Monday, October 27, 2014

A Nation Ruled by Its People? Or By Malcontents with Friends?

“Agreement” suggests several possibilities, including a contract, shared understanding, amity. More is implied than absence of conflict. At least, in terms of contract, an agreement suggests that two minds have met, reached an understanding, and have a planned course of conduct. Volumes of law -- both statutes and judicial decisions -- exist as a testament to the value of agreements and the imperfections inherent in them.

“Constitution,” like “agreement,” suggests several possible meanings, including the makeup of individual organization, and more often, a plan of government for an organization, including private organizations like clubs and associations, and public ones like corporations and governments. Volumes of law, and of history, exist as a testament to the value of constitutions and the imperfections inherent in them.

For two and a quarter centuries, the American people have existed together in a union of states. Throughout that time, every American’s lives under the terms of two constitutions: their own state Constitution and the United States Constitution. During that period, state constitutions have been amended by the will of the people. In addition, the U.S. Constitution has been amended 27 times. Changes addressed a myriad of matters, from voting ages to taxation to presidential succession.

All these amendments, changing this scope and terms of state and federal Constitutions, reflect the exercise of popular sovereignty by electoral majorities. Among the means by which constitutions may be changed, amendment by the exercise of popular will, at least in the view of Abraham Lincoln, was the only approach consonant with a popular republican form of government. In his first inaugural address, Abraham Lincoln responded to the popular fear in southern states and that the ascendancy of Republican president would threaten the desire of the southern states to maintain their institutions, including slavery, against the popular will of the northern states. 

To get to his point, Lincoln had to speak with care about a decision of the Supreme Court, Dred Scott v. Sanford, in which the Supreme Court had held that the Congress acted unconstitutionally when it regulated the institution of slavery in federal territories that had not yet been admitted as states to the union. In Lincoln’s view, the Dred Scott Court had, essentially, usurped the role of the Congress in representing the will of the People:

Is it true, then, that any right plainly written in the Constitution has been denied? I think not. Happily, the human mind is so constituted that no party can reach to the audacity of doing this. Think, if you can, of a single instance in which a plainly written provision of the Constitution has ever been denied. If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. But such is not our case. All the vital rights of minorities and of individuals are so plainly assured to them by affirmations and negations, guaranties and prohibitions, in the Constitution that controversies never arise concerning them. But no organic law can ever be framed with a provision specifically applicable to every question which may occur in practical administration. No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions. Shall fugitives from labor be surrendered by national or by State authority? The Constitution does not expressly say. May Congress prohibit slavery in the Territories? The Constitution does not expressly say. Must Congress protect slavery in the Territories? The Constitution does not expressly say.

From questions of this class spring all our constitutional controversies, and we divide upon them into majorities and minorities. If the minority will not acquiesce, the majority must, or the Government must cease. There is no other alternative, for continuing the Government is acquiescence on one side or the other. If a minority in such case will secede rather than acquiesce, they make a precedent which in turn will divide and ruin them, for a minority of their own will secede from them whenever a majority refuses to be controlled by such minority. For instance, why may not any portion of a new confederacy a year or two hence arbitrarily secede again, precisely as portions of the present Union now claim to secede from it? All who cherish disunion sentiments are now being educated to the exact temper of doing this.

Is there such perfect identity of interests among the States to compose a new union as to produce harmony only and prevent renewed secession?
Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

Only a rugged individualist or an oligarch would argue against such republican exercises of electoral will. Nonetheless, such individualists and oligarchs have objected to these constitutions and these amendments. Merely objecting to them would mark them as malcontents but leave our republic intact. Contentment is not, however, a signal feature of a malcontent.

Over the course of our two century experiment in republican democracy, constitutional malcontents have grown to rely more and more on one sure source of recourse: judges. Consider, for example, one such case of an early malcontent.

In the waning days of the administration of Pres. John Adams, William Marbury received an appointment as a justice of the peace in the District of Columbia. As Adams administration ended the commissioning papers for Marbury were prepared, but never delivered. After Thomas Jefferson took office, and James Madison was installed as secretary of state, Marbury sought his commission papers from Madison. Madison refused to deliver the commission papers to Marbury. Without the commissioning papers Marbury did not validly hold his office as justice of the peace.

