President Obama had not even signed the health-care bill into law when ten state attorneys general announced that they would challenge its constitutionality in court. Their claim, in part, is that Congress has no power to force individuals to purchase health insurance, because such a requirement is not a regulation of interstate commerce.
What could be more American than to hope that the Supreme Court might save us from the monstrosity of Obamacare? How pleasant to think that this ugly product of an ugly political process might be eliminated by a careful and cerebral appeal to the fundamental principle that the national government in this country has only limited, enumerated powers!
A happy prospect, indeed. As always, reliance on judicial power means — or seems to mean — that we are not at the mercy of political demagoguery, that the permanent principles laid down by our Founders provide limits to partisan malfeasance, and that passion and ambition are, in the end, contained by reasoned argument.
Moreover, since the Court’s constitutional precedents are many and varied, placing one’s reliance on judicial power can almost always seem realistic. True, in the decades since Republican appointees took numerical control of the Court, many of its decisions have been surprisingly left-leaning. The Burger Court, for example, brought us forced school busing and the right to abortion, while the Rehnquist Court protected the rights to burn the American flag and to engage in sodomy. Nevertheless, recently the Roberts Court has protected the right to bear arms and the right of corporations to participate in political campaigns. And, more directly to the point, not so long ago the Court handed down two opinions that attempted to define limits to the federal government’s right to regulate commerce.
So hope springs eternal. Indeed, some on the right are sufficiently sanguine about the Roberts Court that they are eager to abandon conservatives’ traditional distrust of judicial power. Using the same kind of imaginative legal arguments that leftist lawyers and judges have relied on in modern times, some thoughtful lawyers on the right propose subjecting state and local governments to increased supervision by federal judges by reading into the Constitution rights that cannot be found there. While liberal lawyers strategize about establishing a constitutional right to gay marriage, conservative lawyers plot to create a right to “medical self-defense.” The idea that constitutional argumentation can be used to achieve ambitious moral and political objectives is so attractive that Americans of all political stripes turn to the Court even when the likelihood of vindication is slim.
The chances that the new health-care law will be found to be beyond Congress’s power to regulate commerce are in fact slight. The Court’s general standard demands merely that the affected activity must, in the aggregate, have a substantial impact on interstate commerce. It is difficult to see how anyone could conclude that requiring millions of people to purchase medical insurance would not have such an impact.
There are larger reasons to think it strange to turn to the Court to protect us from Obamacare. The reason Congress is granted only limited powers by the Constitution — and why states retain those powers not enumerated — is to promote separation and competition between the two levels of government. It seems improbable in the extreme that the justices, who are (after all) important and proud components of the national government, would view with sympathy those presumptuous states’ claims to power.
When states do challenge national authority, as some did by attempting to roll back or even reverse the Court’s decisions on the right to abortion, the Court depicted their actions as anarchic threats to our constitutional system. The two instances since 1937 where the Court validated state regulatory authority by limiting the Congress’s commerce power both involved areas (regarding guns in schools and violence against women) where state policies presented no serious challenge to national policies. Perhaps the Court should perceive the proposed state statutes that seek to exempt citizens from Obama’s medical mandates as healthy resistance to federal overreaching. But the chances of this are zero.
Moreover, the constitutional principle at stake, federalism, is in many ways an affront to the judicial mindset. Judges are attracted to clear legal standards; federalism is a profoundly undefined concept. The Tenth Amendment, for instance, reserves to the states only those regulatory powers not delegated to the national government. The Court, however, has been largely unable to define the limits of those delegated powers in part because so many activities eventually affect commerce among the states. As a consequence, the scope of the commerce power is, for the most part, worked out through political struggle. This means that federalism is manifested in disagreement and political conflict. Jurists like order and decorum. Accordingly, the usual role of the Supreme Court from the beginning of our history has been to approve expansion of national authority at the expense of the states.
