, on to the bigger objections of Ryan and Kent:Both think that this entire essay is a bit of a straw man, since as I say, I largely sidestep the questions of constitutionality and ask instead questions of morality—instead of saying, "Is Obamacare illegal?" I ask "Is Obamacare immoral?" I have quite self-consciously done so, because the second question has to be addressed first, and I do not think this is a straw man. Perhaps my very distance from the debate has skewed my perception, as only the loudest and most frenzied complaints have reached my attention, but it does seem to me that there are a large number of people on the Christian Right who have charged Obamacare with being fundamentally immoral, unjust, unbiblical, intrinsically tyrannical, etc. And there are a large number of people who seem to have difficulty separating out the two issues we have here identified—legality and morality. For many American Christians, Constitutional limits on our government's power simply *are* Biblical limits (because, of course, we all know that our founders were all earnest Christians seeking above all to establish a government on Biblical principles). In any case, the paragraph that Ryan singled out as an instance of straw-man argument was in fact the one place where I directly quoted (though I tried to be discreet about it, only quoting two words) from the argument I was most directly responding to, which is from Doug Wilson, who was blogging about this last week. I don't like to cause needless offense by critiquing Wilson directly if I can help it, but if you read his posts, I think you will see clearly enough that I am responding to an actual argument that has been made—the ratification of Obamacare represents rebellion against God, trampling on the Bible, and embrace of government without limit—not a straw man.Now, the question still remains, as both Ryan and Kent have insisted, "Well, whatever Scripture and natural law have to say, it's still a pretty bad thing to trample on the Constitution, isn't it?" Of course, I think it should be first pointed out that that is still an unsustainably harsh charge to make. The highest court in the land, filled with the greatest legal minds of the day, who, despite all their faults, generally still act with remarkable fidelity to principle and resistance to political pressure, divided 5-4 on this question, and ultimately said it was not unconstitutional. Now, that doesn't mean all debate must be at an end; surely we may continue to argue on the side of the four who felt that it was unconstitutional. But I think it ought to be enough to prevent us from saying that it is blatantly unconstitutional, enough to prevent us from launching into tirades against tyranny. Constitutional interpretation is exceedingly difficult, and we need to recognize that there will be honest disagreement. Which leads on nicely into my main answer.I did, I think, try to address this question in the post, in the paragraph beginning, "The fact is, a great many nations…" Now, my point here is that many nations have decided that it is not helpful to appoint, as the "highest positive law in the land" a document like the Constitution, attempting to lay down in advance all the principles that will be needed to determine the legitimacy of all future laws, amendable only by immense political consensus. Why? Not because they desire unlimited powers, but because they think it is ultimately a silly pretense. For two reasons: (1) A constitution cannot successfully anticipate the questions, problems, and needs of future generations, and so important issues will be left out. (Yes, there is an amendment process, but it really only works well for concrete, often quite trivial, procedural issues (e.g., the last seven amendments to the US constitution), not to deep-seated changes in cultural consciousness, or the configuration of society.) Future generations will feel the need for government to respond to the needs of the present, and so they will gradually find themselves moving further away from the Constitution, even while continuing to do lip service to it. (2) A constitution needs to be interpreted, and this interpretation will always reflect the biases and needs of each successive generation; they will ultimately bring their own interpretative biases to bear, and their own sense of what the needs of the present demand. There is a difference between legitimate and illegitimate interpretation, to be sure, but it is not easy to tell the difference; and, given (1), it is not immediately apparent that the principle of original intent should be the trump card in interpretation. Maybe it should; maybe it shouldn't. But your decision on that question can't be determined by the constitution itself, but by your political philosophy more generally. The fact is that having a written constitution does not free you from having to make legal decisions which will be based on factors and considerations largely extrinsic to the constitution. So why not just give up the pretense and have a common law tradition? So the argument would go.Indeed, there is an important further objection, which argues that constitutions are not merely unhelpful, but downright harmful. By deluding ourselves into thinking that we can make legal decisions simply by recourse to this highest positive law, and no longer need to make use of natural law, of transcendent principles of justice, we come to confuse the constitution with God, positive law with natural law. Far from being a limit on human political power, then, constitutions become part of our claim to transcend human limits, erecting our own positive law as the a priori standard of justice. This is why it was a staunch conservative, Joseph de Maistre, who argued so strongly against written constitutions of the American sort, in his brilliant Essay on the Generative Principle of Political Constitutions (you can find a nice little collection of quotes from it here). If you read the essay, you will see that he has influenced my own analysis of the problem considerably. Of course, de Maistre isn't necessarily right. He was Catholic, after all, and tied in with his polemic against constitutions and in favor of a living common law was a polemic against Protestantism, with its rejection of the ongoing interpretation of tradition in favor of a pristine divine written constitution in Scripture. Ultimately, I'm a Protestant, so I think there is something to be said for an authoritative original document. But we must be careful of making exaggerated claims for it and forgetting what a large role interpretation must play, and how much ongoing disagreement there will be.So, ultimately I'm unpersuaded by the urgency of the "it may not be intrinsically immoral, but it's certainly unconstitutional" argument. Viewing the constitution as a pristine, a priori rule of justice that is either preserved or violated is misguided, I think. Inevitably, to be used, the Constitution will have to be subjected to the give and take of interpretation and application, and it's not usually that easy to say with certainty when this process has been done legitimately or illegitimately. Indeed, even a clear and blatant violation of the constitution, if perpetrated by all three branches of government acting in concert, is essentially just a body politic choosing to unbind itself from constraints to which it has previously bound itself, and does not seem to me to be tyranny in se (though I'm open to being convinced otherwise). It may be wrong in se as a species of oath breaking, and it is likely often to be done as part of an intrinsically unjust action, in which case it is tyrannical. The chief argument against it, though, is generally the slippery-slope one: if you toss out the Constitution, then even if the particular case was not a fundamentally immoral one, governing without such constraints is sure to lead to great injustice. I think that's a very fair argument to make. But I think the more serious slippery-slope is the one that results from not ruling in subjection to God and his law (given through Scripture and natural law), and I think that excessive idolatry of the Constitution can actually compound that more fundamental problem.

