You're a Good Man, Justice Roberts, and a Conservative

       Like many liberals, I have gained a new respect for Chief Justice John Roberts this week. In both Monday’s decision on the Arizona immigration law, and today’s Affordable Care Act decision, Robert’s broke with the Conservative wing of the court and sided with the liberals. Conservatives are not amused. Rush Limbaugh  and Mark Levin, of course, are going craz(ier). Half of the right-wing bloggers in the country want to impeach their former hero for disloyalty. And Glenn Beck is driving all over the country looking for an edge that he hasn’t already gone over. In general, white men in America haven’t been this upset since M*A*S*H* got cancelled.
       Strangely enough, my newfound respect for Justice Roberts comes from the long-suppressed conservative side of my split political personality. Unlike most of my liberal friends, I was genuinely ambivalent about the Constitutionality of the individual mandate. I supported (and continued to support) the idea of universal health care, but I was not convinced that the commerce clause could legitimately be extended to requiring a commercial transaction. And while I thought that the mandate was a very tax-like thing, I did not think that the government should be able to get away with calling it a tax only when it served their purposes. Like most commentators, I was fairly sure that the mandate was going to be struck down, and I was resolved to see the entire Affordable Care Act go along with it.
       And then John Roberts happened.
       I am still not sure that I agree with the core of Roberts’ decision today. The court basically ruled that if it waddles and quacks it’s a duck, and if it redistributes income to purchase services it’s a tax. I can see the point, but, on the other hand, Congress could have made this process a lot simpler if they had admitted that it was a tax to begin with and structured the legislation accordingly. However, once Roberts came to the conclusion that the mandate was essentially a tax, he could not have ruled other than he did without becoming an in-your-face judicial activist—as the Congressional power to tax is virtually unlimited by the Constitution.
       In his Federalist papers on the subject—especially #34-#36—Alexander Hamilton makes two things very clear: 1) that we cannot safely limit the power to collect taxes because we cannot accurately predict our need for revenue; and 2) that the political difficulties of raising taxes are sufficient to prevent excessive taxation, even with unlimited Constitutional authority. This second point has generally held true. People don’t like taxes, and when members of Congress forget this, they usually end up losing their jobs.
       It is precisely because tax increases are so politically difficult that the Framers felt that they could make them, Constitutionally speaking, slam dunks. This was actually pretty sneaky on their part. By granting Congress complete authority over taxation and spending, they made these issues completely political--questions to be confronted by the people who depend on the electorate for their jobs. Had they created a list of Constitutional and Unconstitutional avenues of taxation, they would have given a great deal of interpretive power to judges with lifetime appointments. As the Constitution stands, however, the courts are simply not part of the revenue-enhancing process.
        Roberts did a good job of bracketing all of the non-Constitutional questions involved with the Affordable Care Act. He did not ask “Is it a good idea?” or “Is it an effective policy?” He did not try to determine whether or not health care was a right. And while the four liberal Justices wanted to tie the mandate to the Commerce Clause, Roberts absoltuely refused to go there. He confined himself the very narrow question, “is the individual mandate a tax?”--a question with clear Constitutional implications. My favorite passage from the decision goes like this.

Our permissive reading of these powers is explained in part by a general reticence to invalidate the acts of the Nation’s elected leaders. . . . Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

          In his landmark decision today, Chief Justice Roberts exercised formidable judicial restraint. He presented the Court's role with humility, and he framed the question at issue as narrowly as it could possibly be framed. He declined to legislate from the bench or to overturn the decisions of elected officials without a clear Constitutional mandate to do so. He tied his decision entirely to an interpretation of the Constitution that he had the authority to make. And (breaking with the liberal justices) he did nothing to expand the power of the federal government.
          Until about a week ago, we had a word for judges who thought this way. We called them “conservatives.”

Why Obama Is Not, Actually, Destroying the Constitution: Thoughts on Federalist #31

“Not every intrusive law is an unconstitutionally intrusive law.”

—Bush appointee Jeffrey Sutton, writing for the the United States Court of Appeals, Sixth Circuit, in its June 29, 2011 decision to uphold the Individual Mandate clause of the Patient Protection and Affordable Care Act. 

The last few years have been a good time for whoever does press clippings for the US Constitution. Polling data suggests that the percentage of people who have heard things about the Constitution is greater today than it has ever been. People know, for example, that the Constitution was designed to prevent the Federal Government (which had become out of control under the Articles of Confederation) from encroaching on the rights of the states. They know that it was never intended to give the National Legislature the power to collect taxes. And, most important of all, they known that (last summer's misguided appellate decision aside) the Patient Protection and Affordable Care Act is patently and completely unconstitutional. Read the blogs and the letters to the editor; America is chock full of people who have heard things—often a whole bunch of things—about the Constitution.

The problem with relying on what you have heard, of course, is that whoever you heard it from probably has an interest in not telling you the whole truth. Constitutional law is actually somewhat complex; it’s a bit more involved than reading a sentence or two out of context and imagining that you know how it fits within a 200 year old legal tradition. But our political system is not friendly to complexity. We don’t want to be lectured by professors, we want to be entertained by clowns; and all clowns know that they have to keep things simple. But the process of simplifying complicated arguments often results in the loss of crucial distinctions. Tolstoy’s War and Peace contains over 500 distinct characters. The Wikipedia entry for the novel gets by with a few more than 20.   