To put Marbury’s demand to Jefferson in perspective, imagine a circumstance in which, in the waning days of the George W Bush administration, a Jewish judicial nominee was confirmed by the Senate. Further, imagine that a commission embodying Bush’s nomination and the Senate’s consent was prepared. Yet, through oversight or neglect, the commission was never issued to the nominee I know oath of office administered. On inaugural day, picture newly installed Pres. Obama entering the Oval Office for the first time as president of the United States. Take in his pleasant surprise on discovering the as yet unknown transmitted commission sitting on his desk, a Post-it note attached to it stating, “Please transmit to nominee.”

Even were Obama a nice man, a decent sort, it asks too much of him that he installed in office-for life-a judicial officer selected by the previous president. The likelihood that such a nominee would meet the ideological preferences of a president of a different political party is laughably small. So, like Jefferson did, you can easily see that Obama would decline to transmit the judicial commission.

In Marbury’s case, being denied the all-but-transmitted commission proved too much. Marbury acted. He filed suit against James Madison, Thomas Jefferson’s Secretary of State. Marbury demanded that the court issue an order requiring Madison to grant the commission prepared during John Adams administration. Because Congress had authorized such suits to be filed in the Supreme Court, rather than in a Trial Court, Marbury filed suit at the Supreme Court.

The Supreme Court dismissed Marbury suit.

In its view, Congress across the boundary in the Constitution by its enactment of the Judiciary act. Congress enacted the Judiciary Act, exercising an express power set out in the Constitution:  “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” In the case of the Judiciary Act, Congress was in fact establishing and ordaining inferior courts. In addition to establishing lower tribunals, however Congress had also enacted a provision in the law allowing litigants to seek writs of mandamus at the Supreme Court.

Since its decision, Marbury v. Madison has come to stand for another principle. The Supreme Court asserted as part of its discussion in Marbury that it had supremacy over Congress and the president in deciding the meaning of the words of the United States Constitution. Such an assertion should have provoked the other branches to immediate response. The decision in Marbury, however, favored Jefferson’s administration in its treatment of Marbury, so it’s provocative dictum was without present harm. In Congress, the House of Representatives had selected Jefferson for president, so again little motivation existed for an immediate reaction there. Thus, the Supreme Court’s otherwise controversial claim -- that between it and the other branches of the federal government, it was the ultimate arbiter of the meaning of the Constitution -- went unanswered.

Now, not every suit fits the mode of the constitutional malcontent. When Acme Company sues John Doe for payment on services rendered, a court may have to interpret the contract. When a man is prosecuted for crime, the meaning of a criminal statute may have to be construed. These judicial extractions of meaning-- from statutes, from contracts, and from constitutions -- are ordinary in the course of adjudication.

The hallmark of the constitutional malcontent is the search for a new or contradictory meaning of the Constitution via judicial decision-making, rather than via amendment of the Constitution. You know the obvious case: Jane Roe, suing to prevent the State of Texas from enforcing its long-standing statutory ban on abortion, and Mary Doe, suing to prevent the State of Georgia from enforcing its modern-day reformed abortion laws.  No honest broker of American history claims that the United States Constitution literally guarantees the right to have an abortion.  Yet, at the time of Roe v. Wade, there was NO likelihood that an amendment to the US Constitution could be ratified that would legalize abortion broadly as did Harry Blackmun’s hit piece.  So, rather than engage hearts and minds of Americans in a longer term conversation about liberty, equality, women’s health, or related issues, Roe and Doe were made the frontispiece of the pro-abortion lobby’s frontal assault on the Constitution, an assault welcomed by a complicit Supreme Court already long comfortable in its assumed role as final arbiter of the Constitution’s meaning.

Still other cases, ripped from today’s headlines, mark the newest ventures into the field of the amendment-free amendment of the Constitution.  These are the cases seeking a federal constitutional home for a right to overturn State laws defining marriage, even State Constitutions defining marriage.  These most recent cases, now a string of successful appeals to federal judges to re-read the federal Constitution in a way that rejects the long-settled statutory definitions of marriage in virtually every State of the Union.  These litigants are the latest constitutional malcontents.  They cannot converse with the People and persuade hearts and minds.  But they can get themselves to a courthouse and find respite there.