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  7. N. Shade

    In an attempt to add to the theological discussion side of the discussion I would like to point out that health care is the new food. Because we are in an affluent western society we rarely have people in actual danger of starvation but the new battleground that might endanger the lives of the 'poor' is health services. There are too sides of the coin in to food in the Bible. One, we are called to give to the poor, and if we oppress them then we will answer to God. Second, their is the sentiment expressed most poignantly in 2 Thessalonions 3:10-12 that if a man doesn't work he shall not eat (and that he shall eat his own bread). At times, we are called to refuse food to the hungry.We have already bought as a society that food is always a 'right' that can be demanded but the Bible says it should be refused at times. Health care is the new 'right' and any blanket application would be contrary to this verse (and other sentiments like it) in scripture. We are not talking about deciding in wisdom who is destitute and in need of health care) and those who have decided they want to live off others (something that practically bureaucracy is incapable of doing and should be done by elders, deacons, and those close.) The Federal government has instead declared that they know better than God what men should or should not be given. I don't think this is the first time the Federal government has made this declaration and I don't think it will be the last.If we as Christians are told to refuse food (arguably more basic to life than a cat scan) at times, should we not also in wisdom refuse dental care (or at least reserve the right to in wisdom)?

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  8. Byron Smith

    Nice post Brad. I appreciate your analysis, and share your hesitations about a written constitution (though I am also from a nation with a written constitution, albeit one which also a foot firmly in the tradition of English common law).I'm not up on any subsequent developments, but I note that (according to Wikipedia), "the Supreme Court ruled in the 1905 case Jacobson v. Massachusetts that the state could require individuals to be vaccinated for the common good." Wouldn't this be another instance of inaction being sanctioned?