In the end, the constant resort to judicial power, whether by progressives or by conservatives, rests on a beguiling aspect of the function served by constitutional law in our political culture. That function begins to become apparent when we consider the main distinction by which many on the right differentiate their constitutional arguments from those used by the Left. The claim is that conservative constitutional positions are legally correct, while liberal positions are not. Surely, in this view, it is not “judicial activism” for a court to exercise power on behalf of the true meaning of the Constitution.
Even assuming that conservatives’ understandings of constitutional law are less fanciful than those of liberals, it is worth noting that leftists also believe passionately that their constitutional positions are correct. Thus, a central function of constitutional law in our society is to provide a framework in which people can both disagree and coexist.
When constitutional arguments are made in the political realm, they can serve this function tolerably well. For instance, until 2008, when the Court weighed in on the issue, Americans argued about the true meaning of the right to keep and bear arms. Everyone thought their positions were correct, but governing institutions came to many different resolutions of the issue in many different settings.
When constitutional arguments are made in the judicial realm, however, they do not serve this function well. One reason is that when the Court resolves a constitutional issue, it does so authoritatively. That means that some people’s opinion about an important moral or political question is rejected as wrong and, indeed, as being inconsistent with American values. Since this conclusion is reached at a high level of visibility, and since it must be enforced uniformly and (theoretically) permanently across the whole country, the sense of rejection and alienation on the part of the losing side is intense. This cultural damage might be acceptable if the Constitution were interpreted to resolve only a limited set of issues. But it has been interpreted to apply to almost any imaginable dispute.
A second reason that routine reliance on judicial power is destructive is that an authoritative resolution of an intense dispute about the meaning of our fundamental law requires strong justifications. But because these disputes involve a sense of certainty on both sides, the effort at justification and persuasion is largely futile and frustrating. Hence, judicial opinions in constitutional cases tend to use overheated language and make extravagant claims. To take just one of innumerable examples, the school officials who forbade students to wear armbands to protest the Vietnam War did not merely make a mistake; they were, according to the Court, creating an “enclave of totalitarianism.” The frequent use of this kind of rhetoric by a highly visible and highly respected institution increases the level of distrust, anger, and conflict in our political life.
A third reason is that when the Court resolves a constitutional issue, it does so in the professionalized language of lawyers. Over time this means that the official, authoritative answers to constitutional questions become foreign to those being governed. Therefore, rather than a warm identification with their basic charter (or, at least, a commonsensical appreciation for it), many people feel distanced from it. Indeed, they feel at the mercy of intellectual forces that they do not understand. Alienation of this kind is bad enough when it results from the edicts of Congress or the vast array of administrative agencies, but it is worse for the people to feel alienated from their country’s fundamental legal framework.
A fourth reason is that the authoritative resolution of constitutional issues by courts is naturally taken by the public to mean that some people (and some political institutions) have been deficient or even irresponsible in discharging their public obligations. This drumbeat of judicial disapproval saps popular confidence in political institutions. We seem constantly to need to be saved from serious blunders. Where politics does produce a morally attractive outcome, as with congressional action against racial segregation in public schools, the Supreme Court gets the credit. (While Brown v. Board instructed states to desegregate their schools, it gave no deadline for doing so, and significant desegregation did not occur until after the Civil Rights Act of 1964.) Where the stakes are very high but politics might proceed responsibly, as in the aborted impeachment investigation of Pres. Richard Nixon, the Court intervenes and thus saves us from ever knowing if our representatives can sometimes rise to the occasion.
In 2005, the Supreme Court determined that the government’s condemnation of a perfectly respectable private home for purposes of a sale to a private developer was for a “public use” and, therefore, constitutional. This decision was widely derided as an abdication of judicial responsibility. But in just the next two years, legislatures in 42 states reformed their laws to protect against such outrages. This kind of vigorous political action is a model for how conservatives should defend constitutional values.
– Robert F. Nagel teaches at the University of Colorado School of Law and is the author, most recently, of Unrestrained: Judicial Excess and the Mind of the American Lawyer (Transaction, 2008).