What do history's most notorious despots have in common with many of the flag-waving, patriotic politicians of our day? Both groups rise to power through the exploitation of fear, which has become a societal plague. There have been widespread casualties. We need an antidote. Feardom offers its readers a much-needed immunization.
The following is an op-ed I had published at The Daily Caller today.
Oral arguments over the constitutionality of the Patient Protection and Affordable Care Act will wrap up Wednesday. The Supreme Court is expected to issue its ruling in June. In the meantime, conservatives, constitutionalists and libertarians will anxiously await the Supreme Court’s decision, hoping that the justices find the mandate unconstitutional. They should be hoping for the opposite.
To be clear, the mandate is absolutely unconstitutional. The commerce clause was never intended to allow the federal government to micromanage every aspect of commerce (it was intended to allow Congress to “make regular” commerce between the states by prohibiting tariff wars between them), and the power to tax does not carry with it the power to compel a purchase that otherwise would not have occurred.
Constitutionally minded individuals generally agree with that argument, and therefore want the Supreme Court to rule against the mandate. This is understandable, and a nearly universal opinion amongst this group. But in the long run, the goal of upholding the Constitution and promoting conservatism or libertarianism would actually be better served by the court declaring that the mandate is constitutional.
Too many Americans today wrongly believe that the U.S. Supreme Court is the sole and final arbiter of what is or is not constitutional. Questions of a law’s constitutionality thus become held hostage to the opinions and preferences of a small, elite group of lawyers dressed in black robes who are expected to keep the rest of the federal government in check — as if in a battle between the states and the federal government, a branch of that very federal government would be completely free of any conflict of interest.
James Madison, the father of the Constitution, held an opposing view. Writing in his Report of 1800 regarding the Virginia Resolutions passed two years prior, he explained that even the Supreme Court’s power must be checked by the states:
The  resolution supposed that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution [the states], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
In other words, Madison saw the states (being parties to the constitutional compact) as having the authority and ability to determine a law’s constitutionality and take appropriate action based upon whatever decision they make. While the Supreme Court could hopefully be of help in checking Congress and enforcing the terms of the Constitution, Madison knew that it could not be relied upon to perform this task in every case.
Numerous other statesmen from the founding era concurred with this view, recognizing that the Supreme Court would not necessarily be comprised of infallible constitutional experts, and that the judges themselves might be the instruments of tyranny in upholding federal powers that were not authorized by the Constitution. They therefore advocated, in unison with Madison, a state-based remedy.
In an 1820 letter, for example, Thomas Jefferson rebuffed the notion that the Supreme Court’s judges should be the “ultimate arbiters of all constitutional questions.” He wrote that it is “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.”
If the court upholds the constitutionality of the individual mandate in June, conservatives and libertarians will loudly and justifiably protest the result. This anger, however, will lead many of them to explore alternatives in pursuit of upholding the Constitution and fighting the federal government. In that endeavor, they might soon learn that there are other effective ways to challenge the federal government’s encroachment upon the powers of the people.
This is not a radical or untested suggestion. Indeed, it is one which has been implemented quite often over the years and in different states. Two dozen states objected to the REAL ID Act of 2005, uniting to oppose the federal government’s unfunded mandate and unconstitutional intrusion into people’s privacy. As a result, the federal government backed off. Numerous states reject the federal prohibition of marijuana and allow their citizens to purchase and ingest marijuana for medicinal purposes. Some states have also opposed the federal government’s commerce power regarding the regulation of food, guns and health care.
Indeed, one of the reasons the Supreme Court ended up entertaining the challenge to the individual mandate is that the Utah Legislature passed a bill two weeks before Obamacare was enacted exempting the state from its implementation. Utah Governor Gary Herbert signed that bill into law a day before President Obama signed the federal bill, which gave the state standing in federal court to challenge its constitutionality — standing extended to the 25 other states also in opposition.
Hoping that a few lawyers-turned-judges will uphold the Constitution is an exercise in futility and misplaced priorities. While it does occur from time to time, the Supreme Court tends to enable the federal government’s usurpation of powers. A ruling in favor of the individual mandate would help spark a strong resurgence of interposition and nullification by the states, which are much better equipped to provide a check against the federal government’s unconstitutional actions.
Spencer Roane, a Virginia judge who would have been appointed chief justice of the Supreme Court by Thomas Jefferson had John Adams not chosen John Marshall in the final hours of his presidency, once observed that “the Supreme Court may be a perfectly impartial tribunal to decide between two states, but cannot be considered in that point of view when the contest lies between the United States and one of its members.”
He was right. The individuals and states challenging the constitutionality of any law, including the Patient Protection and Affordable Care Act, should consider this implicit conflict of interest and encourage the states to fulfill the role of constitutional arbiters that many of the nation’s founders envisioned them fulfilling.
Jefferson once argued that government officials should be bound down from mischief by the chains of the Constitution. Some believe that a few judges, as part of the federal government, can adequately bind the legislators and bureaucrats within that same government. This is horribly misguided: questions of constitutionality should ultimately be decided by the many, not the few.