The Supreme Court and the Law


After the Supreme Court’s ruling on ObamaCare, it’s impossible to resist commenting on the role of the Court in American law.  Essentially the ruling is another battle in the war for supremacy between the federal government and state governments.  The federal government won this one.  It’s won most of them.

This war has been going on since the American Revolution.  The federal goernment’s first victory was the creation of the Constitution itself in 1789.  Compared to the Articles of Confederation which preceded it, the Constitution gives the federal government substantially increased powers over the states.

The extent of federal power over state power is frequently an issue in lawsuits filed around the country.  When the outcome is important, the case works its way up the judicial ladder until it gets to the Supreme Court.  The Court looks to the Constitution to decide the winner, and the Court’s interpretation of the Constitution becomes the law of the land, trumping state law.

In theory, the Supreme Court follows the law the way lesser courts do.  It is supposedly bound by judicial precedent and adheres to the Constitution.  In practice the Supreme Court often invents new law when it considers politically volitile cases, altering the meaning of the words of the Constitution to correspond with what it considers prevailing ideas of fairness and justice.  The Court decided that the Constitution outlawed school segregation by relying partly on the work of a Swedish sociologist.

Those who object to this exercise of discretion should bear in mind what might happen if the Court failed to keep up with the times.  In Dred Scott v. Sandford in 1857, the Court used a backward looking interpretation of the Constitution to preserve slavery.  Champions of states rights were jubiliant.  However, the Civil War followed, as well as an amendment to the Constitution explicitly abolishing slavery.

In the 1930’s, the Court again used a backward looking interpretation of the Constitution to strike down several New Deal laws expanding federal power over interstate commerce.  President Roosevelt was furious, and gave the Justices a tongue lashing during his inaugural address.  He also launched a campaign to pack the Court with additional members favorably disposed to his agenda.  This time the Court reversed course to avoid a poitical crisis, and federal power over the economy skyrocketed.

ObamaCare again involves expanding federal power at the expense of state power.  It is viewed by its proponents as the missing capstone of the New Deal.  Those who wrote and voted for it assumed the Court would use a expansive interpretation of the commerce clause to uphold it.  They were wrong, but the Court did uphold the centerpiece of ObamaCare under the federal government’s overwhelming Consitutional power to tax.

Perhaps Justice Roberts remembered the tongue lashing the current President gave the Justices during his last State of the Union address and thought better of provoking another court packing plan.  Perhaps he took to heart the old legal maxim that the law respects form less than substance.  Sometimes a penalty does look an awful lot like a tax.  He at least threw a bone or two to ObamaCare’s opponents.

In any event, federal power is once again expanded at the expense of the power of the states.  Whether this is good or bad depends upon your fortune telling ability.  If you see succesful universal health care in the future, it’s good.  If instead you see socialism bankrupting the country, it’s bad.  If you value freedom, you should at least be aware of the trend line, and thinking about the prospect of having the federal government as your constant companion 24/7.

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Stan Prowse

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