You have to give Mitt Romney credit for one thing: he is not a hater. Perhaps that is why he sometimes seems an odd choice to be the Republican Party’s presidential candidate. Romney’s demeanour is decent, polite, and upstanding in a way that leans a little towards elitist, technocratic, cool. In those respects, he is a lot like the Obama of 2008. Or like John Kerry in 2004. Or even a little like Al Gore in 2000.
That Romney is not rabid may be a disadvantage, given the state of the political movement he is now trying to lead. When the Republican attack dogs are biting, Romney is a pooch resting sleepily on the porch. Jindal can do rabid. Ryan can do rabid. Rand Paul is a lot more rabid than his dad (this also makes him more ‘mainstream’, apparently). And Palin, who proved that being rabid was more popular than being right (or competent, or reading a newspaper) has been barking at everyone else, saying that McCain lost in 2008 because he was not rabid enough. So Romney was especially unlucky with how John Roberts upheld the constitutionality of Obamacare. The right-wing hounds saw Obamacare in black-and-white terms. Roberts, a deeply principled conservative, saw it in full colour, and dared to uphold the individual mandate as constitutional per the government’s tax-raising powers. He was brave enough to do so, even though he must have known it would set the dogs wailing at the moon. And they did.
And this left Romney looking uncomfortably aloof last week. Whilst the GOP dogs sank their teeth into Chief Justice Roberts, they also sank their teeth into Obama, again. Apparently, they see no contradiction in saying:
- Roberts is a bad man for pretending the individual mandate is a tax; and
- Obama is a bad man for pretending the individual mandate is not a tax.
Yup. That is what they are saying. They say Roberts is a bad judge because he perceived some overlap between things described as penalties, and things that are taxes. And they say Obama is a bad president because he raised taxes, whilst pretending they were not taxes. It is impossible for both of these statements to be true, at the same time. I know which one is true. Does the American right? Their rhetoric is overpowering their ability to reason. To reduce the issue to its bare bones, some on the right say a tax cannot be a tax unless it is a called a “tax”, even when a conservative judge says it is a tax, but that it definitely is a tax when a liberal president says it is not a tax. And these people claim to be more trustworthy than the Chief Justice and the President they denigrate. Some of them even claimed that Roberts’ reasoning was ‘tortuous’, which I found odd, because the opinion I read was both elegant and straightforward. I have my own ideas about who is torturing the American political system, spewing bile that barely disguises its febrile irrationality. Rhetoric is turning cancerous; the goal of persuasion is being allowed to override other considerations, like honesty, and consistency. And whilst the President and the Chief Justice suffer the criticism, it is their feverish critics who are most obviously diseased.
All of which leaves Romney looking rather uncomfortable. The candidate-formerly-slammed-for-his-etch-a-sketch-positions is no longer being slammed by the people who slammed him before. He must be happy about that. It is funny how nobody comments on that particular flip-flop by certain sections of the media. These dogs are wild. They can be fed, but not tamed, as Romney surely appreciates. But for the time being, they do not comment on Romney’s views about Obamacare. This is a shame, as this latest Supreme Court decision has left poor Romney on every possible side of the debate about healthcare mandates. To clarify, Romney is in favour of the individual mandate (in Massachusetts), and against it (elsewhere), and considers it a tax (elsewhere), whilst not a tax (in Massachusetts). As Romney helpfully explained:
“Actually, the chief justice, in his opinion, made it very clear that at the state level, states have the power to put in place mandates,” he said. “They donâ€™t need to require them to be called taxes in order for them to be constitutional, and as a result, Massachusettsâ€™ mandate was a penalty.”
The Chief Justice did no such thing. The Chief Justice did not rule that things need to be “called” taxes to be constitutional. He ruled that the individual mandate in Obamacare is a tax. Tax. Not “tax”. And the Chief Justice pointed out something which should be obviously true to anyone who can reason clearly, but which is extraordinarily inconvenient for the many who suffer from political dementia. A tax can be a penalty and a penalty can be a tax. At the same time. Roberts even gave examples of taxes that are also penalties. And Roberts also made it abundantly clear that it does not matter what you call something. All that matters is what that something really is. So the Chief Justice, in his opinion, made it very clear that the kind of argument used by Romney is hogwash. That the Massachusetts mandate was a penalty does not stop it also being a tax. Which is fortunate for the rest of us, because it obviously is a tax, and people should know about a politician’s attitudes to taxes. Which is unfortunate for Romney, because whilst he likes people to slam Obama for raising taxes, the Roberts ruling also helps to clarify that Romney was raising a lot of taxes-not-called-taxes when he was Governor of Massachusetts.
