Pedde: Blame Yourself, Not the Court
By Jonathan Pedde, The Dartmouth Staff
Published on Tuesday, July 3, 2012
About a week ago, I overheard a rather distressing conversation between several students. One asked, “Do you think that Obamacare is unconstitutional?” to which another replied, “I don’t know, but I like it, so the Court should uphold it.”
Over the last several years, and especially in the weeks preceding the Supreme Court’s ruling in National Federation of Independent Businesses v. Sebelius, there have been increasingly persistent accusations that the Supreme Court is a politicized institution that is on the verge of suffering a crisis of legitimacy. But, to the extent that this is true, it is almost entirely the fault of those who are making these accusations rather than the Court itself.
Before proceeding any further, permit me to make three very basic points. First, the United States federal government is a government of enumerated powers. A law passed by Congress is constitutional only if there exists an enumerated power authorizing Congress to make that law.
Second, the question of whether a given law is a good law is entirely distinct from the question of whether that law is constitutional. It is not the job of the judiciary to pass judgment on the wisdom of a given law. Instead, the courts should — and largely do — strike down laws that are unconstitutional, even if these laws have redeeming social value, and uphold laws that are constitutional, even if there are reasonable political arguments against these laws’ existence.
Third, given the role of the judiciary, there exist political means to repeal constitutional laws and to make constitutional those that were previously unconstitutional. If there is a need to restrict political spending by corporations and labor unions, an interested coalition can try to pass a constitutional amendment authorizing this kind of law. Conversely, if you think that the Affordable Care Act is a terrible law, you can vote for congressional and presidential candidates who will repeal the law.
Unfortunately, far too many politicians and pundits ignore these three basic points. Many people seem to have adopted the view that, if a law that they personally support happens to be unconstitutional, the Court should nonetheless uphold the law in order to save others the trouble of amending the Constitution. The Court’s much-maligned ruling in Citizens United v. Federal Election Commission is a case in point. It is entirely reasonable to believe that there should be limits on financial support for political endeavors from corporations and unions. But your proper response should be to try to pass a constitutional amendment, not to condemn the Court for enforcing the First Amendment. To the extent that Citizens United has harmed the Court’s reputation, this is primarily the fault of those who, rather than trying to amend the Constitution, would rather attack the Court for striking down laws that it views as unconstitutional.
Similarly with NFIB v. Sebelius: Prior to the announcement of the Court’s ruling, many people argued that if the Court struck down the individual mandate, it would be self-evident proof that the Court’s decisions are increasingly determined by politics rather than legal reasoning. But this is nonsense. The position that the mandate is supportable by neither the commerce clause nor Congress’ taxing powers is entirely consistent with an originalist interpretation of the Constitution. Likewise, to uphold the mandate on both grounds would have been entirely consistent with a belief in a “living Constitution.” However, Chief Justice Roberts' decision to uphold the mandate on tax grounds but not based on the Commerce Clause has been held suspect by some of the legal community. Former New York Times reporter Linda Greenhouse called Roberts' tax logic a “deus ex machina,” and New York University law professor Richard Epstein described Roberts' position as “confused at its core.” Thus, it could be argued that Roberts' decision to uphold the individual mandate was the most political part of the entire case. Yet the current silence of those who were ready to scream bloody murder had the mandate been struck down is deafening.
As Will Wilkinson of The Economist put it, “By now I think we all realize that ‘judicial activism’ really means ‘a decision I don’t like’ and that ‘crisis of legitimacy’ really means ‘a series of decisions I don’t like.’” It is this all-too-common attitude, and not the Court itself, that is at the root of any crisis of legitimacy that exists today.
The original version of this article misspelled the name of the case before the Supreme Court. It is NFIB v. Sebelius, not NFIB v. Sibelius.