What should worry the malcontent, but which they never seem to grasp, is the danger of the precedent involved in propping up this false judicial oligarchy.  Now we do NOT rule ourselves by common agreement.  We are ruled, and overruled, by the preferences of unelected micro-minorities:  appointees who enjoy lifetime employment, undiminished income, and freedom from the democratic urge to engage.  These judges DICTATE, they do not discuss; they COMMAND, they do not invite. When such a judge should turn on them, how will they save themselves?  By recourse to the People, whose laws they reject, whose judgments regarding social convention they reject?  By recourse to judges, whose autocracy is without pity?

Ultimately, if the Nation is to survive, there has to be AGREEMENT under a CONSTITUTION.  But that agreement cannot bear the weight of a Nation unless it is the voluntary agreement of minds that have shared values and common purposes.  The day when such an outcome is possible seems to be something visible only in the rear view mirror.  Still, inviting the conversation may be the way to discover whether that is so.

Sunday, October 12, 2014

National Food Shortage Highlighted by First Lady

Apparently we are in a ketchup shortage, and Michelle Obama is doing her part to make sure there are enough packets to go around in schools that receive federal school lunch subsidies. To accomplish that worthy humanitarian goal, the federal school lunch program is being interpreted to bar students from taking more than one ketchup packet with their meals.  


This burden unfairly portrays Michelle as a snooping, intermeddling miserly food grump.  Read more hereTo assist Michelle, I am asking each of my readers to spread the word of this campaign and to help out.

First, please like this post on Facebook or favorite it on Twitter.  Then, please, for the sake of the children, and the Nation, share this important project on your social media sites..

Second, scour your car seats and kitchen drawers for those left-over ketchup packets that you have been unintentionally hoarding during this humanitarian crisis. Package them, address below shown, and mail them to Michelle Obama at the White House, where she has been tirelessly administering the Ketchup for Kids Program. I would also include a handwritten note of thanks. Perhaps something like this:

Dear Michelle,

Thank you for wanting to insure that every child receives one ketchup packet daily with their lunches. Until recently, I was not even aware that ketchup shortages would result in children being denied access to such basic food staples. To support your efforts, and to increase the supply of ketchup packets so that, hopefully, one day, children can satisfy that rare and gnawing hunger for a second packet, I am sending along unopened ketchup packets that, I am embarrassed to say, I have been unintentionally hoarding. I know you will make sure that this ketchup ends up in the hands of children.

God bless you in this important work,

[insert your name here]

Mailing address for Michelle Obama:
Ketchup for the Kids
C/O Michelle Obama
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500

Tuesday, October 7, 2014

Barry, Barry, Who the Heck is Barry?

With our good friend, Lou Sharp, my wife and I spent more than a few Friday or Saturday evenings at Kate's Irish Pub in Springfield.  Those were nights when the music was live and "professional" (as opposed to open mike nights earlier in the week when the music was live and often just as good).

One staple performer, Dave Berry, would presage his transition from the family portion of his show to the bluer, adult portion with his rendition of "Alice, Who the Heck is Alice."  Some of you would recognize the song if I changed the word "Heck" to something that rhymed with "duck."

As I read the news, day after day, now some seven years into Obama's public campaigning for President and subsequent election to that office, I hear Dave Berry, leading the crowd over and over again, only in my head, an enraged crowd is yelling, Barry, Barry, Who the Fuck is Barry?

Well, let's see:

He's the President whose administrtion praised the Oklahoma mosque that sheltered and taught a black man whose moment of fame came in beheading a grandmorther whose apparent crime was not to express submission to Islam.

He's the President that leaves open the borders to those traveling from Ebola-plagued corners of Africa, resulting for the first time, in American history, in the presence of Ebola-infected patients in American communities and hospitals.

He's the President that can erect a second, interior fence to insure that he's protected from would-be invaders, but REFUSES to erect the authorized border fence to protect us from actually-are invaders.

He's the President with the erasable red crayon for drawing lines on the world stage, whose word is not a bond, not even a post-it note kind of bond that will stick unless it gets wet or a good wind comes along.

He's the President who figured out how to turn 3,000 American military casualties in Iraq into proof of a wasted venture by preferring immediate disentanglement to appease home supporters over stabilizing that Nation.

He's the President that allows Federal law enforcement agents to export guns to Mexico in a hare brained scheme allegedly to track their reimportation to the USA, but which resulted in those weapons being used to murder more than 100 people, including American federal law enforcement officials.

He's the President that sides with al-Qaeda affiliated terrorist groups ... in Libya, in Egypt, in Syria, and elsewhere.

