The law! It is a thing too serious to entrust to lawyers. (With apologies to Georges Clemenceau speaking of war and generals)
Does Chief Justice Roberts’ flipping on the Obamacare ruling show that there is a very thin line between the constitutional and the unconstitutional? Or does it reveal the myopic bankruptcy of contemporary jurisprudence, so sophisticated and clever that it sees only trees, not the forest.
There is evidence for a convergence of both opinions. We recall Sam Dash of Watergate fame bragging that he could criminalize a ham sandwich, depending on the state of his stomach. Lawyers like John Edwards and Jose Baez could then bamboozle juries confused by legalism. So Justice Roberts could rule on whichever side of the ObamaCare case he wished. That clever attorneys and judges can pick and choose which side of a legal issue to come down on is evidence that the dividing line can be made so thin that decisions that are arbitrary or, worse, designed to transform America, are not only possible, but increasingly inevitable. This is because jurists, having lost the intellectual and moral compass their predecessors possessed, must increasingly rely on inordinate legalism in order to help justify an opinion in which they themselves can have little confidence. Without this compass the simple becomes complex and the complex a transcendental mystery.
We are not attacking the due deference courts should pay to even bad legislative decisions. But we find it astonishing that Justice Roberts was unable to take a forest-wide view of Obamacare and immediately see that it far exceeds the federal government’s limited and enumerated powers. This is not difficult. Legal reasoning should follow this kind of intuition – the very definition of wisdom, – not determine it. If the reports are true that Roberts wilted in the face of gangster, Chicago-style threats from Obama, or that his primary concern was the reputation of the Supreme Court itself, then the vaunted independence and probity of the third branch of government have been badly tarnished.
We are in a period of judicial decadence.
We seem to have a system with solidly entrenched liberals and radicals incessantly seeking the erosion of constitutional principle, ignoring stare decisis when it suits them, and trampling the limits of government power when it is the “right thing to do.” Radicals such as Justice Ginsberg will not suffer a scrap of paper to slow down their rush to transform our country in their image. She notoriously recommended to the Egyptians that they look at the South African Constitution for inspiration, not the inferior U.S. one. Our wishy-washy conservatives in name only haven’t got an answer for these assaults. Lost in legalism, hemmed in by a desire not to damage collegiality, and trapped by respect for often unwise precedent created by the confused or the radical, they temporize, compromise, and legalize, having forgotten that the sole legitimacy of the Constitution and hence of our legal system itself derives from the people.
One last point. It is often claimed that the Constitution is what the courts say it is. This is of course completely wrong and akin to the belief that glosses and commentary on Scripture and Scripture itself have equal status. President Bush made a huge mistake with the McCain-Feingold legislation – an egregious example of the unconstitutional violation of free speech. It was in his view unconstitutional, he said, but signed the legislation anyway and averred that the Supreme Court, the true and only arbiter, will decide. But he had sworn to uphold the Constitution and in signing the act into law violated his oath of office. It is not news that courts make mistakes. But if the Constitution means what courts say it does, then what it means changes back and forth, an absurd conclusion. The Constitution quite simply means what it says. And it says that we are to have a government of law, not of judges. That a contemporary Supreme Court could have ruled the ObamaCare or the McCain-Feingold monstrosities constitutional is a telling commentary on contemporary jurisprudence. That legislatures pass and governors and presidents sign legislation they believe is unconstitutional is even more so.
We recommend the Heritage Guide to the Constitution, now available freely on line.
Stay tuned for more posts on the subject of the modest judicial reforms on the Missouri ballot in August and the deficit of conservative leadership.