Not that Romney should be singled out for criticism. Nobody made Obama describe his tax as a penalty. Obama keeps pretending his tax is only a penalty, even though it is plainly a tax as well. And if Obama pointed to Romney, and said: “blame Romney – we were just copying from him”, that would be scant excuse. By now, it should be clear that politicians are great at knowing the difference between “words” and words, although they only acknowledge the difference when it suits them. The conservative critics of John Roberts are wrong to suggest Roberts rewrote Obamacare. He did not rewrite it. Roberts saw Obamacare for what it really is. The real criticism is that the words of the law misrepresent the substance of the law. And when we hear complaints that Obamacare would not have passed in Congress without this misrepresentation, then what does that say about the politicians who sit in Congress? Are they happy to increase taxes, but only on condition they are not labelled correctly? Or were they too stupid to see the tax implications of a new law, unless it is explained to them in simple language, to make it easier for them to understand?
Some leftist pundits did give Roberts plaudits – for the wrong reasons. Whatever their political persuasion, no journalist can see inside Roberts’ head, in order to find the reasons why he made his decision. If they want to know the reasons for his decision, they should read the opinion that he wrote. So some applause from the left is as misguided as the opprobrium Roberts has received from the right. Roberts made it clear that governments, can, will and do lie about taxes. They have the power to raise taxes, but they will try to call them something else. Roberts’ decision is a victory for government transparency. And transparency empowers the greatest limit on government, which is not the constitution, but the voter. Roberts also reminded us that constitutionality is not based solely on words; we must understand the actions that government wants to take. This is not a gift for the left. It raises the bar for justifying government action. Forget what government says about its intention – the question is what it seeks to do. And because the left seeks a more active form of government than the right, then the burden of justifying their proposed actions will weigh far more heavily on them.
Obama, consummate wordsmith and propagandist that he is, immediately tried to milk every advantage by positioning himself as both a winner and a statesman who rises above a petty legalistic squabble. In an inflection of the usual ‘class war’ accusations, I suspect some of the hatred Obama receives from the right is based on jealousy. He is good at playing with words. At least, he is good at it when speechifying. The Roberts decision rests on the observation that Obamacare is a lousily-written law, and constitutional despite its best efforts to appear unconstitutional. But at the lectern, Obama is supreme. One can only laugh at the idea that Palin challenged Obama to a debate earlier this year. This from a woman who surpassed expectations by not spontaneously combusting whilst losing her vice-presidential debate with Joe Biden. Obama skillfully took advantage of the Roberts decision, letting people assume it was a victory for his policies. He avoided focus on how this victory was won – by Roberts ruling that the words used in the law were extraordinarily dislocated from its substance. But whether consistent or not, the right will do a good job of ensuring everybody is aware that Obamacare is essentially an extension of government taxing and spending.
Left and right. Politicians, pundits and judges. Apart from Chief Justice Roberts, and a few lesser-known journalists, very few survive this rhetorical debacle untainted. Most simply pandered to their base, their supporters, their benefactors, their customers, the people who pay their bills, or whoever it is they think is listening when they stand alone at night, being pompous to their bedroom mirror. The love of rhetoric is breeding disdain for reason. But rhetoric is not reason. Rhetoric is not substance. And people are ultimately more moved by substance than by words (or “words”). Amidst the mouth-frothing silliness about the supposed end of the constitution, or the end of liberty, or the end of the USA, or the end of the world, one important question was overlooked. With so much (always) at stake, why will so few bother to vote? If 60% of the American population vote, that would be a surprisingly good turnout. Contrasted with all the words devoted to telling people how to vote, very few are spent explaining why so many will not vote. But I think the explanation lies with the rhetoric, and how the rhetoric lies.