He's the President whose rocket-running in Libya was covered up with the blood and death rattles of America's first openly gay US Ambassador and three other Americans.

He's the President whose administration called the murder of Americans aboard a stateside military base "workplace violence, not terrorism," despite the cries of Alluah Ahkbar by the murderer during his rampage.

He's the President that led the USA apology tour, bowing and scraping before tin-pot potentates and has been leftists around the world.

He's the President that promised you could keep your healthcare insurance and your doctor, then signed a law that took away your healthcare insurance and your doctor, then signed an executive order to protect some of you from immediately losing your healthcare insurance and your doctor to prevent an election annhilation of the Democratic Party in 2012 and against this year, but who will allow that healthcare law to have full effect and take away your healthcare insurance and your doctor after the November 2014 election.

He's the President without a record of accomplishments to which he could point when seeking office, having no record of private accomplishments in business, industry, science, research, education, philosophy, or any other field.

He's the President without a paper trail, setting aside one sophomoronic editorial from his college days, he is that wonderment of wonderment, the man without evidence of a college transcript, a law school transcript, an employment record.

He's the President who lied about his origins to get a scholarship for foreign students (after all, Obama is a native-born American, right? so how does he qualify for foreign student assistance?)

He is not a cipher, as in a zero.  Because, while a zero adds no positive value to anything to which it is added, Obama brings NEGATIVE value to everything he touches:  he is the hair in your soup, the odd smell of feces in your tap water, the dent on the hood of your new car, the flat tire on your way to work, the unsettling call in the middle of the night bearing terrible news, the drop in your stocks, the theft of your identity.

He is the autocrat de fe.  He is a veritable dictator whose targetting of political opponents and uncooperative military officers and private industry makes Richard Milhouse Nixon look like a playground piker.  No mere tosser of taunts, the Machiavellian Obama turns loose the dogs of the IRS and the DOJ on those who express opposition to his ideology and his policy.

He tends the American garden the way rabbits tend your garden, eating what is not his, trampling what he does not own, leaving ruin in his wake.

Under his liar's tenancy in the White House, the number of permanently despairing unemployed Americans has breached 92 millions -- including 55 million American women, the numbers of hungry Americans dependent of Supplemental Nutritional Assistance from the fedgov has past 45 million on its way to 50 million, and the number of uninsured Americans has grown, not declined, as the obamanation of Obamacare forces private employers to discontinue private health plans because what was a perfectly fine plan as far as employer and employee were concerned does not satisfy the standards set by a law that Obama had to sign into law to discover what was in the law.

Obama is the light at the end of the tunnel.  No.  Not daylight.  The train heading toward you and seventy miles an hour with a drunk in charge.

Now you understand why I have dreams of a nation rising to its feet and thundering its refrain, "Barry, Barry, who the fuck is Barry?"

Sadly for America, Barry is the President.  Barry is the man who should realize that Speaker John Boehner is "his best friend."  Of course, as Barry's friend, Boehner proves himself no FRIEND of America or its People.  The President of the United States is worse than a cancer.  A cancer will kill you.  But Barry will kill you, your family, your future, your hopes, dreams and aspirations as he works like mold, like termites, like disease, to destroy everything with which he has concourse.  All the while, Republicans in the US House of Representatives leave this disease, this whirling dervish of destruction, in power.  They have the power to stop the government until Barry submits.  They have the power to put the asterisk of impeachment next to Barry's name in the history books as a testament to THEIR rejection of his decidedly incompetent, decidedly evil, and decidedly destructive policies, yet, with Barry's best friend Boehner at the helm, THEY DO NOTHING.

I hope you're getting the rhythm of this song.   I want it pounding in your brain.  I hope that before too awful long, you'll join in and sing that refrain:

Barry, Barry, Who the Fuck is Barry.

Not in a drowsy drunken slur, but in the indignant, demanding and revolutionary tones of those who drove a wedge between the English Crown and our prized liberties.  The time is coming when what can be tolerated from that useless defecation in the White House will be surpassed.  In the absence of concise Congressional action to TERMINATE the Obama presidency, it may fall to the hands of good people, you, your families, your friends to POUND away at the tyranny until it falls to the floor.

Then, with derision, and slight remembrance, but soothed anger, we can go back to a more desultory refrain of

Barry, Barry, Who the Fuck was Barry?

