Bootstrapping Authority

Editor’s Note: A version of this article appeared at The Roots of Liberty March 2017.

Government regulates our lives in more ways than you and I could manage to count, no matter how much time we are given, nor how many pints of ale we imbibe. In some cases, such regulation is explicitly authorized by the Constitution (see: Enumerated Powers). In some cases, authority has been taken under expansive interpretations of those enumerated powers, or ‘acquired’ via Supreme Court deference or abetment (see: Wickard v Filburn and other egregious Court rulings).

And, in some cases, the government has done things that, it argues, give it the authority to do those things.

Consider, as an illustrative example, the concept of government-provided health care.

Socialized medicine advocates argue their case from angles both moral and practical. Their moral case, that civilized societies take care of their weak and needy, suffers from two major flaws: it conflates “society,” i.e. you and me and that which we do voluntarily, with “government;” and it ignores the immorality of forcibly taking from some to give to others. When faced with these challenges, they often change tracks, hopping to a practical case: that society is going to pay for the health care of the uninsured anyway, so “we” are better off if government is managing everything from the outset.

The last point holds no water – “we” have been paying for the uninsureds’ health care all along, and when government decided to try and make the problem better via ObamaCare, costs skyrocketed. But, set that aside for a moment and consider the (il)logic of the practical position.

Government decided to compel hospitals to treat those who don’t have insurance. It thus “socialized” the medical care of the uninsured. Does that action provide a philosophical foundation for further socializing medical care? Does the fallout, financial or otherwise, of compelled behavior bestow upon government the right to regulate it? Does the financial burden the government assumed and imposed now give it the right to forcibly take that money from taxpayers?

Take it a step further, from money to behavior. If I decide to pay for your health insurance, even if you don’t want me to and even if you don’t avail yourself of that which I pay for, does that grant me power to tell you what to eat, to force you to exercise, to quit smoking or drinking or skydiving or working as a lumberjack? Certainly not. You could simply tell me to sod off. But, what if I have the power of government behind me? What if I don’t give you a choice in the matter? What if I say “since I’m paying, if you don’t do what I say, I’m going to fine or jail you?”

Isn’t this twisted and perverse?

Unfortunately, this is exactly what government does in many ways. It forcibly interjects itself into our lives, then claims that, because it’s involved, it gets to impose rules on us.

This goes well beyond health insurance, of course. Consider marriage. It used to be that government had no involvement in the marriage contract. But, somewhere along the line, it started tying tax and other rules to marriage, and thus granted itself the authority to decide who is and who isn’t married. Thus, polygamy was outlawed, thus, there were anti-miscegenation laws, and thus, until recently, gay marriage was outlawed.

The government does have the right to determine the applicability requirements for the tax and other benefits it dispenses (the validity of this disparate treatment under the law is a deeper problem for another day), but its offering of those tax and other benefits does not grant it ownership of the word “marriage” to the degree where it can prohibit people from entering into marriage contracts it doesn’t approve of. Yet, government does impose that prohibition. People who want to enter into a marriage arrangement that the government does not approve are breaking the law. Other examples of government “bootstrapping authority” abound.

The term “bootstrapping,” most commonly used in the computer world, stems from an old quip about “lifting one’s self up by one’s bootstraps.” It’s a physical impossibility, of course, just as trying to pick up a bucket you’re standing in is impossible. But, that’s in essence what government does when it claims authority to regulate that which it has compelled. There is a document that grants government specific powers. It’s called the Constitution, and it is the basis for all that government legitimately does. That which government does which is not in that document has no justifiable basis, moral, practical, or otherwise, and government cannot give itself the power to give itself authority.

Supreme Court Justice Anthony Kennedy asked, during oral arguments for Obamacare, “

Can you create commerce in order to regulate it?

The answer should be “of course not,” and Kennedy properly voted “no” in that landmark case. Unfortunately, 5 justices decided, through various contortions (including Justice Roberts’ infamous “it’s a tax” bit), that, yes, the government could grant itself the authority to mandate and regulate something merely because it wanted to. If that doesn’t scare you, you’re not paying attention.