(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:
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.
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:
“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.
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.