One very important distinction that is being lost in the current political climate is the distinction between a “bad idea” and an “unconstitutional action.” The term “unconstitutional” has been thrown around on both the right and the left (but, let’s be honest, in this historical moment it is coming more from the right) like a casual greeting. Bestselling books now proudly trumpet the President’s secret “blueprint” for subverting the Constitution one cherished principle at a time. And the charge that Obama is bent on “destroying the Constitution” (here, here, here, here, and here) is made so frequently in the conservative media that it has become an article of faith for millions.

When we hear exactly what the President is doing to destroy our beloved document, however, the answers are, quite frankly, a little bit silly. Obama, we hear

·      Is appointing powerful policy advisors called “czars” without the advice and consent of the Senate (when Supreme Court Justice Antonin Scalia—nobody’s liberal activist—was asked about this at a Congressional round table, he responded, to the chagrin of the Tea Party activists present, simply that  “the President is  entitled to hire advisors”).

·      Is bent on appointing only liberal activist judges to the Supreme Court (as if the Constitution did not actually give presidents the power to appoint whomever they want to the Supreme Court, subject to Senate approval).

·      Has rammed an unpopular health care law down our throats in direct violation of the constitutional prohibitions on an overarching federal government (despite the fact that the health care law is currently working its way through the court system—like thousands of other laws have in American history—and will ultimately either be declared Constitutional and enacted, or declared Unconstitutional and rejected according to policy that the Constitution sets up for resolving precisely these kinds of issues). 

The assertion that these policies are wrong because they are unconstitutional is, BY THE TERMS OF THE CONSTITUTION ITSELF, the wrong argument. Call in radio hosts and bi-weekly columnists are simply not given the power to issue binding statements about the Constitution. Even television hosts are not given this power. In the system that Messers Beck, Levin, Blackwell, and Klukowski supposedly like, the power to determine the constitutionality and unconstitutionality of a presidential or legislative action resides in the court system—which is where all of these issues, especially health care reform—will ultimately be decided.
 

In the mean time, the people who don’t like these ideas owe it to the rest of us to give real reasons for their opposition. "X is unconstitutional" is quickly becoming, not so much an argument itself, but a way to avoid an argument--a way, that is, to avoid doing all of the things that arguers are supposed to do, like presenting evidence, establishing criteria, appealing to shared values, and persuading people to a coherent point of view. Arguing persuasively that something is a bad idea can be difficult. Reflexively calling what you don't like unconstitutional, and saying that your opponent hates America, is much easier on the mind.

Nobody understood the difference between a bad idea and an unconstitutional one better than Alexander Hamilton, who was especially eloquent on this topic in his series of Federalist Papers on taxation (30-36). Though it does not come through clearly in the recent Glenn Beck “translation” (or, more accurately, simplification) of the Federalist Papers, Hamilton felt that the Federal government should have almost unlimited power of taxation. He makes this case primarily in #30 and #31 (both of which somehow ended up on Beck’s cutting room floor). In one particularly important passage, Hamilton addresses the issue of “double taxation,” in which the federal government taxes something that the state taxes as well. Look carefully at what he says:

As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances.

Had this passage made it into the Beck translation, it might (I hope) have come out sounding something like: “It is entirely possible that the federal government may want to tax something that the state government is taxing too. And this could (or could not) be a really bad idea; but it would not be an unconstitutional one.”

However, when Mr. Beck actually does speak of “double taxation” in his book, this is what he says:

While the Founders argued in favor of the federal and state governments’ each having the power to tax, they were convinced that neither would tax the same thing at the same time. But now? Plenty of items, from gasoline to alcohol to tobacco, have federal excise taxes along with state sales taxes. In addition, of course, there’s income tax, which is often charged at the federal, state, and sometimes even local level. These concurrent taxes were never part of the Founders’ plan. (360)

This is wrong in the “that’s-clearly-not-what-he-said” sort of way. The Founders had a clearer vision, and a better plan, than Glenn Beck gives them credit for. Hamilton clearly foresaw the possibility of double taxation —and he was not at all “convinced that neither would tax the same thing at the same time.” Quite the reverse, he thought that they probably would. And his answer to the problem still applies to many, if not most of our informal Constitutional debates today: “this is a political issue, not a Constitutional one, so take your fight outside where it belongs.”

This, ultimately, gets to my biggest problem with the Beck-Levin-Coulter-Limbaugh-etc.-etc.-etc. assertion that President Obama (or anyone else) is “destroying the Constitution.” It presents the Constitution as a remarkably fragile document and the Founding Fathers as bumbling idiots who couldn’t figure out that some forms of government would sometimes try to overstep their bounds. It turns out, though, that they had it covered all along.  And actually respecting the Founding Fathers means having faith that the system that they designed will work—as it generally has worked in the past—according to its design specs.

One of the most ingenuous aspects of the Constitution is that it sets up a process for adjudicating disputes about its own meaning. That system—we call it the judiciary—is fully capable of resolving all of the current disputes about what is, and what is not, Constitutional. We should register our opinions, of course, but we also owe it to the Founders to allow their system to do its work. And while it does, the rest of us should get busy arguing about what is, and what is not, a good idea.