This week we witnessed what Mark Levin, the leader of Landmark Legal Foundation called a lawless decision by the courts to impose Obama–care on the country. What is at stake is nothing less than the idea of sovereignty.
Are we a nation ruled by the people and its representatives under the Constitution or are we a nation under the sovereignty of the courts? The general rule has become the Constitution is whatever the Supreme Court says it is. The problem with that is that it places us in a situation where the law has been reduced to a matter of opinion of five black robed justices.
But the Supreme Court has been wrong in the past. They have even had to reverse their own rulings and the Court has also been repudiated by the people.
For example, in 1798, Congress passed the Alien & Sedition Acts, making it a crime to criticize the government. There was a huge outcry against the Acts, but lower courts upheld them as constitutional. As part of his Presidential campaign, Thomas Jefferson ran on repudiating those Acts. He was successful and the Acts were struck down. The judgment of history has been that the Court decisions were profoundly wrong.
That was the exercise of legitimate biblical and constitutional power by a truly sovereign people. This raises the question: Why have a Constitution at all if the opinions of the Supreme Court supersede it? A doctrine of "Judicial Supremacy" implies the judiciary has virtually the divine right to play God. But we know that the judicial branch is only one branch of government that functions under the Constitution having its power delegated to them from “We the People.”
Political Authority is Derived from the People.
We do not believe that any political or religious leader or group of leaders has the right to Lord over another person.
God has made man’s conscience free, even to the extent that Almighty God himself, who alone has the Divine right to rule and could command raw obedience, left it to His people to ratify His dominion over their life. If God’s dominion over His people is established by the consent of the governed, then a free people can not be made to submit to tyranny from any branch of government.
At Mt. Sinai under Moses the people ratified the covenant. “So Moses came and told the people all the words of the Lord and all the judgments. And all the people answered with one voice and said, ‘All the words which the Lord has said we will do.’” (Exodus 24:3)
At Shechem under Joshua, the people ratified the covenant. “Then Joshua gathered all the tribes of Israel to Shechem and called for the elders of Israel, for their heads, for their judges, and for their officers; and they presented themselves before God 2 and Joshua said… 15 ‘…if it seems evil to you to serve the Lord, choose for yourselves this day whom you will serve… [b]ut as for me and my house, we will serve the Lord.’ … 24 And the people said to Joshua, ‘The Lord our God we will serve, and His voice we will obey!’ 25 So Joshua made a covenant with the people that day, and made for them a statute and an ordinance in Shechem.” (Joshua 24:1-15)
Remember that even after God appointed Saul to be the first King of Israel, Saul was not king until the people, represented by the elders of Israel, assembled together at Ramah to establish his office. David, Saul’s successor who was explicitly selected by God, was not considered to be the King until he was anointed by the elders. So in the Hebrew Republic God vested political authority in the people, who then lent that authority to the civil magistrate.
It was God’s Word written that served as the Constitution of the Hebrew Republic. While America is not Israel in respect to being God’s chosen people, we are an exceptional nation.
We are exceptional not because we are inherently superior to other people, rather by the grace of God we are the first republic in the history of the world to advance the mature ideals of Christian Liberty under God with a written Constitution that limits, enumerates and divides the power of the government.
The Founder’s relied upon the pattern of covenant theology found in the Bible. To avoid the arbitrary rule of man they codified a written Constitution. It was ratified by “we the people” as the rule of Law. This was a radical political ideal.
We are supposed to be a nation of laws under the Constitution, not a nation of men, But “we the people” must demand it. Unfortunately, the Constitution is not self executing, therefore we must elect representatives who up hold it.
The meaning of "limited government" is most easily grasped in contrast to the doctrine of the Divine Right of Kings. Under that doctrine, the king, and by extension his entire government, held unlimited sovereignty over its subjects. The king could do what he wanted to whomever he wanted whenever he chose.
But in Israel the King was limited in his power. “And it [the law] shall be with him [the king], and he shall read it all the days of his life, that he may learn to fear the Lord his God and be careful to observe all the words of this law and these statutes…” (Deut 17:19) The King was limited to obedience to God’s law. The moment he abandoned God’s law, his authority was nullified.
