The rhetoric surrounding the Supreme Court and the H.H.S. v. Florida case certainly ratcheted up on both sides this week. Expect this partisan fray to get even more intense in the weeks leading up to the decision on the constitutionality of Obamacare, expected in late June. But I'm not going to get into the midst of this fray today (perhaps I will do so tomorrow, though), because I thought it would be more intelligent to review some bedrock definitions of the terms involved.
The first is "constitutional." What is constitutional and what is not? The answer may sound cynical, but it is the absolute truth: what is constitutional is whatever a majority of Supreme Court justices currently say is constitutional. That's it. Nothing more, nothing less. Of course, even this fact may not be constitutional in and of itself, but we'll get to that in a moment.
The United States Constitution was drafted in the late 1780s, after the failure of the Articles of Confederation. But there are two frustrating problems with this foundation of American governmental structure: it is (at times, and in places) maddeningly vague; and it is also quite often maddeningly out of date.
Here's a quick quiz: Is the United States Air Force constitutional?
Well, yes and no. Nowhere in the text of the Constitution is there a single word authorizing an Air Force. Conversely, not a single word in the Constitution prohibits the United States from creating an Air Force. This omission is due to the fact that airplanes weren't invented yet when the Constitution was written.
But I don't believe anyone's ever questioned the Air Force's right to exist constitutionally, because the very question borders on silliness. The Founding Fathers had no opinion one way or another on something that did not exist while they were alive.
I point this argument out to counter the smug "strict constructionist" basic argument. Just because the Founding Fathers didn't address an issue doesn't mean that the United States cannot modernize itself, to put it another way.
The entire argument of whether something in the modern world is "constitutional" does not harken back to the Founding Fathers -- it hearkens instead to a majority of the individuals on the current Supreme Court, and nothing more.
Again, this may sound cynical. But that doesn't make it any less true. Congress passes laws all the time which are blatantly unconstitutional on their face. Airport security searches, for instance, are in clear violation of the Fourth Amendment. As are drunk-driving checkpoints. It is absolutely impossible to read the clear, unequivocal text of the Fourth Amendment and then make the case that either of these examples is legally allowable under the Constitution the Founding Fathers came up with. There isn't even any grey area, here.
But both laws have indeed been upheld by the Supreme Court, so both are -- by definition -- constitutional at the present time. And these are just two relatively innocuous and uncontroversial laws -- there are dozens of others currently "on the books" legally which plainly violate specific clauses or passages in the text of the U.S. Constitution.
The Constitution, to put it another equally-blunt way, is whatever the Supreme Court says it is. Were the concept of "separate but equal" and all the Jim Crow laws constitutional, before Brown v. Board of Education? Yes, they were, because the Supreme Court refused to strike them down before that point. When a Supreme Court did so in Brown, all of these laws immediately became unconstitutional and were null and void. But just because separate drinking fountains based on skin color is unconstitutional today doesn't mean these laws always were. "Constitutionality" is not an absolute -- it changes over time. Remember, slavery was written into the original Constitution the Founders signed, and was completely constitutional as a result.
This is a hard fact not only for lawyers but also for the public at large to swallow: the entire concept of "constitutionality" has a time component. You cannot say whether a law is constitutional or not without also answering the question "in what year?"
Is the Obamacare individual mandate constitutional? Well, at the moment, yes. Will it be in July? Nobody knows.
The Constitution is frustratingly vague on all sorts of issues, and the largest of these is the power relationship between the three supposedly "co-equal" branches of government. Again, by definition, if the branches were truly co-equal, then they could ignore each other at will. Newt Gingrich already pointed this out a few months back, and historically he's got a much more interesting point than the reaction to his comments ever admitted (see what I wrote back then for more context).
Because the lines and limits of power between the three branches are so ill-defined, it has led to a tug-of-war ever since. Presidents routinely attempt to defend and expand the Executive Branch's power. Congress does exactly the same thing, and pushes back on the other two branches in support of more power for the Legislative Branch.
The Judicial Branch, personified by the Supreme Court, is (depending on how you look at it) either the most powerless branch or the most powerful. It is powerless, as Andrew Jackson pointed out during his own fight with the court, to enforce any of its decisions. It has no police force of any kind -- all federal forces fall under the Executive Branch in one way or another, and are funded by the Legislative Branch. The Court has nothing to do with any of that. But the Judicial Branch is also the most powerful branch, because it has reserved for itself the final say on federal law.
Which brings us down the path to a very ironic garden of weeds. The biggest irony in the current debate is how both sides have completely reversed the positions they've been holding for the past few decades. Democrats are now decrying "activist judges" and Republicans are piously citing Marbury v. Madison. Both are hilariously ignoring their previous stance on the issue. But we'll get to the specifics tomorrow, since we're always snarkiest on Fridays (ahem).
