Madison, the Federalist, and Chief Justice Roberts

View 630 Friday, June 29, 2012

Madison and Chief Justice Roberts

The uproar continues over the strange ruling by Chief Justice Roberts that (1) the Obama Care Act cannot be sustained as Constitutional under the commerce clause, and (2) it remains constitutional because it doesn’t matter what Congress says it is imposing, it’s a tax and if it’s a tax it’s Constitutional, and (3) it is the duty of the SCOTUS to implement the will of Congress when that is possible. IF we call it a tax we can uphold the act. He adds, obiter dicta, that it is not the duty of the Supreme Court to protect the people from the consequences of their political choices.

He doesn’t really believe that latter, nor do any of us; but it is still very clear. The government derives its just powers from the consent of the governed, the Constitution provides the mechanisms by which the people show their will and consent, and the Court may or may not be wiser than the political branches of the government, but the Court is, in the final analysis, subservient to the political branches. It can hold out only so long, and the Court is at the ends of its powers.

Roberts has said, and he certainly has evidence to support the view, that the trend in the United States has been in the direction of increased government control over individual activities. I do not think he likes that. This direction is away from the traditional view of federal/state relations, and certainly not that of either the Framers or of those who adopted the Civil War Amendments and the reconstitution of these United States after the end of Reconstruction. The political commitments to the concept of federal republic were made then, and until recently pretty well prevailed; but we are now on a course toward nationalization of many issues, of which health care is a primary example. The Court can delay, but it cannot prevent the implementation of a new national consensus at odds with what the Court is supposed to enforce. The Court can stand in the doorway only so long. We now have a clear case in which the will of Congress and the President are in conflict with what a narrow majority of the Court believes. A very narrow majority.

This leads to a Constitutional crisis.

There was a period in US history somewhat similar to this. The issue in those days was slavery. The trend in the United States was against the South’s peculiar institution, but the plain language of the Constitution reflected a political compromise — one of several political compromises which made the Union possible – that made slavery legal. The trend was against slavery, and clearly over time the institution was doomed; either the Constitution would be amended, or one or another bloc of states would secede. The issue was stark, and the arguments were largely moral on the anti-slavery side, and pragmatic on the slaver side. Keeping the Union together was the business of the political branches, and people as diverse as John Quincy Adams, Henry Clay, Daniel Webster, and many others worked out the Missouri Compromise, and later the Compromise of 1850 with the goal of preserving the Union while limiting the extent of slavery.

This was a delicate matter, and there was much at stake. There were more complexities than most understood. There were southerners who hated slavery but were terrified of the consequences of liberation. There were northerners who did not want equal rights for blacks – some were involved in the founding of Liberia (capital, Monrovia), a new nation in Africa to which freed slaves could be exported.

And there was Chief Justice Taney, who ruled that the compromises were all null. Taney ruled that slaves and descendants of slavery could not become citizens. The political compromises were over, and would not be renewed.

Turn now to Madison, who told us in the Federalist Papers that the Constitution entrusted the liberties of the people to the whole of the population. Hamilton in another of the Papers pointed out the weakness of the courts, and that the political departments would always prevail. These spokesmen for the Constitution made it clear that over time the will of the people – whatever that means – would prevail, and no combination of Constitutional forces could prevent that. The purpose of the Constitution was openly stated more than once by the Framers to be the suppression of what is today known as plebiscitary democracy. The view of the Framers on this subject is best expressed by the often quoted dictum “There never was a democracy that did not commit suicide.”

Chief Justice Roberts has in effect said that the health care measure is somehow fundamental to these United States. It needs to be decided, and it cannot be decided by the Courts. It will also not be decided by deception: if it is going to be imposed let it be imposed by Congress and let it be seen that it is not a matter of ‘commerce’ at all. It is an imposition of will by the political authorities and it is imposed as a tax. If you do not care for it, you have the power to repeal it.

Roberts did not address, probably on purpose, the technical matter of the origin of the Obama Health Care Act. Did it originate in the House or the Senate? For if in the Senate, it is not constitutional on its face, since it is imposed as a tax, and revenue measure must originate there. But Roberts’ point is that the Court is utterly divided. The law is clearly necessary and proper according to four members of the Court. It is clearly fatally flawed according to four other members of the Court. The Constitution did not contemplate that one man should decide on the political future of the United States, and what course it ought to take in future. Ruling on a narrow technical detail would merely delay the crisis.

It is time, the Chief Justice said, for the will of the people to be expressed through the political departments. You should not try to make the Supreme Court the final arbitrator of such political matters. It has not the wisdom for that.

This election will now be held largely on the issue of Obama Care. If the President wins this will be seen as a vindication of that act and of the philosophy behind it. If the President fails of election the Act will be repealed, and there is an opportunity for the United States to turn back and forsake its former ways.

Now it is up to us. Mr. Roberts has said he cannot protect you from the consequences of your actions, and he has done so at a time and in a way that makes the question stark and clear. Whatever his intentions, this is what he has done, and I for one thank him for it.