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  10. Brad Littlejohn

    "Hmmm."—What does that mean, Robin? That you want to disagree with Wilson but don't want to agree with me? ;-)Andrew, let me go ahead and answer your question, as promised. I'm not sure about resources that respond directly to the Recon argument here, given that Reconstructionism is a pretty narrow phenomenon, and most of those in the Reformed world who were opposing it happened to share its fairly libertarian starting-point, and so didn't oppose it on these grounds. While working on my Master's here at Edinburgh, I set out accordingly to come up with some kind of response to it, although I figured I would have to find some more mainstream conversation partners if I was to submit a paper on the issue. As it turned out, I found out that among Old Testament scholars, the same sort of law vs. ethics dichotomy is very common. When I discussed it with O'Donovan, he declared with exasperation that this was because modern OT scholars knew nothing about jurisprudence and simply adopted an essentially liberal starting-point in their assumptions about the nature of law. Addressing the argument, then, turns out to be less an issue of Old Testament hermeneutics than of political-theological assumptions. All that is a way of trying to make it sound less arrogant when I say that no, I had trouble finding arguments on this topic, so I had to just construct one myself. You can find the resulting essay, "The Heart of Torah," on the Writings page of this blog, although I wasn't able to incorporate into that essay all the material I wanted to. You can also find some relevant blog posts on my old blog here, here, and here. I warn you, though, that I was a complete novice in my grasp of law and ethics at this period, and had not yet encountered Hooker. If I revisited the issues now, I hope I could offer a considerably more nuanced and lucid handling of the subject; or perhaps you will be able to do so for me.Nehemiah—interesting line of argument. I don't think it works though. For one thing, the command, "If a man will not work, let him not eat" is not given as a categorical imperative for all times and places, but a specific injunction for the Christian community at Thessalonica, which apparently lived a kind of common life with shared resources, from which the members were fed. Naturally, in that setting, freeloaders could not be tolerated, and the community had no way of forcing people to work—or in lieu of working, pay. A political community, with the power to *oblige* individuals to contribute, could choose to prevent freeloaders in that way, as opposed to simply cutting them off from the community. In any case, I don't think that the parallel between eating and healthcare is quite as simple as you imply. After all, denying a man food will not kill him—not if he has the power to work and provide himself with food (and clearly, Paul is talking about those with such power; the Thessalonians would not deny food to an invalid). Rather, it will motivate him to get off his ass and procure the means to food rather than starve. The command is thus not a heartless, "If a man will not work, well then let him die" but "If a man will not contribute to the community, then teach him to take care of himself." In healthcare, this will not necessarily work. We might be very irritated at the foolishness and laziness of the man who failed to provide himself with insurance, but will we go so far as to refuse him treatment for his heart attack or his cancer? "Sorry, you didn't bother to provide yourself with healthcare, so we'll just have to let you die. Too bad." We might want him to learn the lesson that he needs to stop being a freeloader, but by the time he's rushed to the hospital, he doesn't have the opportunity to mend his ways before the consequences may be fatal, so we'd best treat first and admonish afterwards. Or else, perhaps, oblige him to pay at the front end so that he can't be a freeloader in the first place.

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  11. Jess R. monnette

    Brad, In this case the job of the Supreme Court is to determine whether the law passed by the legislative branch, and enforced by the executive branch, is unconstitutional. The question before the court is, “is this law constitutional?” Now that I have read Roberts’ opinion (but not the concurrences or dissents yet), one of the first things that jumps out at me is that he fundamentally changed the law, and then ruled that the changed law was constitutional. In the individual mandate, Congress (acting in their representative capacity for the people) passed a penalty for failing to obtain health insurance. Congress figured that it could enforce this penalty under its commerce clause powers. All the public debate said “Congress can do anything under the Commerce power” and this penalty would be included. In his decision, Justice Roberts re-wrote the law and changed the penalty (which Congress passed) to be a “tax” (which Congress didn’t pass). I would submit that this is not an insignificant change. Given the narrow margin in the house (220-215 I think) by which this law was passed, it is highly likely that the individual mandate would never has passed Congress if Congress had identified it as a “tax” at that time. The people would not have stood for that. So, it is apparent that Justice Roberts amended legislation and then ruled that the legislation, as amended, was constitutional. This is simply improper and a gross overreach. The “political circus” that would have resulted if the Supreme Court ruled on the law as passed (overturn individual mandate on commerce clause grounds) is exactly what is needed. Congress would then have to convince the people that a new “tax” is necessary for enforce the legislation’s key individual mandate and the American people speaking through their duly representatives can decide on that issue. To use the “time out” language, it is as if the referee (Roberts) blew his whistle after the fourth down when the ball was still on the one yard line, the referee then nudged the ball with his foot into the end zone, and then declared the game over and the other team victorious. The Supreme Court’s job is not to “regulate” civil debate in other branches of government, it is to decide whether or not laws are constitutional or not. The Court failed in its duty in this instance.

