On Defining Moments: Essay for March 29, 2012

In our nation’s history, there have been numerous defining moments. They are times characterized by incredible amounts of courage and foresight, principle and action. The root of all defining moments for these United States of America took place on July 4, 1776, in Congress assembled, when the founders signed a declaration with the most empowering words the world had ever, and still has ever, known.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

Thirteen years later, many of these same founders developed a constitution that precisely delineated how this government was to derive those powers from the governed. They created three distinct branches of government to provide the checks and balances necessary to dampen any intemperate actions of the executive and legislative branches. They did so by applying the scrutiny of the judiciary through a laborious process that ultimately rests with the Supreme Court of the United States.

And so our country now finds itself at a defining moment in its history. We have concluded the oral argument phase regarding the Constitutionality of several provisions of the Patient Protection and Affordable Care Act. What is at stake here reaches far beyond a debate about health care or medical treatment. It is not a disagreement between the rich and poor in America. It is not about where our morality lies.
What is at stake here is a single word: Liberty. Can our government compel its citizens to do something against their will under penalty of tax? The Declaration of Independence lists no fewer than 27 grievances against the British Crown, including this one, “For imposing taxes on us without our consent.”

It is thought that the Supreme Court of the United States will announce their decision shortly before their summer break in July, almost 236 years to the day the Declaration of Independence was signed that first codified the concept of consent of the governed. It was the first time in history that the rights of the governed limited the acts of government.

Liberty is indeed at stake in this debate. Also at stake is the integrity of the Supreme Court. To the untrained ear, the passion and persuasion of the legal and Constitutional arguments among the protagonists is nothing short of breathtaking. It is a showcase of our Republic. I am certain the whole world is watching but we citizens of America, we descendents of these brave founders, must admire the process that has taken this bitter and hotly contested legislation to a point of resolution.

So what will the Supreme Court decide? I do not know with certainty. I have no crystal ball. But I do have a feeling that despite ideological and political proclivities, despite hull crushing pressure from constituencies across this country, despite the unrelenting media spotlight that will descend upon this Supreme Court, justice will prevail.

I believe the decision will surprise any who think that Presidential appointments anneal a Justice to the party of the appointing President. The line of questioning has been balanced and encouraging to me; so much so, in fact, that I do not foresee a 5-4 decision of an ideologically split court. While I have my own opinion of the outcome I am no Constitutional scholar. We leave that to these professionals, these 9 Justices of the Supreme Court of the United States, to determine. I believe they have a sense of the gravity of the moment as well. I believe they see the obvious conflict between the power of the government and the necessary consent of the governed.

Said Thomas Paine in December of 1776:

These are the times that try men’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value.

In three months we shall learn the outcome of two years of litigation, frustration and intimidation. We shall learn whether we will emerge from this chapter in our history with a renewed sense of liberty or a heightened sense of despair.

The ball is in their court: the Supreme Court. And I have faith in them.

Press on.

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