Constitutionality of Health Reform: An Argument for Popular Constitutionalism

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It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives.  Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead.  “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”

It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last.  Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act.  The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.

That will sound peculiar to contemporary ears, which are accustomed to assigning the judiciary the last word on matters of constitutional interpretation.  But it would be familiar to the Framers of the constitution.  Their judicial philosophy was neither originalism nor progressivism but rather restraint.

The Founders assigned Congress and the President, not merely the Courts, prominent roles in constitutional interpretation.  James Madison, who knew a thing or two about original intent, said that giving the judiciary the last word in constitutional questions “was never intended, and can never be proper” in a republic.  While Congress’ capacity for constitutional debate has atrophied as the courts have increasingly assumed that sole power for themselves, the fact remains that Congress did consider constitutional objections to the Affordable Care Act and passed it over them.

Might Congress have been wrong?  Of course, but that does not mean the judiciary should substitute its judgment for theirs. Alexander Hamilton’s Federalist 78, the paramount founding document on judicial review, said the judiciary could only overrule an act of Congress in a case of “irreconcilable variance” with the Constitution.  The question, in other words, is not whether judges believe a law to be unconstitutional.  It is whether it was unreasonable for Congress to conclude otherwise.  The fact that the Court appears to be so closely divided on that question is evidence that it should probably refrain from imposing itself, even on a constitutional question.

Such an ethic of judicial restraint is a casualty of the contemporary debate between advocates of original intent, who tend to oppose the Affordable Care Act, and a living Constitution, who generally support it. The problem with the dispute between those judicial philosophies is that both sides apparently agree that judges should exercise power based on them.  The five conservative justices who raised questions about the individual mandate should also—on the grounds of their own philosophy—be raising questions about the proper extent of their own power.

To give the Court final say over constitutional questions is to assign to judges what is actually a responsibility of citizens.  The Founders saw constitutional questions as appropriate fodder for political discussion and, crucially, persuasive conversation.  Americans who disagreed with a law, including on constitutional grounds, were supposed to apply themselves to the difficult but ultimately more secure task of convincing a majority of their fellow citizens of the justice of their views.

But as a duty and skill, persuasion is the saddest casualty of the assumption, now largely unchallenged, of judicial supremacy in constitutional matters.  Democracy requires what John Adams called “the great political virtues of humility, patience, and moderation.”  The humble and patient accept losing gracefully and rise to fight again; those with moderation act, in victory, in accordance with the knowledge that a future battle is likely to place them on the other side.  By contrast, those who react to any loss in Congress by challenging the outcome’s legitimacy in the courts are the political equivalent of the child who, having lost a game, takes his or her ball and storms off the field.

Conservatives complained when progressives, having lost battles on the field of public opinion, refought them before the Warren Court.  But the challenge to the Affordable Care Act—which was filed by Republican state attorneys general—belies a willingness to use the Roberts Court for the same purpose.

Several justices on that Court are said to believe in the philosophy of original intent.  If such is their goal, the original intent that matters most in this case is judicial restraint.  Regardless of whether the justices believe the Affordable Care Act to be constitutional, it is neither proper nor healthy for republican government for them to take that decision on themselves.