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  12. Kent Will

    Brad,After you named Wison, I went back and read his sermon from last week. To be honest I didn't see any grandiose claims about the absolute immorality of government-run health care in se. In fact, he addressed concerns like yours in this paragraph:"I have said that Congress is not Jesus, and have grounded this call to resistance on that footing. But some will say that I am being delusional—“Whoever claimed that Congress was Jesus? John Roberts never said, 'Congress is Jesus.' What are you going on about?" No, he did not use those words, but this Court decision excluded, by definition, any limiting principle to the power of congressional taxation. That is messianic and delusional."So even though Wilson is claiming moral and theological ramifications to this matter, he's not doing so on the basis of some absolute or infallible quality in the Constitution. In fact, recollecting some of his talks on American history, I'm pretty sure he would agree that the states and other local governing bodies would have every political right (whether wise or not) to establish their own health care systems. The problem here is that Obamacare, while not necessarily abstractly immoral, attempted to set aside in principle the limits that formerly existed on the power of taxation. Wilson's problem isn't that a particular proposal just crossed some metaphysical line in the sky, but rather that every restraint on Congressional taxing power has now in principle been set aside. In the past, personages with similar agendas have been forced to sign Magna Cartas.As Wilson is fond of saying, where you are in the story matters. It makes a difference whether Solomon or Sennacherib is promising vines and fig trees. A theologian in his study can produce a compelling argument that such promises fall within the bounds of a theoretical civil authority. But a good minor prophet (or pastor) wants to know who is making the promises, in whose name, and in what spiritual circumstances. I agree with your observations on written constitutions. All good positive law should arise from custom, and customs change over time. But here is the rub: a healthy common law tradition depends on evolution, not revolution. As Jess has done a good job arguing here, Roberts' decision was a pretty revolutionary departure from both constitutional principle and legal precedent, with the effect of creating new, sophistical, and theoretically unlimited taxing powers. You can't really spin this as a prudent and organic development of the Anglo-American legal tradition. If anything it's more akin to those Stuart power-grabs that led to the elucidation of those very principles of common law liberty. But be careful in wishing for that, because in doing so you'll have to accept that its principles were not fully established without hot and heavy resistance to overreaching rulers.(In passing, the English common law actually is part of American jurisprudence, though to which level of government it applies, and how, has been a source of controversy since 1789. James Stoner, I believe, has written quite a bit about this. Furthermore, the fact of a written constitution has not prevented America from having her own common law, which is what our precedent-based system more or less works out to.)To wrap it all up, it seems that you are omitting those concrete and contextual considerations that make all the difference in applying moral principles to particular situations. Public health care in France or Britain could be a postmilennial paradise, and yet in America it could indeed be a messianic power-grab. The difference would hang on context–how it relates to their respective political traditions, legal precedents, and moral conditions.

