“Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” President Barack Obama
The role and function of the Constitution in the American system of government is badly misunderstood. We don’t teach civics any more, and people graduate from high school with no understanding of how our system of government actually is supposed to work. That lack of understanding is bad enough when we’re talking about the public in general. It is appalling when we are talking about the President of the United States who used to be a professor of constitutional law. Yet that is what we’ve got. Or at least we’ve got a President who is willing to play to the general public misunderstanding of the role and function of the U.S. Constitution for political purposes. We see that circumstance in the statement quoted above that President Obama has made in connection with the case currently before the U. S. Supreme Court concerning the constitutionality of the reform of the health insurance system that Obama got through Congress and signed into law.
President Obama, rightly or wrongly, considers that health care reform law to be the major accomplishment, or at least one of the major accomplishments, of his Administration. That reform has been attacked on the grounds that it is unconstitutional. Among the arguments made against the law’s constitutionality is the claim that the federal government exceeded its Constitutional power when it enacted the insurance mandate portion of the law, the portion that requires every American to carry health insurance or to pay a penalty for not doing so. The constitutional challenge to the law is currently pending before the U.S. Supreme Court, which is expected to make a ruling later this month, June, 2012.
Legal experts are divided on the likelihood that the Supreme Court will invalidate the health care reform law. President Obama, of course, is trying to put the best face he can on the constitutional challenge to his pet achievement. Regardless of how the Court rules, however, Obama’s statement about the pending case quoted above is something I never thought I’d hear a professor of constitutional law say. Obama has reinforced the public ignorance about the role the Constitution plays in our system of government, something that he probably did for political purposes but that he should never have done at all.
Go back to the top of this post and read that statement again. In it Obama suggests, indeed he says flat out, that the political support that his health care reform legislation received in Congress is a reason why the Supreme Court should not rule it unconstitutional. Lots of people voted for the law in Congress, therefore the Supreme Court should defer to the politicians and decline to rule the law unconstitutional. That position totally misrepresents the roles of the Constitution and of the Supreme Court in our system of government. Coming from the President, and from a President who was once a professor of constitutional law at that, this statement can do no good and has the potential to do a good deal of harm.
So what is the role of the US Constitution in our system of government? It actually functions in various ways, all of which however are foundation for our government. The Constitution first of all creates the three branch system of government. It creates the executive branch with the President at its head. It creates the legislative branch, the two houses of Congress. It creates the judicial branch, the head of which is the Supreme Court. Beyond that, our Constitution establishes the extent of the authority of each of these branches and of the federal government generally. In its Bill of Rights, the first ten Amendments to the Constitution that were adopted very shortly after the Constitution went into effect, the Constitution guarantees certain personal rights and liberties and sets limits to the power of the executive branch in judicial proceedings. The Bill of Rights originally set limitations only on the federal government, but after the Civil War most of its provisions were applied to the states as well through judicial interpretation of the Fourteenth Amendment.
What is the role of the Supreme Court? One major role of the Court is precisely to rule on the constitutionality of laws passed by Congress. In 1803 the case of Marbury v. Madison established the Court’s power of judicial review of the constitutionality of acts of Congress. That authority has been the law of the land ever since. The power of the Supreme Court to rule acts of Congress unconstitutional is one of the principal checks and balances in our system of government that keep any branch of the government from becoming dominant over the others and that function to preserve the liberties the Constitution reserves to the people.
The issue before the Supreme Court in the health care reform case isn’t one of personal rights but one of the constitutional limits to the power of Congress. The issue specifically is whether or not Congress exceeded the power granted to it under the clause of the Constitution giving it the power to regulate interstate commerce when it adopted the insurance mandate. Whether a law is challenged as beyond the powers of Congress or challenged as a violation of the constitutionally guaranteed rights of an individual, however, the Supreme Court’s role is to determine whether a governmental action, by the Congress or by the executive branch, conforms to the limits of governmental action established in the Constitution. The extent of the political support that the law received in Congress has nothing to do with it. A law that Congresses passes unanimously can be just as unconstitutional as one that passes by a single vote in each house, and President Obama has to be at least as aware of that basic truth of constitutional law as I am.
The Constitution functions in many ways to set limits to what the federal government can do. Those limits are vital, and respecting them is vital to the individual liberty that we Americans so treasure. The role of the Supreme Court in enforcing those limits becomes particularly important precisely in those cases in which an unconstitutional law has wide-spread support in the Congress or among the American people. The best examples come from the civil rights movement.
