Sunday, December 5, 2010

The Case For Engaged Justices--George Will

December 5, 2010//WaPo

"The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." - Marbury v. Madison (1803)

Debates about judicial review concern the propriety and scope of judicial supervision of democracy and involve the countermajoritarian dilemma: How to square the principle of popular sovereignty with the practice of allowing appointed judges, accountable to no contemporary constituency, to overturn laws enacted by elected legislators?

A case destined for the Supreme Court concerns the health-care law. The Constitution establishes a government of limited and enumerated powers. Which one empowers Congress to force individuals to purchase health insurance and to punish those who do not?

Supporters of the mandate answer: the power to regulate interstate commerce. Opponents reply: Unless that power is infinitely elastic, it does not authorize Congress to forbid the inactivity of not purchasing a product from a private company. If the power is infinitely elastic, Congress can do anything - eat your broccoli, or else - and America no longer has a limited government.

Fortunately, a Texas judge recently wrote an opinion that provides pertinent clarity about the tension between judging and majoritarianism. The Texas Supreme Court, on which Don Willett sits, struck down a law for violating the Texas Constitution's prohibition of retroactive laws.

The law immunized one company from a pending lawsuit by a man dying of asbestos exposure. The question was: Should the court blindly defer to the Legislature's judgment that its police power - its general authority to protect the public welfare - trumped the constitutional ban on retroactive legislation?

The court said no. What Willett said in his concurring opinion is pertinent to the health insurance mandate.

Has the U.S. Supreme Court construed the commerce clause so permissively that Congress has seized, by increments, a sweeping police power that enables it to do virtually anything it wants? Willett's words, applied to the Obamacare mandate debate, highlight this question: When does judicial deference to legislative majorities become dereliction of the judicial duty to discern limits to what majorities are lawfully permitted to do?

Willett says: In our democracy, the legislature's policymaking power "though unrivaled, is not unlimited." The Constitution reigns supreme: "There must remain judicially enforceable constraints on legislative actions that are irreconcilable with constitutional commands."

Thus a legislature's judgment that a measure is desirable does not relieve a court of the duty to judge whether it is constitutional. "The political branches decide if laws pass; courts decide if laws pass muster," wrote Willett. Judges must recognize that legislators' policymaking primacy "is not constitutional carte blanche to regulate all spheres of everyday life; pre-eminence does not equal omnipotence."

What Willett says of the states' police power is applicable to Congress's power under the commerce clause: "When police power becomes a convenient talisman waved to short-circuit our constitutional design, deference devolves into dereliction." And: "If legislators come to believe that police power is an ever-present constitutional trump card they can play whenever it suits them, overreaching is inexorable."

The judiciary's role as referee of constitutional disputes is, Willett says, "confined yet consequential." But, "If judicial review means anything, it is that judicial restraint does not allow everything." And there can come a "constitutional tipping point" where, by excessive deference to a legislature in the face of a constitutional limitation, "adjudication more resembles abdication." Then a state's police power (or Congress's power under the commerce clause) can "extinguish constitutional liberties with nonchalance."

Like the U.S. Constitution, the Texas Constitution, Willett notes, is "irrefutably framed in proscription." It "declares an emphatic 'no' to myriad government undertakings," no matter how much a majority might desire them. So does the U.S. Constitution, as in the first words of the Bill of Rights: "Congress shall make no law . . ."

Judicial review, he writes, sometimes means preventing today's majority from overturning yesterday's supermajority - "the one that ratified our solemn Constitution."

Hence the idea that federal judges are accountable to no current constituency. When construing the Constitution, however, they are duty-bound to be faithful to the constituency of those who framed and ratified it. "There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means. Let us hope the Supreme Court justices are engaged when considering the insurance mandate.


Just to follow the coverging lines of reasoning into a single line (in an American context):

Conservatives typically argue that unelected Courts go too far in creating, judicially, rights not articulated by the Constitution.

This is judicial usurpation of the legislature's constitutional prerogative.

They also commonly argue against--in another instance of such usurpation-- the striking down of legislation on grounds inarguably not in the Constitution.

But there is a point at which legislation, hence, legislatures, must be reined in. The Constitution clearly proscribes certain actions and clearly guarantees certain rights.

These proscriptions and guarantees are fundamentally, and necessarily, counter- majoritarian in that legislation, on the theory of representative government, expresses the will of the majority of the electorate and, therefore, public will.

(That theoretical notion gets complicated when it seems that governments exceed their perceived mandates--raising a question of political, and not legal, legitimacy.)

Courts supine in their legislative deference abdicate their constitutional role (as first heralded in obiter in Madison v. Marbury).

So Will cites the example of the Texas case where the Texas legislature passed a retroactive law to shield a company from a law suit. The Texas Constitution prohibits--as do all American Constitutions--retroactive legislation. Texas sought to override that prohibition by an appeal to the state's power to legislate for the general welfare.

The case engages the above broad points. Will harkens to Judge Willett's concurring opinion rationalizing the law's invalidity on the broad ground of an engaged court discharging its constitutional duty by holding laws to clear or implied constitutional standards.

(Watch out for that "implied", by the way: as per Willett J.:

..."There is," Willett explains, "a profound difference between an activist judge and an engaged judge." The former creates rights not specified or implied by the Constitution. The latter defends rights the Framers actually placed there and prevents the elected branches from usurping the judiciary's duty to declare what the Constitution means....)

So, for Will, the analogous argument is that justifying the federal legislative requirement to purchase health care insurance on the basis of regulating interstate commerce throws it to the court to become "engaged." So engaged, it should hold that by no means can that regulatory power be stretched to mean the government can compel all of its citizens to purchase something regardless if they want to or don't. Were it not to so hold, SCOTUS would pass deference and move on to rubber stamping, to judicial abdication and therefore to licensing, in effect, inexorable unconstrained legislative power.

(Interestingly, I don't see any discussion by Will of the other rationale for the mandated purchase--that it's a tax.)

I recur to the mandated purchase of car insurance. The answer to that argument, which I used to find persuasive but now wonder about, is that people can choose not to drive, so car insurance is, therefore, a different case. There is no option not to purchase health insurance (save, I suppose, by leaving the country and avoiding the ambit of its laws.)

That argument is typically buttressed by the claim that driving is a privilege not a right and therefore the state is within its right to attach conditions to the granting and licensing of that privilege.

But, as I say, I wonder now about that.

Practically, driving is akin to, is, in effect, a practical necessity. So once we get past those who choose not to drive--nearly nobody who can afford to--and once we get past, if we can, the perhaps artificial distinction between rights and privileges, don't the practical and legal rationales for mandated car insurance form an analogous rationale for mandated health insurance?

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