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  13. Steven W

    Hello all,I actually don't have any plans on writing on the Roberts opinion, though Peter Escalante does. I have read through the various documents as well as commentaries, and I'd sum up my take on things this way:1) Roberts agrees with the conservative dissent that Obamacare cannot be deemed constitutional on the basis of the commerce clause. The "liberal" justices thought that it could, but Roberts says no way and actually scolds previous appeals to it as overreaching.2) Roberts also doesn't comment on the limits of Congress's tax power. He simply points to the precedent, which has been to allow the broad interpretation of the tax clause (which goes all the way back to Hamilton). Thus, I wouldn't say that Roberts has "expanded" govt. power, unless we only mean by a sort of marginal degree- one more link added to the already-existing chain.3) The dissenting judges and Roberts all agree that IF Obamacare is a tax, then it is constitutional. The divide comes in the question of WHETHER it is a tax or not. The dissenting judges say that it is not because the original intent said it was not, and they say that if it is, then it creates a sort of new scenario for taxation- a sort of direct tax that can be avoided by using private commerce. (I'm very sympathetic to their argument here. It IS a weird situation) Roberts' response is that the justices are bound to find a law constitutional unless it is beyond a reasonable doubt that it is not. He cites precedent where the court interpreted a law contrary to its original intent in an effort to find it constitutional. Thus Roberts' commitment to judicial restraint causes him to not overturn a law in an ambiguous situation (I'm also sympathetic to this argument.) It was precisely Roberts' conservatism that caused him to act as he did. 4) In all cases the constitution is being respected. The liberal justices are attempting to argue their case based on the commerce clause. We can blast them for it, but they are still trying to "make it fit." (To me a lot of FVers need to consider this angle as an analogy to their own relationship to the WCF. They clearly don't care too much about "original intent" or even logical trajectories- only whether or not their views can "fit." And to their credit, the PCA has typically allowed for this tactic in its "good faith subscription policy.") The conservative dissenters are attempting to argue their case based on the restrictions of the constitution- enumerated powers, etc. And Roberts is attempting to argue his case based on the constitution and judicial precedent. This is precisely what judges do- The decide on controverted cases using precedent and their own prudence. In all cases the constitution and US legal history are being used as standards of judgment. We are free to debate over which arguments are best, but it seems clear to me that in all cases, arguments are being made which concede the constitution's legitimacy and binding authority, even over Obamacare.