So what was the remedy for tyrannical rule? In II Kings 11 we have the precedence the Founders used to justify their throwing off the illegitimate rule of the tyrant King George. Queen Athaliah, the wicked mother of the evil King Ahaziah, usurped the throne upon Ahaziah’s death. She then murders all her rivals, but a legitimate heir, the infant Joash, was hidden and able to escape. In the seventh year of Athaliah’s reign, the Priest Jehoiada enlisted the military leadership, the royal bodyguards and escorts and made a covenant with them to depose Athaliah and coronate Joash.
“And Jehoiada the priest commanded the captains of the hundreds, the officers of the army, and said to… ‘ slay with the sword whoever follows her…’ So they seized her… [and] she was killed. 17 Then Jehoiada made a covenant between the Lord, the king, and the people, that they should be the Lord's people, and also between the king and the people.” (2 Kings 11:15-17) The lesser magistrates or authorities in terms of status, in this case the Jehoiada the Priest and royal military leadership, had the right and duty to resist higher authority of the Queen when she become tyrannical. This is the doctrine of interposition. So no one has the absolute right to reign. Everyone is accountable to God and his word, even Kings.
John Eidsmoe, one of the leading Christian jurists in the country, has shown that the purposes of legitimate biblical government are threefold: (1) To restrain the exercise of sin; (2) To enforce God's standards of right and wrong. This is based on the Apostle Paul’s teaching (“For rulers are not a terror to good works, but to evil. Do you want to be unafraid of the authority? Do what is good, and you will have praise from the same. For he is God's minister to you for good. But if you do evil, be afraid; for he does not bear the sword in vain; for he is God's minister, an avenger to execute wrath on him who practices evil.” [Romans 13:3-4]). (3) To maintain order so Christians and others can practice right living. (“Therefore I exhort first of all that supplications, prayers, intercessions, and giving of thanks be made for all men, for kings and all who are in authority, that we may lead a quiet and peaceable life in all godliness and reverence.” [1 Timothy 2:1-2]).
Christians have always affirmed there are limits to human authority and when human authority becomes tyrannical it is legitimate for Christians to resist. Thomas Aquinas (1225-1274) says, "That a tyrannical rule… cannot in any reasonable construction be accounted lawful, and therefore the disturbance of such a government cannot be esteemed seditious, much less traitorous." The Magna Carta of 1215 stands as an early exemplar of a document limiting the reach of the king's sovereignty. It stated the barons possessed rights they could assert against the crown.
A classic justification for the righteous resistance to tyranny can be found in, Vindiciae Contra Tyrannos, A Defense of Liberty Against Tyrants, written in 1579 by Stephen Junius Brutus. “[I]f a prince purposely ruin the commonwealth, if he presumptuously pervert and resist legal proceedings or lawful rights, if he make no reckoning of faith, covenants, justice nor piety, if he prosecute his subjects as enemies… then we may certainly declare him a tyrant, who is as much an enemy both to God and men…”
The English Bill of Rights associated with the Glorious Revolution of 1688 established the limits of royal sovereignty. The United States limited government three ways: (1) By the terms of the written document itself, (2) By the election by the people of the legislators and the executive, and (3) By the checks and balances through which the three branches of government limited each others' power.
If it ever came down to a question of who has the final authority, Alexander Hamilton responds, “the Constitution is the ‘superior’ authority and the government is the ‘inferior’; the Constitution is the ‘original’ power and the government is the ‘derivative’; the Constitution is the ‘principal’ and the government is the ‘deputy.’” This notion of limited, Constitutional government means that any exercise of power not authorized by the Constitution is illegitimate.
The Founders did not intend for the judiciary to have a divine right to make binding decrees from the bench any more than King George had "the divine right of kings" to make his tyrannical decrees from his throne. America has been functionally taken over by a power that fraudulently exercises a power foreign to the Constitution. The Supreme Court has in effect become a living constitution, what they say is considered to be the final word on the matter. But in America it is not the courts but we the people who have the real, legigtmate supremacy.
