Commentary by James Shott
Following
 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.
Mentioned first, 
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.
First,
 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.
The 
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 
acts.
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 
ever-changing sea.
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 
mistakes.
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.
Nothing
 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.
Chief
 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.”
The
 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 
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