Friday, September 26, 2014

Shall We, Under the Constitution, Govern Ourselves? Or, Shall We Be Ruled Under Tyranny?

 (This is Part II of a Blog evaluation of the recent federal appeals court decision holding that the tax imposed for failing to purchase health insurance did not violate the Origination Clause of the Constitution. You can read Part I, in which the decision is summarized, here.  Here, I raise old questions about the nature of our government and about the existence of a putative duty of citizens to respect decisions of a federal court that purport to interpret and apply one of the fundamental documents of the Nation, the United States Constitution.)

As previously explained, the DC Circuit has rejected a constitutional challenge to the tax imposed by the Patient Protection and Affordable Care Act.  That challenge asserted that the tax violated the Origination Clause of the Constitution because the legislation imposing it originated in the Senate, rather than the House of Representatives.  In my previous post, I concluded:  “For now, it would seem that the Origination Clause theory is in trouble.”

Perhaps it is in bad form to open a conversation with a litany of questions.  Nonetheless, we face the consequences of a lazy Congress, a tyrannical president, and an unhistorical court decision.  A few questions are, I think, a good way to frame our circumstances.

Should the Origination Clause challenge to the tax imposed for failing to purchase health insurance fail?

Should the decision of three appointed judges bind a Nation and its People to their determination of these intertwined issues?

Should the Origination Clause be understood to apply only to those bills about which the Congress entertained “raising revenue” as its animating purpose and intention? 

These questions, how we examine them, how we answer them, decide more than the constitutionality of the Act.  Rather, what we say about these questions, the principles we bring to bear on them, reveal much about how we, as a People, have progressed under the Constitution, how we have learned the lessons of the setting up of, and governance of, our Nation.

Are we bound to bow to the conclusions reached by three judges in this matter? Do a federal court’s neat machinations around the Origination Clause literally command the heartfelt obedience and respect of us all?  To that decision, as free people under this Constitution, do we owe some kind of fealty?

The answer to each of these questions might be “yes,” but I think the proper answer to each is “no.”

By saying “no,” I join Abraham Lincoln in rejecting a judicial power to set policy for the Nation, and in rejecting the notion that construction and interpretation of the Constitution is the sole province of the Judicial Branch.

In his First Inaugural Address, Lincoln concluded that the Supreme Court, if its decisions resolved questions of national policy conclusively, would supplant the People as their own governors.  As a People, have we actually come to the place that Abraham Lincoln forecast over 150 years ago?  Then, as the nation reeled from its battles over regulation or prohibition of slavery and over the legal theory of secession from the Union, the Supreme Court took a swipe at the policy-making and legislative power of the People, exercised through the Congress, when it decided Dred Scott versus Sanford

Dred Scott had lived most of his life in the service of a military doctor and his wife. In the course of that service, Scott had lived in States that recognized the right to own slaves and in States that prohibited slavery and rejected the idea of ownership of one man by another.

In Dred Scott, the Court rejected Scott’s claim that, because he had resided in Free States while under the ownership of his master, he had, in fact, become a free man.  So, in essence and in fact, the Court rejected Scott’s claim to freedom.  The Supreme Court -- ever the beacon of human rights and liberty -- concluded that Africans in America were not citizens of the United States, could not, in fact, be citizens of this Nation.  Consequentially, the Court concluded that Scott lacked standing to sue in federal court.  On the substantive question, the Court concluded that restrictions on owning and importing slaves -- imposed on federally administered territories prior to their admission to the Union as States – had been beyond the power of the Congress to impose. 

The upshot of the matter:  Scott’s case was dismissed.  More importantly, the decision resolved two important questions of constitutional construction.  As a consequence important policy questions arising from the dispute among the States over slavery were, seemingly, placed beyond the power of the People, through their Legislatures, to address.

That result, of great moment to People who would govern their own affairs, inspired Lincoln’s observation of an eminent tribunal, the Supreme Court, displacing the People in the affairs of policy making.  In his Address, faced with resolutions of secession and threats imminent to federal offices and officers within the Southern States, Lincoln would not avoid addressing these same central issues of policy purportedly put beyond republican amelioration by the Dred Scott decision.

Lincoln observed the none-too-subtle shift of the locus of power accomplished by settling upon the Court a legitimized power to impose policy by simply deciding case: 


I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court; nor do I deny that such decisions must be binding in any case, upon the parties to a suit; as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be over-ruled, and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.