From the time of the failure of Reconstruction after the Civil War into the 1960s many southern states had passed laws that created a system of racial apartheid, the so-called Jim Crow laws. Among other things those laws created a segregated system of public schools, prohibiting white and Black students from studying together in the same schools using the same materials and taught by the same teachers. Those laws had wide-spread support among white citizens in those states. If we had to wait for the white population to get rid of the Jim Crow laws by popular vote, Jim Crow might very well still be the law in at least some southern states.
We didn’t have to wait for the white population to get rid of the Jim Crow laws by popular vote because the US Supreme Court had the power to review those laws to determine whether or not they transgressed the equal protection of the law that the Constitution guarantees to all citizens. In the landmark case of Brown v. Board of Education in 1954 the Supreme Court ruled that state laws establishing segregated school systems did violate the Constitution’s equal protection clause and ruled those laws unconstitutional. It was the beginning of the end of Jim Crow.
The Brown decision was wildly unpopular with the white citizens of the states whose segregated school systems had been declared unconstitutional. All of us who grew up in the 1950s and 1960s have the images seared into our brains of the hatred white citizens spewed at Black children as the schools were integrated. The citizens of Little Rock, Arkansas, and so many other places in our country would never have eliminated racial segregation in the schools by popular vote, or at least it would have taken them many decades for them to do so. After the Brown decision President Eisenhower apparently regretted having appointed Earl Warren, the author of the Brown decision, as Chief Justice of the Supreme Court. That decision was wildly unpopular.
That decision was wildly unpopular, and that unpopularity had absolutely nothing whatsoever to do with the constitutionality vel non of segregated school systems. The decision’s unpopularity made it difficult to enforce, but it didn’t make Brown bad constitutional law. The decision’s unpopularity was simply irrelevant to the legal issue in the case.
Brown is a perfect example of how important it is to have a system of checks and balances in government, to have a Supreme Court that can and will make decisions that protect individual rights guaranteed in the Constitution especially when the deprivation of those rights has wide public support. One critical function of the Constitution is precisely to protect the rights of a minority against the wants and desires of the majority. If the individual rights mentioned in the Constitution apply only when the majority approves of them, we might as well tear up the parts of the Constitution that establish such rights and throw them in the trash. That’s how important having a court that interprets the law not the whims of the voters really is.
The Brown example comes from the realm of individual liberties, but the principle of independent judicial review in cases more directly involving the constitutional limits on the power of one branch of government, in the health care case specifically of Congress, is just as important. If any law of Congress is constitutional simply because it has broad public support or is unconstitutional simply because it lacks such support, we may as well tear up the provisions of the Constitution that set limits to the power of Congress and throw them in the trash. We would have dictatorship by Congress. Rights reserved to the individual would disappear. Rights reserved to the states would disappear. The role of the Constitution, and the role of the Supreme Court in interpreting and applying the Constitution in specific cases, is important precisely in those cases where something popular violates the Constitution.
President Obama surely knows all that better than I do. I was never editor of the Harvard Law Review. I never taught constitutional law at the University of Chicago. I did, however, have a teaching experience that sheds a good deal of light on our current subject. Back in 1986 I taught a course on the law of the Soviet Union at the University of Washington School of Law, a course co-sponsored by the Russian and East European Institute of the University of Washington. The Soviet Union had a constitution that guaranteed individual rights in much the same way as our Bill of Rights does., but there was one crucial difference. Individual citizens had no right to raise the Soviet constitution as a defense when they were being prosecuted by the state for some alleged crime. If Americans who believe that Congress has overstepped its constitutional bounds in a matter that affects them cannot raise the Constitution as a defense when Congress’ act is popular we will be no better than the Soviet Union was at guaranteeing the rights of our citizens and assuring the proper exercise of governmental power.
Most Americans don’t understand this role and function of the Constitution and of the federal courts. Politicians regularly score points with an uninformed electorate by railing against “activist” judges and unpopular Supreme Court decisions. Religious and political figures on the right wing of American politics have, for example, raised immense amounts of money and gained immense power by whipping up the people against Roe v. Wade. Yet the simple truth is that whether you like Roe v. Wade or you abhor Roe v. Wade, the popularity of laws prohibiting abortion has nothing to do with the constitutionality of those laws. The Constitution and the Supreme Court are most important precisely when they are defending individual rights against public opinion.
President Obama knows better than to say what he did about the Supreme Court ruling on his health care reform law. We deserve better from President Obama than that statement. I expect to hear such uninformed drivel from the likes of George W. Bush. I didn’t expect to hear it from Barack Obama.
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