Marbury v. Madison is the monumental irony itself. Decided in 1803, it was perhaps the biggest power grab in the history of American government. The key phrase is now even inscribed on the wall of the Supreme Court building in Washington, just in case anyone forgets: "It is emphatically the province and duty of the Judicial Department to say what the law is."
By handing down this decision, the Supreme Court declared itself the "final word" in constitutional debates. But here's the irony: nowhere in the text of the Constitution is this power found. To put it another way, Marbury v. Madison is not "constitutional" in the way that strict constructionists use the term, and never can be. The Founders simply did not give this power to the courts. The Supreme Court nakedly grabbed this power. Ever since (by the way I'm defining the term), it has been constitutional.
Such power grabs are more common that might be thought, and there is nothing unconstitutional about a president (or a Congress) making such an attempt. Franklin Delano Roosevelt got so frustrated with his Supreme Court that he tried such a power grab -- now infamously known as his "court-packing" attempt. His reasoning was simple: if he couldn't get a majority of nine justices to agree with him that the New Deal was constitutional, then he'd just put six more justices on the court, and guarantee himself a majority.
Note well: nothing about this attempt was unconstitutional. The Constitution itself is silent on how many justices the Supreme Court is comprised of. The Court actually started with six justices, and at times has held as many as ten. There is nothing sacred about the number nine. Raising the number on the court from nine to fifteen was not entirely unprecedented, in other words. F.D.R. asked Congress to approve this scheme, he didn't just attempt it on his own. Congress turned him down, but the Court got the message loud and clear: power grabs could go both ways.
The Supreme Court is ruled by two nebulous concepts: tradition, and precedent. Tradition dictates plenty of their internal rules, and nothing more. The entire section on the Judiciary in the Constitution is only a few paragraphs long, so they've had to make up their own rules as time has gone by.
Precedent, however is supposed to be a firmer ground for the Court to operate upon. But this concept is also in our garden of ironic weeds, because any precedent -- at any time, for any reason -- can be overturned by the current Supreme Court. There is absolutely nothing stopping them from doing so. The recent Citizens United case shows this -- it overturned a century's worth of legal precedent in one fell swoop. Legal precedent, and laws passed over time based on that precedent, sometimes seem to be built on the bedrock of long-settled judicial positions -- but that bedrock can turn to sand in an instant, when five justices decide against it.
The most absurd example of this would be if any future Supreme Court threw out Marbury v. Madison, and determined that the Supreme Court did not ever have the power of judicial review of any law's constitutionality in the first place. It is laughable to even imagine this, but there is absolutely nothing preventing any court from doing so -- except for tradition and precedent. And the fact that they'd be declaring themselves powerless, of course, in the national debate.
The court, ever since Marbury v. Madison, has no real check on its own decisions. There are only two routes open to the other branches if they disagree with a court's decision (well, technically there are three, but "ignore the court and do what you were going to do anyway" hasn't really ever been used since Andy Jackson's time, so we'll discount that as a viable option). These two possible recourses are: impeachment or amendment. If Congress thought a Supreme Court had gone too far, and really wanted to attack them in a frontal assault, they could start impeaching the justices they didn't like. The only thing stopping them from doing so would be public opinion and the vote count in the House and Senate. But the second method is a more powerful one -- if the Court tosses out a law then Congress can in effect overrule them by passing the same law as a Constitutional Amendment. The road for doing so is a long one with plenty of high hurdles, but if such an amendment is ultimately ratified, then the Court can never overrule it ever again. The Court's power is to hold the Constitution itself up as a yardstick to measure any other law. Since an amendment is part of the Constitution itself, it can never subsequently be ruled unconstitutional -- the very idea would be preposterous. The only way an amendment can be overthrown is by another amendment (see: Prohibition).
We began this with a definition and we're going to close with a definition. This one's easy, because it is a term that has no meaning legally (unlike "constitutional"). Like the time aspect of "constitutional," it also has a component to it that is not obvious to all.
The term both sides of the political debate love to bandy about at times like these is "judicial activism." The opposite of this term is praise for "judicial restraint" (or even "upholding the Constitution"). What is not obvious to most (and what is never admitted by anyone attempting to use this term politically) is the truth that the term "judicial activism" cannot be used in a neutral way. There is an "I" in the equation, always.
Here's my definition for judicial activism: "A judge or court decided something I didn't like, and don't agree with." Judicial restraint is defined as: "A judge or court decided something that I approve of and agree with." Nothing more, nothing less.
This holds true no matter what political party the person or persons using the terms belongs to -- because even uttering the term is, and always must remain, completely and utterly subjective.
Everyone's got an opinion on what is and what is not constitutional. Everybody thinks judges should rule the way that they think. That is indeed everyone's right (including even the president), but the only thing which determines constitutionality is which way a majority of the Supreme Court rules. We'd all do well to remember this in the next few months.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant