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The Trojan Horse and the Golden Calf


The prevailing opinion concerning the release of the Supreme Court’s decision regarding the constitutionality of Obama’s health care reform law, the Affordable Care Act, was that the court’s upholding of the law would amount to a powerful victory for Obama. The reasoning was that the legislation is a centerpiece of Obama’s first term and striking it down would make him look ineffectual, while upholding it wouldl make him look like he’d accomplished something for his all-important legacy. This type of reasoning altogether neglects, of course, to consider whether the issues involved, in particular the issue of the individual mandate legalizing coercing people to buy private health insurance, are in anyone’s interest aside from big business.

Indeed, the case brings to mind that seminal case of United States constitutional law, Marbury v. Madison. The issue in Marbury v. Madison was a relatively minor one involving the executive’s appointment power. Thomas Jefferson, who was president at the time, had a strong interest in the court’s deciding for his position. And while the court did decide in Jefferson’s favor, pleasing Jefferson and leaving him unwilling to contest the decision, the court outmaneuvered Jefferson in a significant manner. In addition to ruling for Jefferson, the chief justice John Marshall managed to insert the court’s power of Judicial Review into their decision. This was a new power for the court. No such power to void legislation was given to the court in the constitution, it came out of chief justice John Marshall’s opinion. So, though Jefferson appeared to win the case, the result was a monumental aggrandizement of power which completely changed the balance of powers in the new republic. A similar maneuver appears to have played out in the instant case. Obama’s Affordable Care Act is a peculiar type of Trojan Horse, allowing the court to create new powers Unlike in Marbury, though, the powers aren’t for the court; but  aggrandize the powers of the business class to an unprecedented degree. And unlike Marshall, Chief Justice John Roberts won’t just make up these powers; they are already present in Obama’s law as the ‘individual mandate.’

By passing Obama’s health care law the court wins on all counts. Seen as so partisan as to be virtually illegitimate since Bush v. Gore, a decision for Obama may lead some to think that the court is actually a fair judge. While the liberals on the bench voted for the law in support of Obama, Roberts let them have their victory in order to use the powerful precedent in support of further legislation down the line – imagine a law forcing people to buy a new cell phone every year, or something of the sort. To be sure, Roberts, Alito and the other so-called conservatives hold to an extremist ideology that sees the New Deal and all ensuing legislation regulating business as unconstitutional. Passing Obama’s law will allow them to pursue their privatizing agenda with greater effectiveness. Such a thought could not have been too far from Roberts’ mind.

Before the Enclosure Acts, the market was peripheral, not central, to economic life. Basic necessities like food staples were outside of the market in a subsistence economy, and land and labor were not commodities to be bought and sold. The markets meanwhile handled mostly surpluses and luxury goods. But after the Enclosure Acts and the privatization of the commons, along with the rise of capitalism, what was formerly property held in common became privatized/commodified, and a compulsion to go to the market came into being. Alienated from their ancestral lands and their traditional means of subsistence, people had no choice but to go to and get those things required for their subsistence from the market. If they had nothing to sell, they sold their labor.

Privatization, of course, continues. And these days public education, publicly owned water supplies, and anything else one can think of is being privatized and sold. This is what Roberts, Alito, et al want – including Obama himself. The individual mandate in Obama’s health care reform law will intensify this privatization and compulsion to deal in the market as never before. So, while it might appear at first to be a big win for Obama, the real winner here is big business – and Roberts is very warm to that notion. Indeed, rather than any meaningful extension of peoples’ rights, this legislation will usher in unprecedented economic tyranny. So why wouldn’t Roberts and his ilk vote in favor of it without reservation? The only surprise here is that he was alone in his foresight.

Though it may not seem to be the case, the Supreme Court’s ruling on the Affordable Care Act and Obama’s “victory” demonstrate something all too clearly. Rather than being some sort of Moses leading anyone out of bondage and introducing a new law to the people, Obama , with his drone strikes, kill lists, and now this health care law to add to his other disappointments, more than ever resembles the golden calf.

Elliot Sperber is a writer, attorney, and contributor to He can be reached at


Elliot Sperber is a writer, attorney, and adjunct professor. He lives in New York City and can be reached at and on twitter @elliot_sperber

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