"It's constitutional, bitches." That was the considered legal judgement of one Patrick Gaspard, executive director of the Democratic National Committee and former Obama aide, when the Supreme Court handed down its health care decision last week. (Cleaned up for capitalization and punctuation, but not for language.)
Sen. Rand Paul (R-KY) took a different view. In response to National Federation of Independent Business v. Sebelius he declared, "just because a couple people on the Supreme Court declare something to be ‘constitutional’ does not make it so."
"Make no mistake: Obamacare is not constitutional," the senator wrote in a post-ruling column. "As a consequence of the Court’s ruling, Americans, whether they want it or not, will be compelled to purchase a product -- health insurance -- or pay a penalty." (Note that Paul did not call it a "tax" like Chief Justice John Roberts.)
Even some conservatives find this a radical view. One complained to this author that Senator Paul had overstepped his bounds, because surely it is the job of the Supreme Court to decide what is constitutional or not.
That has indeed been the role of the courts in our system since at least Marbury v. Madison (though perhaps this should dim conservative enthusiasm analogies between Roberts and John Marshall). The Supreme Court's decision to uphold the Affordable Care Act is as binding as any reversal would have been.
Accepting the legitimacy of the Court's decisions, however, does not require us to believe that the Constitution means whatever five or more justices say it means. Such a belief leads not to the rule of law, but the rule of men -- unelected men (and women) with lifetime appointments, at that.
Consider: there is increasing speculation that Roberts flipped at the last minute. He may have initially sided with the conservative dissenters, which would have instead made them part of a 5-4 majority. Had Roberts done so, would the Constitution suddenly have had a completely different meaning?
Justice Anthony Kennedy engaged in a similar late change of heart on Casey v. Planned Parenthood in 1992. He had initially been inclined to overturn Roe v. Wade. Instead he was the key vote to reaffirm its essence. Did the Constitution change with Kennedy?
Roe has stood for almost forty years, yet millions of Americans reject its conclusion. Numerous pro-choice legal scholars who agree with the ruling on policy grounds consider it shoddy constitutional law. On the other side of the political spectrum, liberals clamor for the reversal of Citizens United, which was decided by the same margin as the Obamacare ruling.
The Supreme Court has even overruled itself. Whatever the merits of the particular decisions, did the Constitution change between Plessy v. Ferguson and Brown v. Board of Education? Or between Bowers v. Hardwick and Lawrence v. Texas, which are less than twenty years apart?
This is not simply an academic exercise. Members of all three branches of the federal government swear an oath to uphold and defend the Constitution. But the executive and legislative branches have increasingly abdicated their duties to the judiciary. This is a major contributor to the erosion of constitutionally limited government.
Two examples, one implicating each party, stand out. In 2002, President George W. Bush expressed "serious constitutional concerns" about the McCain-Feingold campaign finance reform law but he signed it anyway. Bush maintained that provisions violated the First Amendment from the time he started running the White House through the presidential signing statement he issued while making McCain-Feingold law of the land.
Seven years later, House Speaker Nancy Pelosi faced constitutional questions about the sweeping health care reform legislation being considered by her chamber. She answered with a question of her own: "Are you serious?" She later said they would have to pass the bill to find out what was in it.
In each case, the courts ultimately had their say on the legislation. But shouldn't Congress and the president have considered the constitutional questions beforehand? The judiciary is a fickle master. There is no guarantee how judges will rule.
Moreover, the idea that the Constitution has no objective meaning gives those judges too much power. This is especially true now that the composition of the courts seems to matter more in many areas than even precedent. Nearly half the justices pay scarcely any attention to what the people thought they were ratifying when they delegated powers to the federal government. So why elevate the Supreme Court to a nine-member policymaking board?
In short, if the Constitution has no meaning apart from what the judges say it means, we have no written Constitution.
Not even the highest court in the land was ever intended to be the sole arbiter of the Constitution, nor the people's only remedy for federal disobedience.