We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these rights are life, liberty, and the pursuit of happiness. ~ Thomas Jefferson
The Declaration’s first sentence is another collection of ideas embedded in the nation’s political culture. In simplest terms, it states:
- We all have a right to liberty.
These ideas have become an American creed: no one can force me to do anything if I am minding my own business. No one can boss me around.
The recently signed health care bill abrogates these rights. Moreover, it violates Lincoln’s vision of a free society: first you work for others, then you work on your own account, and at last others work for you. The health care bill locks in a system where almost everyone is stuck in the first phase – working for others. Under the new regime, it is almost impossible to move out of that phase in a steady progress toward the next two. People sense that in their gut, that this effort to enhance security fundamentally undercuts a life model that we have striven to preserve. Under the new model, we cannot pursue happiness the way we did before. We look at Lincoln’s inspirational view of life, his hopes for self-improvement through all the stages of life, and we know we have to settle for less – a lot less.
Already, the difficulties of becoming self-employed, then starting an enterprise of some kind where you would employ others, was so difficult that most people did not attempt it. The new bill locks in a system where only the most wealthy, those who have already made a lot of money in business, can do what Lincoln describes. The path of growth and self-fulfillment is closed to most people under the interlocking requirements of the new health care regime.
The bill’s backers regarded the change as a fundamental improvement in our security. Many others saw the price paid in freedom – the unutterable, dismaying loss of life choices inherent in its requirements. This indeed is a change in our social compact. This indeed is a change that ought not to come about through congressional deals and parliamentary maneuvers that leave so many to look in astonishment at what we have lost without having a say.
I said emphatically when the bill passed: “This law is unconstitutional.” It is not unconstitutional because it violates the letter of our written Constitution. It is unconstitutional because it violates our long established social compact. As people said at the time, never before has the government required you to buy something, such that you are subject to punishment if you do not comply. That is correct: it is an invasion of personal property that has no precedent. Everyone is subject to the law. All must comply. It leaves no choice of withdrawal. We have never imposed a requirement like this before, and by the terms of our social compact, largely unwritten, it is clearly unconstitutional.
If we let this law stand, though, if we let it take effect and become established – it will become part of our social compact and therefore become constitutional. The loss of liberty will be accepted, the law’s new requirements and mutual obligations will become part of the agreements we live by together, and we won’t be able to go back.
As the new health care regime becomes established, the new law will gradually become constitutional, irreversible. The law that was unconstitutional when it was enacted, will become constitutional as its requirements become an accepted part of the way we live together. That is how our social compact evolves.
Both sides in this controversy are right when they say something fundamental has changed. Those who pushed the change through regard most of the changes as good. The sooner it takes effect, the better. Those who object to the change recognize an irreversible step toward a society that values security over freedom, that is willing to impose a high price on all in order to provide additional welfare for some.
If we as a political community permit this loss of freedom, we can accept any loss. If we accept this loss, we will have agreed that principles of security, not freedom, take highest precedence in our social compact. If we acknowledge that principles of security take highest precedence in our compact, we have inaugurated a fundamental change in our compact, one that counts as constitutional.
A change that fundamental should not be enacted by congressional maneuvers, maneuvers required because the majority party lacked the required number of votes in the Senate. In effect, congressional leadership bypassed the normal process of reconciliation between the House and Senate bills, because the Senate did not have the sixty votes required to pass a revised version of the bill.
Opponents – a majority of the citizens out in the land, out among the multitude of citizens who would be subject to its requirements – watched helplessly as procedural votes enacted so fundamental a change in the way we live together. The spectators, whose voices the Democrats in Congress did not hear or take into account, knew instinctively that what had just happened was not right. They were correct in their estimate. They had witnessed a violation in the way we conduct our business together.
And they had witnessed such a clear violation of our fundamental liberties that the government had essentially dissolved its own authority. It had taken away liberty and property that it was pledged to protect. It had violated citizens’ rights so thoroughly that citizens no longer had an obligation to obey its dictates. Its practical legal authority had come to an end.
