Constitutional Opinions

Justice Scalia’s Timely Advice

If heeded by the new Congress, it would represent a healthy change in the priorities of our national legislature.

By and 2.9.11

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U.S. Supreme Court Justice Antonin Scalia offered the members of Congress who attended his "constitutional seminar" some timely advice: read The Federalist Papers. This advice, if heeded by members of the 112th Congress, would represent a welcome change in the priorities of our national legislature. From the defeated Phil Hare, who admitted he "didn't worry about the Constitution" to then-Speaker Nancy Pelosi, who reacted in disbelief when asked whether the Constitution constrained her ambitions, the 111th Congress was conspicuous for the number of members that exhibited a blissful disregard for the Constitution they swore to support and defend.

Of all of the handiwork of the 111th Congress, no single act displayed its members' indifference to Madisonian constitutionalism more than ObamaCare. Because of the nation's fiscal crisis, the budget-busting quality of ObamaCare is, understandably, the focus of many critiques of the law. But if members of Congress heed Justice Scalia's advice and consult the writings of Publius, they will find that, irrespective of its costs, ObamaCare is an affront to the ethic of constitutionalism that Founding Fathers like James Madison embraced.

The provision mandating the purchase of private insurance, which has received the most attention because it is the focus of strong challenges in the courts, threatens to wipe away any discernible limitations on the scope of the federal government's authority to regulate commerce. As Madison famously explained in The Federalist No. 45, the "powers delegated by the proposed Constitution to the federal government are few and defined." As a congressman, Madison warned against constructions of the Constitution that rendered the government "no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." If inactivity can be characterized as commercial activity, then virtually anything is ripe for federal supervision, converting the Constitution into an "unlimited government," which is precisely what the Founding Fathers tried to prevent.

While the individual mandate affirmatively violates the Constitution, other aspects of ObamaCare conflict with the philosophy underlying it. The sheer enormity of the law undermines self-government. In The Federalist No. 62, Madison remarked that "It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood." ObamaCare checks in at a cool 2,700 pages of dense, legislative jargon; can a citizen really be expected to understand the inner workings of this colossal law?

Though 2,700 pages long, ObamaCare intentionally left a large number of critical questions unanswered, delegating vast authority to executive branch agencies. This enables the bureaucracy to issue dense, lengthy rules that spell out the thorny details of "transformational change." According to Madison, such easily mutable rules give an "unreasonable advantage…to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people." The advent of ObamaCare "waivers" has vindicated Madison's warning, for such "waivers" have been issued to politically-connected entities like the Service Employees International Union, which spent $27 million in support of Obama's presidential campaign and is adept at influencing pliable public officials. Incredibly, the same powerful groups who flexed their political muscle in favor of "transformational change" are now able to exempt themselves from its enactment. This is precisely the type of politics that American voters rejected in the 2010 midterms.

Such rank favoritism notwithstanding, allowing executive branch agencies to impose far-reaching restrictions and mandates on the American people, such as dictating the minimum "essential benefits" that Americans are forced to maintain under penalty of law, further corrodes the political accountability that is a prerequisite for liberty. In The Federalist No. 63, Madison identified the need to structure the government in a way that "a ready and proper judgment can be formed by the constituents" respecting its actions. ObamaCare delegates legislative authority so dramatically that unaccountable executive branch officials possess boundless discretion to institute policies that affect the medical care and livelihood of millions of Americans. By subcontracting important legislative decisions to bureaucracies, elected officials insulate themselves from the political responsibility that is the hallmark of a government of, by and for the people.

Though challenges to ObamaCare in the courts show promise and should be pursued, the constitutionalist critique of the law should not be confined to the judicial sphere. Judicial decisions are final but they are not infallible. James Madison understood that supine courts would not always enforce the Constitution, and explained in that, in such instances, "a remedy must be obtained from the people," through ordinary politics. The 2010 elections demonstrated that the people are intent on exercising this remedy.

Opponents of ObamaCare should continue to press the political case for repeal in a way that goes beyond mere dollars and cents. Repeal is also about preserving an ethic of constitutionalism rooted in limitations on government, political accountability, and equal justice under the law.

Let's hope that members of Congress listen to Justice Scalia. By governing in a way that is faithful to the philosophy of limited government articulated in The Federalist Papers, the 112th Congress has a unique opportunity to earn the reputation as the "Constitutional Congress" and, in the process, save our nation from the ambitions of its rulers.

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About the Author

Ron D. DeSantis is a former prosecutor and is an officer in the United States Navy reserve. He lives in Ponte Vedra Beach, Florida.

 

About the Author

Adam Paul Laxalt is an attorney and former lieutenant in the U.S. Navy, Judge Advocate General's Corps, who served on active duty from 2005 until August 2010.