US Constitution Section 1:7; All bills for raising Revenue shall originate in the House of Representatives; 1:8:1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; 1:9:4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census of Enumeration herein before directed to be taken.
Constitutional scholar John Eastman has come out and made an unequivical statement that [The Obama-care ruling] is … fundamentally wrong on Constitutional law.
Even Chief Justice John Roberts and the court majority tells us that part of the Obama-care law is unconstitutional as an exercise of Congress's power to regulate commerce among the states. Congress cannot force people into commerce in order to gain authority to regulate. The court’s Commerce Clause holding should have been the end of the matter.
Instead, the court manipulated the law to treat it as a tax and then held that the taxing power of Congress is broad enough to uphold this law.
There are several problems with that according to Eastman. The President and leaders in Congress argued vociferously that the individual mandate was not a tax. Congress did not impose a tax, it imposed a penalty for failure to comply with a regulatory mandate. If indeed it is a tax, the Anti-Injunction Act deprives the Supreme Court jurisdiction to hear the case. The so-called "tax" did not originate in the House of Representatives. The Constitution requires this as a check on abuse of taxing authority by making the politicians responsible for raising taxes the ones most directly accountable to the people. The Constitution limits the power to tax to provide for the "general welfare." Taxes have to be equitable and not cause massive transfers of wealth from one group of citizens to another.
If it were a "tax," it would be a “direct tax.” A direct tax is a tax upon a person, his property, business, proceeds, income or wages. An indirect tax is based on the buying and selling of goods. The original motive for the apportionment on a direct tax was to keep the newer, larger and poorer states from looting older, smaller and more wealthy states by a majority vote. That means, for example, if the Feds were to impose a property tax, they would have to adjust the rates coming from the states in a way relative to it populations: i.e. California would have to pay 72 times the taxes of Wyoming because it has 72 times the population.
If Congress can impose a direct tax on some while exempting others, there would be a serious risk of the tyranny of the majority. 51% of the population could simply tax the other 49%. That can't happen with a direct tax under the Constitution. Chief Justice Roberts in a great bit of circular reasoning, contends that the tax is not a direct tax because it doesn't apply to everyone. But that says nothing about whether it is a direct tax or not. It merely admits that if this is a direct tax, it is unconstitutional.
So why is it a direct tax? Because it is not any of the other kinds of taxes authorized by the Constitution. It is not an excise tax. It is not an import duty. It is not an income tax, because it is not triggered by your income. It is a tax imposed for not doing something. That is the very definition of a direct tax and it is therefore unconstitutional.
The penalty for Obama care was not to raise money as a tax. The real purpose was to encourage certain kinds of behavior. So this is a regulation of commerce. But the court majority rejected the justification of Obama-care under the commerce clause. When a “tax” is so high that it is so prohibitive and forces people to change their behavior, but it raises little money, it is really a regulatory measure, not a tax.
But if this penalty is a tax, it is a direct tax. Therefore it must be apportioned. Congress did not apportion the tax, therefore it is void.
Why does this matter? Isn’t this like debating how many angels can dance on the head of a pin? Absolutely not.
Obama-care forces tax-payers to subsidize murder through the funding of abortion. Healthcare rationing will establish death panels, like in all other countries with socialized medicine, to determine if some people can live based on their “usefulness.” Preborn babies and senior citizens are in the crosshairs of Obama-care. So on moral and religious liberty grounds we must repeal Obama-care.
But we must not minimize the constitutional process for raising taxes is critically important. The power to tax is the power to destroy! One of the principal reasons we had a revolution was the unaccountability of the King and Parliament in imposing taxes on the colonists. Obama-care is the largest tax increase in the history of the world with 21 new taxes. But we were assured by Obama that this was not a tax.
The Constitution insures that our lawmakers are accountable to the people for their actions. Can “we the people” muster the political fortitude necessary to elect sufficient majorities in the House and Senate and take the White House in order to reverse this immoral act? It may take more than one election cycle to achieve the repeal. Are we up to the task?