As Lincoln observed, in its deciding of Dred Scott, by arrogating to itself the power to interpret the Constitution as its exclusive province, the Supreme Court denied to the Congress a power to regulate slavery in federally administered territories.  In doing so, it stripped the People of the United States of the power to be their own governors in this particular.  Thus, as he said, to that extent the People will have surrendered that power into the hands of that “eminent tribunal.” 

Lincoln, ever a gentleman, did not call out the justices of the Court as fabricators.  In fact, his address portrays the Court as having no choice in the matter but to decide the cases before it:  “Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink, to decide cases properly brought before them; and it is no fault of theirs if others seek to turn their decisions to political purposes.”   Without imputing to Honest Abe a lack of candor regarding his views on the Court’s obligations, his words suggest a mechanical, preference-free, dispensation of justice.  Lincoln’s caution in the moment has not restrained others to make more candid observations.

Mark DeWolfe Howe, attorney and historian, rendered one of the most disturbing indictments of the Supreme Court’s decision making process with which I am familiar.  Howe, lecturing at Harvard Law School, responded to the Court’s decisions on religion and the law.  The lectures, given in the early 1960’s, became the basis of his book, “The Garden and the Wilderness.” As Howe set the stage for his exploration of the Court’s Religion Clause cases, he first addressed the roles played by the justices in deciding cases. 

Of course, their principal roles were as judges of the Nation’s highest tribunal.  In reaching their decisions, Howe noted, the justices often also took on the role of historians.  In his view, however, the justices as historians often subverted history in service of intended outcomes. 

Howe began his consideration of the Religion Clause decisions by demonstrating that the Court’s choice to pick a metaphor – the wall of separation between church and state – was, in fact, the Court’s choice to pick an outcome.  More, by focusing on Jefferson’s Wall of Separation, the Court put its historical and juridical focus on the history of the struggle for religious freedom in Virginia. By doing so, the Court imported to the meaning of the Religion Clause the peculiarities of Virginia’s struggle.  Indeed, the Court vaunted the Virginia struggle for religious liberty over every other possible source of meaning for the Religion Clauses.

Howe examined the intersection of those two roles played by Supreme Court justices:

Among the stupendous powers of the Supreme Court of the United States, there are two which in logic may be independent and yet in fact are related.  The one is the power, through an articulate search for principle, to interpret history.  The other is the power, through the disposition of cases, to make it.  Phrased somewhat differently, the contrast which I have in mind is that between the scholar’s capacity to conduct a groping search for past even and initial purpose and the statesman’s talent for making the decisive choice of a rule of conduct which he believes to be suitable for the government of the future.

Howe suggests that a justice may be a scholar and a statesman of a kind, but that, in rendering decisions, the risk is real that a justice can, in fact, become a policy-maker designing our lives under the framework of law.  He continues:

It is the common-law tradition, perhaps, which leads the Court and those who study its processes to assume (or had I better say “pretend”?) that the history which is made by the Court’s decisions is merely the realization of the past which the learning of the justices and their clerks has uncovered.  The judge as statesman, purporting to be the servant of the judge as historian, often asks us to believe that the choices that he makes –the rules of law that he establishes for the nation—are the dictates of a past which his abundant and uncommitted scholarship has discovered.

From these thoughts, Howe contemplates that a reasonable reader will have sensed in his words doubt of the Court’s adequacy in interpreting our nation’s history.  If the reader has done so, Howe explains, it is likely the product of the reader realizing the intention of the writer:

I believe that in the matters at issue the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision.  By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.  Such dishonoring and degrading may not be of large moment when the history that the Court manipulates is merely “legal history”—the story, that is, of the law’s internal growth and development.  When, however, the Court endeavors to write an authoritative chapter in the intellectual history of the American people, as it does when it lays historical foundations beneath its readings of the First Amendment, then any distortion becomes a matter of consequence.

That is, indeed, a telling indictment of Supreme Court decision-making processes in the Religion Cases from the late 1940s forward.  The indictment applies, I think, with equal weight to Judith Rogers’ opinion for the DC Circuit on the Origination Clause, and her application of her construction of the Origination Clause to Matt Sissel’s challenge to the tax imposed under the individual mandate.  