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  14. Brad Littlejohn

    Just Kent for now, since his was the most substantive objection—I'll get back to you, Jess, tomorrow. And I've just now noticed Steven's response, after having already typed up mine, so I apologize if there's any overlap.Kent,Thank you for an extremely thoughtful engagement. First of all, I should emphasize yet again that my original post was put up before Wilson's sermon. Admittedly, Wilson's sermon does lay out his case more clearly than the fragmentary blog posts that originally prompted these thoughts, but it also raises the stakes and the burden of proof considerably higher, so I'm not sure there is any net gain. It was perhaps an overstatement, though, to add at the top of his post that "all of the concerns" voiced here applied to his sermon. I have changed that to "many of." However, that said, I think you are giving the sermon a very charitable read indeed. On your construction, the sermon offers us a tight and carefully qualified syllogism, that goes something like this:Given that1) Any government that lifts itself up to be as God is idolatrous and must be resisted, and2) Any government that claims to have authority and power without limit is claiming to be as God, and3) The limit must be a "functional limit" delineated somehow in a supreme law of the land, and4) In our country, the supreme law of the land, and our "functional limit," is the Constitution, and5) That Constitution sets strict limits to the government's power to tax, and6) The Court, in their approval of Obamacare, violated those limits,it follows that the Court denied the existence of any functional limit on our government, and thereby proclaimed our government to be as God.On the basis of this syllogism, it would not follow that something like Obamacare would constitute idolatry in any nation, since they might have very different Constitutions, or might not have Constitutions at all—they would have some other kind of "functional limit" which might be much more permissive. We just happen to live in a country with an unusually tightly-defined limit, and that means that it takes a lot less for us to claim to be God than it does for some other countries.Now, on a careful re-read of the sermon, I think you can just about piece together that syllogism, once you've disentangled it from all of the hyperbolic rhetoric and distractions. But if he really wanted to guard against misunderstanding, and be clear that it's not government healthcare as such that's the issue, and that Constitutional limitations on government are not to be confused with biblical limits, then he could've been a lot clearer. The rhetoric of the sermon was such to blur any such fine distinctions. Indeed, at one point, he makes a point of contradicting one of your interpretations (at least so it would appear). You said, "I'm pretty sure he would agree that the states and other local governing bodies would have every political right (whether wise or not) to establish their own health care systems." But he says, "If this were a partisan thing, we would conveniently overlook the fact that Gov. Romney in fact pioneered this particular form of legislative corruption in Massachusetts while he was governor there, and we would be pretending that the chief justice responsible for this travesty wasn’t a Republican nominee to the court. Partisanship would draw the lines in any way that was advantageous to a particular party or faction, or a particular candidate, and always with a weather eye on the next election. But this is not an issue of right or left, but rather a simple matter of right and wrong." Now he's out to make a somewhat different point there, but he appears to think that this legislation was just as corrupt—"a simple matter of right and wrong"—when applied at the state level as it was as a piece of federal legislation.So in my view, the sermon is at the very least insufficiently clear to make the careful distinctions that would avoid conclusions like "government health care is ipso facto a violation of biblical government" or "government not conducted within a set of constitutionally limited powers is inherently tyrannical." However, let's give it every benefit of the doubt and ignore those distractions and focus on the syllogism here offered. There are a lot of ifs in that syllogism. One that I have expressed considerable doubts about in this post is that relating to #3. Exactly what is this "functional limiting principle" that Wilson is demanding, if a government is to be Biblical? And once a particular principle is adopted—in our case, the Constitution—does that become absolute? What if our nation decided to chuck the Constitution because we decided it wasn't biblical enough, and decided to govern instead according to the Law of King Alfred or whatever? Would Wilson consider that a rebellion against God? Presumably not. What if we decided to govern simply by a common law tradition and a sense of natural equity? Maybe a bad idea, that wouldn't last for long…but is that a rejection of any functional limit? I don't know. I'm just not clear as what Wilson has in mind here.More importantly, though, is 5 and 6. Does the Constitution in fact lay down strict limits on the government's power to tax? I'm afraid I don't see the evidence for that claim. Roberts explicitly denies it in his opinion, and indeed, the precedent of court decisions has given the federal government a great deal of taxing power. If our common-law tradition of relying heavily on precedent is important, as you agree with me that it is, then this should count for a good deal. Indeed, Roberts makes an extremely compelling argument from legal precedent that the individual mandate does not constitute any extension of Congress's authority or the violation of any existing powers. Now, you might disagree with him, but Wilson is asking us to believe that Roberts has not merely misinterpreted the Constitutional limits, or stretched them in some way, but balled them up and thrown them out the window. He has "declared that there is no limiting functional limiting principle." And then Wilson says, "this Court decision excluded, by definition, any limiting principle to the power of congressional taxation." But this is simply unfair to Roberts' decision, which clearly does recognize limits to the power of congressional taxation. Of course, Wilson later elaborates "that the language of the chief justice on the commerce clause meant that he wished for a limiting principle. That might be true—he may have wished for it—but he most certainly did not protect or establish it. In fact, he says that there is a limit to the taxing power of Congress. He insists upon it, but then refuses to say what that limit is, how we are to define it, or how we are to know when we get to it." But this is to mistake the whole nature of our judicial system, especially on such hazy questions as this. There are limits, but they are not defined in some black-and-white "here and no further" way, as Wilson clearly wants, but by reference to what is reasonably within the bounds of existing legal precedent, which is always somewhat fluid and flexible and dependent upon prudential judgments.Now, one can certainly argue that the effect of this decision is to go well beyond the legitimate limits of existing precedent, or even that existing precedent perhaps should have been defied in this case. But one must recognize that in making such a judgment, one is merely venturing an opinion on a hotly disputed issue, one on which the nation's greatest legal minds divided 5-4. Given the difficulty then of establishing an absolutely firm answer to (6) and (5) of the syllogism, I would suggest that there is just way too much ambiguity to establish a categorical judgment of such importance as "our nation has by this act made itself out to be God," much less to dare to follow such a judgment with the words, "I have been declaring all these things in the name of Jesus." By those words, he raises the stakes very high, much higher than I think the argument he has supplied can support.

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  15. Matthew N. Petersen

    To expand your penultimate paragraph: I also cannot see why such a limit must be articulated in this decision. Roberts is rulling on this particular law, not writing a Constitution. His job is to rule on this law, not enumerate the powers of Congress. Also, if there is not now any articulated limit, there wasn't before either.

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