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?
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,
In Dred Scott, the Court rejected Scott’s claim that, because he had resided in
That result, of great moment to People who would govern their own affairs, inspired
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.
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
Among the stupendous powers of the Supreme Court of the
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.
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.
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
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:
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.
“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is ‘[a good judge expands his power],’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.