There is no clause of the Constitution assigning to the Supreme Court the power or duty to construe the Constitution in a manner conclusive of constructions given to that document by the Congress or by the President. If you doubt it, read Article III of the Constitution for yourself. Today, of course, few dispute the Court’s pre-eminent authority to do so, even in the absence of an express designation of such a duty or power.  That outcome might have surprised some delegates at the Constitutional Convention of 1787, but would not have surprised Alexander Hamilton, the author of the Federalist No. 78.

Although the delegates to the Constitutional Convention agreed to conduct their sessions in secret, several attendees took notes, and a number of speeches, in addition, were rendered from written manuscripts.  Together the notes and speeches give us the opportunity to listen in as the Convention considered how to make “a more perfect Union.”

Early in the Convention, James Madison’s proposal, “The Virginia Plan,” was offered for the consideration of the delegates then present.  Among the points proposed was one to create a council that would, essentially, sit in judgment of congressional acts to determine their constitutionality and wisdom.  This text explains the point proposed:


Note that Madison expressly proposed including members of the federal judiciary on a Council to provide a pre-operative clearance for federal legislation. This proposal was rejected, not just once, but on three separate occasions.  The only provision of the Constitution that approached it was the grant of the veto power to the Executive, itself subject to override by two thirds votes of each Chamber of the Congress.

Unfortunately, for truth and for history, the delegates to the Constitutional Convention pledged themselves to secrecy regarding their proceedings.  As a consequence, no general awareness existed amongst the People and the States that this idea – a “super-legislature” that could sit in judgment of the constitutionality of the Acts of the Congress and the laws of the States – had been rejected three times in the considerations of the Convention.  Despite the rejection of the idea of a “council of revision,” delegates did argue that the structure of the Constitution supported the notion that the federal courts would have authority to decide such questions of constitutionality, and the idea of such a power was also the subject of debate in the Ratification Conventions of the States.

I would not want to leave you with the notion that this power, the judicial power to declare an act of Congress void, or to interpret the meaning of the Constitution, was novel and never considered by the Convention that framed the Constitution, or the State Conventions that ratified it.  Rather, it is sufficient to note that there is a history to this question of the power of constitutional interpretation, and to note that wiser minds than mine have disputed that it is the sole or exclusive province of the Courts to do so.

Beyond the veil of secrecy for the Convention, there was also the campaign of propaganda related to the debates in the States over ratification.  That propaganda war, principally consisting of published letters by opposing factions of Federalists and Anti-Federalists, served to educate the People as to the proposed meaning of the Constitution, its purpose, its strengths, its weaknesses and its dangers. 

One Constitutional Convention delegate, Robert Yates, took the Antifederalist position during the debates of the States on ratification.  In his eleventh essay opposing the Constitution, writing under his nom du plum “Brutus,” explained the danger of depositing the sole power of construing the Constitution in the Judicial Branch:


Arguing for the Constitution, and seeking to mollify fears that a power of judicial review would make the Judicial Branch central and powerful to the federal government, Alexander Hamilton expressed the view that, to the contrary, the Judiciary would least likely present threats to the rights and liberties of the people:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Among those wiser minds, in addition to Lincoln, and delegate Robert Yates, Jefferson is particularly notable.  His thoughts on this power of the judiciary and his conclusion of its danger to self-government he expressed in a letter to William Jarvis, written in 1820.  Jarvis had provided to Jefferson a copy of his book, “Republican.”  Having given the book a cursory examination initially, Jefferson chose to address the question of the power of judicial review in his letter of appreciation for the book.  He wrote: 




Still, while maintaining the respect of those who studied the records of the Convention, of the Ratification Conventions and of the public dialogue of the Federalist and the Anti-Federalists, one could yet hold the view that the Judicial Branch did not own the Constitution, nor possess the sole power to construe it, nor the power to declare the Acts of the Congress or of the State legislatures null and void. Ultimately, such a view notwithstanding, the Supreme Court, in a series of decisions, arrogated to itself the power to interpret the Constitution as the final arbiter of its meaning, and the powers to declare federal and state laws unconstitutional.

Professor Howe, in the lectures mentioned above, nonetheless counsels us that we are not the mere pupils of a history drafted and crafted by judges.  Instead, as to the general history of our People, of our government, and of our founding, we have judgment equal in significance to that of judges.  What remains, then, is for we, the People, to consider whether Judge Judith Rogers and her colleagues correctly construed the Origination Clause and correctly applied that Clause to the challenge to the individual mandate penalty under Obamacare.