- Post 07 July 2012
- By Brion McClanahan | The Tenth Amendment Center
In 1823, Thomas Jefferson wrote that “this case of Marbury and Madison is continually cited by bench and bar, as if it were settled law, without any animadversion on its being merely an obiter dissertation of the Chief Justice [John Marshall].” Jefferson was pointing out a fact – that Supreme Court decisions are nothing more than the politically motivated constitutional ruminations of politically appointed justices.
This is why several members of the Philadelphia Convention in 1787, most notably John Dickinson of Delaware, worried over the possibility of so-called “judicial review,” and why the John Roberts majority decision in the “Obamacare” debacle is no different than the 1803 decision of Marbury v. Madison, or any other from the Marshall Court.
Unfortunately, the political leanings of the Supreme Court justices have made Roberts and Anthony Kennedy the most important members on the bench. They are the swing votes between the “liberal” and “conservative” wings of the Court. As a result, Americans understand that the so-called independency of the judges is a mirage. That would have Founding Father and Supreme Court Justice John Rutledge squirming, for he considered the independence of the judiciary to be the most important safeguard in forcing compliance with its decisions.
How could the public trust politically biased judges?
Hence Roberts’ “obiter dissertation” holds the same weight as Marshall’s often disingenuous rulings between 1801 and 1835. As Jefferson and others of his persuasion noted, Marshall was nothing more than a politically motivated hack who declared republicanism to be the work of terrorists. According to recent reports, Roberts is no different.
John Roberts meet John Marshall. That is not a good thing and for that reason alone renders the Supreme Court largely irrelevant. As I wrote in my Founding Fathers Guide to the Constitution:
One of the chief complaints of the colonists in the years before the American War for Independence was that judges were political appointees. An independent judiciary was a cornerstone of nearly every State constitution written in the years immediately after the War.…the Framers and the rest of the founding generation understood that the qualification “during good Behaviour” made federal judges subject to impeachment. Judges who abused their authority or acted in a partisan manner on the bench were not following an independent course; they were following a crooked one and needed to be corrected (135-136).
Yet, several articles have appeared since the ruling defending Roberts’ decision on two important points. First, Roberts apparently restricted the “commerce clause” and “necessary and proper clause” of the Constitution by declaring that the Affordable Care Act violated said clauses.
Second, the decision is a victory for federalism because the States can “now” opt out of the Medicaid portion of the law. One piece claims that “The liberal judges inadvertently brought Federalism back.” Both of these assertions are wishful thinking, poor logic, and spin doctoring at its worst.
Roberts did not limit the power of congress under the “commerce clause.” His decision in essence upheld an expansive interpretation, and he used the infamous Court decisions of McCulloch v. Maryland, Gibbons v. Odgen, and Wickard v. Filburn to defend an already distorted view of congressional power over commerce. By invalidating the “commerce clause” defense of the Affordable Care Act, Roberts did, in the short term, stop further unconstitutional expansion, but he did nothing to restrict congressional power over commerce.
Roberts revalidated it, going so far as to praise the decision in the Wickard case. We still can’t grow our own wheat for our own consumption on our own land without congressional oversight. Roberts makes that clear. The congress can still, in his mind, regulate anything that might be considered commerce—interstate, international, and intrastate—so long as it does not compel a person to engage in commerce. This is no victory for limited government.
His reading of the “necessary and proper clause” is also problematic. Roberts essentially argues that previous Supreme Court decisions upholding an expansive view of the clause are correct, but because the Affordable Care Act would have to “create the necessary predicate to the exercise of an enumerated power,” the Act could not be upheld under said clause.
Again, Roberts did nothing to invalidate previous poor decisions and in his summary praised Joseph Story and Oliver Wendell Holmes, two of the more activist judges in American history. Story was little more than John Marshall light. Overall, Roberts confirmed almost two centuries of expansive federal power and obviously maintained that the Court is the only body capable of determining the constitutionality of federal law. Don’t be fooled into thinking otherwise.
As to federalism, the Supreme Court cannot “bring federalism back,” and this decision was no victory for so-called originalism. If the Supreme Court is determining federalism than it is already gone and cannot come back. According to Roberts and the “liberal” wing of the Court, the congress has to give the States a “choice” when adopting legislation dealing with federally funded programs. There is a major flaw in this position.
Congress does not have the authority to grant the States any power.
Power is only granted by the States to congress through the enumerated powers in Article I, Section 8, and as granted or delegated powers, they can be rescinded, by the States. Congress is beholden to the States, not the other way around. In essence, by the nature of the original Union and the Constitution as ratified by the founding generation, the States always have an opt-out provision. That is how proponents of the Constitution argued it would be interpreted in 1787 and 1788 during the State ratification debates. Roberts fails to mention those.
As per Article VII, the Constitution is a compact “between the States so ratifying the same.” As a compact between States, if one or more of the parties to the compact clearly violates the Constitution, the others have a right to check that violation. Obamacare is unequivocally a violation of the compact. The law was not made in “pursuance of the Constitution” and therefore is invalid. Even though he magically found a way to keep the law “constitutional,” Roberts said as much, and the people of the States know it.
Hence, the States, acting in their sovereign capacity as members of a federated compact between States, can invalidate the law. Because congress has exceeded its authority, the law is no longer valid or supreme. The Tenth Amendment, added to the Bill of Rights for this very reason, is in force in this instance.
Americans should be wary of the so-called “conservative” spin on the Roberts decision. His logic is faulty, his understanding of the federal republic of the Founders is unsound, and his decision did nothing to secure federalism. If Americans continue to rely on the Court to determine federalism, liberty, or congressional power, they will always be sorely disappointed. No need to worry. The mechanism already exists for resistance to the law.
As Jefferson and James Madison explained in the 1798 Virginia and Kentucky Resolutions, the States are the hedge against federal power, the only check on the monopoly in Washington D.C. In short, the universal reaction to the Roberts’ decision from the States should be a boisterous, “So what!”
Brion McClanahan holds a Ph.D. in American History from the University of South Carolina and a faculty member at Tom Woods' Liberty Classroom. He is the author or co-author of four books, The Founding Fathers Guide to the Constitution, Forgotten Conservatives in American History (with Clyde Wilson), The Politically Incorrect Guide to the Founding Fathers, and The Politically Incorrect Guide to Real American Heroes (forthcoming, November 2012). Find him on Facebook and YouTube.
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