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The Roberts Opinion
A “deeper meaning”?


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George Weigel

The deepest of the “deeper truths” that one might find in Chief Justice Roberts’s opinion is that America’s success in forming a more perfect union, providing for the general welfare, and ensuring the blessings of liberty to our posterity ultimately rests on the strength of American political culture. And here, the sensus plenior of the Roberts opinion intersects with the social doctrine of Pope John Paul II, especially in the 1991 encyclical Centesimus Annus. Democracy, the Polish pontiff taught, is not a machine that can run by itself. It requires a critical mass of democrats — men and women who have internalized the habits of mind and heart that make responsible self-governance possible — to make democracy work. Beneath the functions of democratic government lies the character of a people. And if the machinery has become dysfunctional, then it is time for the people to examine their conscience about the ways in which they are living their freedom: nobly or basely, selfishly or philanthropically, responsibly or dependently?

The crisis of 21st-century European democracy — the dysfunctionality of legislatures, bureaucracies, and public services; the demise of any notion of the common good; the inability to take difficult decisions; the consequent rule by technocratic elites under a thin democratic veneer — is on full display these days in the Italy I left just as the Court was handing down the Obamacare decision. And of course that crisis has a lot to do with the fiscal impossibilities of the kind of social-welfare state that Obamacare seeks to replicate. But in the final analysis, Europe’s democracy deficit is the result of a democratic culture deficit: An overbearing social-welfare state erodes essential democratic habits of personal and political responsibility and typically does so in the name of decency and harmony, neither of which it fosters. 

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Both the text and the sensus plenior of the majority opinion in National Federation of Independent Business v. Sebelius raise these questions of democratic culture, democratic character, and democratic responsibility in a challenging and unavoidable way. Chief Justice Roberts does not, it seems, wish the Court to serve any longer as a kind of judicial nanny who cleans up messes created by refractory children. “Members of this Court are vested with the authority to interpret the law,” he writes. “We possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” And in case both the Congress and the citizenry missed that point, it recurs at the very end of the majority opinion: “The Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.”

There has been a tacit sense, these past few years, that the choice before the American people in November 2012 is a choice between the path taken by a dying Europe and a different path to 21st-century societies of freedom and justice. That tacit sense of what is at stake on November 6, in terms of both the presidential and the congressional contests, is made explicit by the sensus plenior of the Roberts opinion. My constitutional and legal betters convince me that the chief justice may well have gotten it wrong on the constitutionality of the individual mandate. But he seems to have gotten many of the larger questions right. In doing so, he has made it unmistakably clear that if the American people think that Obamacare — its vast expansion of governmental power, its threat to the integrity of the healing professions, the manifest dangers it poses to religious freedom, liberty, and the right to life — is bad public policy, they have it in their power to do something about it, as mature citizens of a mature democracy.

And behind the power to do so lies the responsibility to do so.

— George Weigel is Distinguished Senior Fellow of Washington’s Ethics and Public Policy Center, where he holds the William E. Simon Chair in Catholic Studies.



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