Commentary by James Shott
the American Revolution when the new nation realized it needed a new
controlling document, it replaced the Articles of Confederation with the
U.S. Constitution, under which the states had significant independence
from the federal government. The new government had a brilliant and
unique design that included three co-equal branches, each with its own
specific duties, limited authority and a system of checks and balances
so that no one branch could become dictatorial.
the Legislative Branch is the rule-maker, the single branch authorized
to make laws. Next, the Executive Branch is charged with administering
and enforcing the laws that Congress passes; and the Judicial Branch was
to be the referee that made sure that the actions of the Legislative
and Executive Branches comported with the dictates of the Constitution,
as Alexander Hamilton said, to determine whether laws passed by the
legislature were consistent with the fundamental and superior law of the
Constitution. And Chief Justice John Marshall, in weighing the validity
of a provision of the Judiciary Act of 1789, declared “It is
emphatically the province and duty of the judicial department to say
what the law is.”
Today we see that the Judiciary has become
politicized, putting Constitutional concerns on the back burner, as
demonstrated by two decisions by the U.S. Supreme Court last week.
the Court turned plain language and constitutional law on its head, for
the second time, to deny challenges to the Affordable Care Act (ACA).
And then it redefined what marriage has been for centuries.
purpose here is not to argue against same-sex marriage or against
whatever few good things may have resulted from the ACA, but to argue
for proper judicial behavior in regard to interpreting Congressional
Contrary to the popular notion that the Constitution is a
“living document,” the meaning of which changes in response to the
prevailing winds of popular societal notions, the Constitution set forth
principles envisioned by the Framers as valid for the ages, and which
ought to be interpreted as such. Otherwise, what means one thing in 1795
could mean something totally opposite in 1895, and then completely
different from either meaning in 1995; the law being blown about on an
In the first case last week, Chief Justice
John Roberts, voting with the majority, opined: “The Affordable Care
Act’s requirement that certain individuals pay a financial penalty for
not obtaining health insurance may reasonably be characterized as a
tax.” Had he not redefined a “penalty” as a “tax,” the ACA would have
overstepped its power in regulating interstate commerce. Last week, the
Chief Justice again voted to correct flaws in the law by deciding that
words don’t really mean what we thought they meant, saving the law’s
constitutionality for a second time.
In his scathing dissent of
that most recent ruling, Justice Antonin Scalia wrote: “The Court holds
that when the Patient Protection and Affordable Care Act says ‘Exchange
established by the State’ it [actually] means ‘Exchange established by
the State or the Federal Government.’ That is of course quite absurd,
and the Court’s 21 pages of explanation make it no less so.” “Words no
longer have meaning,’” he wrote.
Further, the Constitution does
not provide for the Supreme Court to correct errors in Congressional
acts so that they pass constitutional muster. Congress must fix its own
Chief Justice Roberts is thought to have been more
concerned with trying to protect the Court’s reputation by not
overturning a piece of popular legislation, rather than observing his
duty to uphold constitutional law.
And last week the Court also
voted to redefine what marriage is, with Justice Roberts returning to
proper judicial conservatism, voting with the minority this time.
in the Constitution requires or allows the Supreme Court to redefine
marriage. Marriage is a social/cultural construction that has stabilized
the family as a bulwark social institution for thousands of years. The
court imposed its judgment about a policy matter that should be decided
by the American people through their elected state representatives, as
provided for by the Tenth Amendment to the Constitution. The definition
of marriage had already been broadened by 34 states, which is proper. If
some states decide not to change that definition, so be it.
Justice Roberts, who twice abandoned constitutional requirements in
finding the ACA to be legal, noted the following in dissent about the
same-sex marriage ruling: “If you are among the many Americans—of
whatever sexual orientation—who favor expanding same-sex marriage, by
all means celebrate today’s decision. Celebrate the achievement of a
desired goal. Celebrate the opportunity for a new expression of
commitment to a partner. Celebrate the availability of new benefits. But
do not celebrate the Constitution. It had nothing to do with it.”
Chief Justice properly noted the absence of constitutional authority in
the same-sex marriage case, but somehow did not understand that the
separation of powers prevents the Court from repairing the work of the
Congress, which behaved horribly in creating the Affordable Care Act.
If the people can no longer rely on the Supreme Court to objectively evaluate acts of Congress and the Executive, we are doomed.
Cross-posted from Observations