“A VERY ODD CREATURE INDEED”
by jtx, ©2012
(Jul. 4, 2012) — Just as the neologism of the Jabberwock in Lewis Caroll’s Through The Looking Glass, the mythical Jackalope is also a chimera – an animal assembled from parts of many animals. The same thing is obviously true about the recent SCOTUS decision in the healthcare act.
If you’ve traveled much in the western part of the US, you may have encountered an image of the Jackalope but not the creature itself, since it is mythical. It is part Jackrabbit (normally most of the body) and part Antelope (the horns). So it pretty much is with the PPACA (aka the Heathcare Act – and also called other things). The Act (presumably now law) is a very odd creature indeed, as we shall see, judging from the history of our country.
In fact, there are many reports about Chief Justice Roberts personally being treated to a bit of “Chicago politics” by a combination of the Democrats, the mainstream media, and even Obama himself. But there is another likely possibility that arises due to Roberts’ unusual concern about “his” court and that of his own place in the pantheon of “Great Courts” and “Great Chief Justices.” Roberts is well-known for wanting “his” court to be “collegial” since he believes the Marshall Court of the Great Chief Justice John Marshall was of that persuasion (and Marshall was a Federalist). Roberts has publicly hoped for “his” court to be on the same level, if not surpassing, the reputation of that of the Marshall Court. This tells a lot about some of the impetus behind his majority opinion that is like the Jackalope above …. Fearsome.
First, though, a comment about taxes: there are basically two types represented in the United States Constitution – direct and indirect. Indirect taxes are mentioned as “duties, imposts, and excises” in Article 1, Section 8, clause 1 and are imposed on an event or item, such as a sales tax for the buying of a candy bar (but never in American history has a federal indirect tax been imposed on an American’s inactivity, e.g., failure to buy the candy bar). Direct taxes are those such as what we know and love as the income tax and are borne entirely by the entity that pays the tax since it cannot be passed on to another entity. The Jackalope Tax is very much a direct tax.
Article I, Section 9, Clause 4 contains the firm prohibition against direct taxes unless they are apportioned via the Census. Of note here is that the present Income Tax is allowed specifically by the 16th Amendment which resulted from a poor political compromise between the Taft Administration Republicans and the Democrats and started the Income Tax in 1913. Prior to that, and even before the Constitution (see the Stamp Act mentioned later), direct taxes were (and still are) a hated abomination by most people. The first Income Tax implemented (even though not constitutional) was Lincoln’s 1862 tax law which was intended to help pay for the costs of the War Between the States. The tax operated for a few years (since there were other more pressing matters to recover from the horrendous war) and was finally repealed in 1872. Between then and the 16th Amendment, the Supreme Court always held such a direct tax as the income tax to be unconstitutional. Note that the 16th Amendment allows only income to be taxed, not activity – or, more precisely, a lack of activity such as the Jackalope Tax being discussed.
Some of us may have forgotten our country’s history, so a quick synopsis is in order to see the part played by taxes and related activities:
1765 – The Stamp Act imposed on the colonies (e.g., the US) by King George III of England which was a direct tax and greatly hated.
1770 – The Boston Massacre. British soldiers were to protect and support crown-appointed officials trying to enforce unpopular Parliamentary legislation (not necessarily just taxes), but things escalated to the point where five people were shot. Paul Revere kicked off the practice of mainstream media misrepresentation by making a lurid, misleading poster of the affair that was widely circulated and aroused many citizens (then called “subjects”).
1772 – The Gaspee Raid was an act of defiance to the King by Rhode Islanders in luring one of the King’s revenue schooners (enforcing direct taxation) into being grounded on a river shallows. With 60 or more men in longboats attacking the vessel, the colonials shot its Captain, then boarded and burned the ship. The King offered a huge reward for each Raider identified with the intent to take them to England for trial and hanging (not necessarily in that order). None of the rewards were ever collected (and many of the Raiders are not known to this day).
1773 – The Boston Tea Party. I think most of us are aware this was a protest against the Tea Tax just imposed. What is not so well-known is that the Boston Tea Party and the Gaspee Raid were the primary motivators in holding the First Continental Congress in 1774 since many in the colonies did not wish to see other colonists punished by the foreign King.
1775 – In Lexington and Concord we then had “… the shot heard ‘round the world,” shortly followed by the 1776 Declaration of Independence and in 1787, the United States Constitution.
But back to talking about the Jackalope Law. It is true that as written, the law kicks the shins of the Commerce Clause and the Necessary and Proper nonsense that has been going on for generations as well as some of the other liberal love paens therein that have been lavishly applied for far too many years to do anything but damage to our country. That’s all to the good, and if things were to stop there, it would be “all good,” as said in some places. The trouble is that Roberts’ reasoning itself is in violation of the Constitution and its restrictions on direct taxes, and the Supreme Court does not have the charter to create new law. The Jackalope Law started life (illegally in the Senate) as a set of punishments. Perhaps he recognized that and expects it to be quickly overturned; perhaps he does not. Only time will tell.
In the meantime, the implications are chilling in that Congress has been given the power to make laws on any subject, impose a fine for noncompliance, have the IRS enforce the fine, and then claim that the entire misbegotten structure is part of the tax power. No one with a serious reading of the Constitution would believe the Founders had any such thing in mind!!! The result would virtually gut Article I of the Constitution, which grants Congress only 18 specific powers – and does not grant a general power to legislate on everything in the manner described. If one is an uber-progressive/socialist/communist, what’s not to like here? Other than that…not so great!!! It rips the Constitution apart very completely and thoroughly, perhaps even more so than having a man who has never shown himself to be constitutionally eligible to hold the office he now occupies.
It is now eminently clear that the reason SCOTUS refused to hear the very well-pleaded Kerchner et al v Obama & Congress case in 2010 was that they could not muster a fourth vote “in conference” for such a hearing when there were three who would vote for such a hearing: Scalia, Thomas, and Alito. It now is apparent that Roberts was merely being “collegial” by not being the fourth vote to take up the case (dealing with Obama’s eligibility and filed while the man was still president-elect).
Perhaps Roberts should take a deep breath, back up and rescind his decision in at least this Jackalope Law, “collegiality” notwithstanding. True, it will reduce his exercise of declaring a tax that is not a tax a tax, but that’s a good thing in this circumstance. If he does not, he runs into the certainty of being known NOT as the “Great Justice” on a par with John Marshall, but rather as the last Chief Justice of the Supreme Court and the one who destroyed the Constitutional Republic. The tortured reasoning used to declare a penalty a tax is nonsense sprinkled with aberrations in common sense at the very best and shows the grim pseudo-surgical requirements to assemble what is in reality a Jackalope Law. Much of the reasoning is like the conversation between Alice and The White Knight in Through The Looking Glass when Alice was trying to understand why the White Knight called a musical composition “Haddocks Eyes”/1/. We should all keep in mind that Chief Justice John Marshall was the man who said “the power to tax is the power to destroy” … and that’s exactly what the law does if it is allowed to stand.
Just as with the advice in the Jabberwocky to “Shun the Frumious Bandersnatch,” we should also now be admonished to Beware the Fearsome Jackalope!! For details, you should perhaps read Lewis Carroll – it’s a lot like reading the ruling opinion on the Healthcare Act.
Footnotes (from Lewis Carroll’s Through The Looking Glass):
/1/ The name of the song is called “HADDOCKS’ EYES.”‘
‘Oh, that’s the name of the song, is it?’ Alice said, trying to feel interested.
‘No, you don’t understand,’ the Knight said, looking a little vexed. ‘That’s what the name is CALLED. The name really IS “THE AGED AGED MAN.” ‘
‘Then I ought to have said “That’s what the SONG is called”?’ Alice corrected herself. ‘No, you oughtn’t: that’s quite another thing!
The SONG is called “WAYS AND MEANS”: but that’s only what it’s CALLED, you know!’
‘Well, what IS the song, then?’ said Alice, who was by this time completely bewildered.
‘I was coming to that,’ the Knight said.
‘The song really IS “A-SITTING ON A GATE”: and the tune’s my own invention.’
Editor’s Note: *More information on the history and folklore of the jackalope can be found here.