Sunday, June 3, 2012

A Supreme Decision

The headline for the March 26 issue of Wall Street Journal read: "Health Law Heads to Court: Justices Hear Challenge in Case That Broadly Tests Boundaries of Federal Power."

The Economist took a similar perspective in its March 31 - April 6 issue with an article heading which read: "Full-court Press: Barack Obama's health-care law moves to America's highest court, and looks to be in danger. The case could transform the power of the federal government."

These are not examples of sensationalism. The fact is there has not been a bigger, more fundamental case presented to the Supreme Court since FDR advanced the cause of the New Deal. The Case of the Obamacare Mandate (part of President Obama's signature heathcare reform act) reflects a consistent thread of political debate that is woven into the fabric of American politics since the Founding Fathers first wrestled with the limits of Federal Power.

Obama remained silent during the proceedings. But, shortly thereafter he enraged some neocons with his strong remarks toward the Court. It quickly degenerated into this horribly twisted political event where the Office of the President was ordered to present a memorandum explaining the context of Obama's remarks toward the Court's Constitutional Authority. Battle lines were drawn or rather they were re-affirmed, an age-old American fight resumed.

There are forces in the world that transcend generations. One such force is the political and cultural legacy at the heart of this democratic republic. The American Civil War is in the Now. The war started long before the bloodletting of the 1860's. It is interwoven with the very fabric of founding this nation. The States were at war about what the Founding Fathers primarily argued over. We are still having the debate of our Fathers. What is the limit to Federal Power? What is the extent of State Sovereignty?

One way to examine this powerful undercurrent of Americana is to look at the history of the Amendments to the Constitution from a broad perspective. The first ten amendments are, of course, known as the Bill of Rights and were inspired by Thomas Jefferson, my favorite patriot, and written by James Madison. Jefferson was a genius but I'll save that for a future post.

Anyway, Amendments One through Ten deal primarily with individual freedoms and how individual justice should work. The Tenth specifically limits the powers of the Federal Government. The Eleventh grants the States more protection from the citizens of other States. It is clear and beyond reasonable debate to understand that when this amendment was adopted in 1795 State Sovereignty was in ascension, the Constitution was a document for clarifying the power of the Sovereign States working in unison.

While the Twelfth fine-tuned how the Electoral College worked in electing the President and Vice-President, the Thirteenth, of course, abolished slavery. This is the first amendment of the Constitution where Federal Power clearly overrode the Sovereign States. As such, it is a historic turning point for the Constitution. Federal Power became ascendant compared with State Sovereignty. In this way, it is not ridiculous to see that the War Between the States was partly a metaphysical bloodletting on States Rights.

Amendments Fourteen and Fifteen again deal with individual liberty and rights. But, the Sixteenth Amendment established the Federal income tax, a clear expansion of Federal Power. The citizens of every State would pay homage to the Central Government, this formed a different sort of Union.

Just a few weeks after the Sixteenth was passed in 1913 the Seventeenth Amendment dealt a heavy blow to State Sovereignty. Until that year, US Senators were elected directly by the State Legislatures, as stipulated in the Constitution, not by popular vote. This, of course, was a victory for democracy but it came at the expense of State power.

The Eighteenth Amendment established Prohibition nationwide, only the third amendment so far (after abolition and the income tax) to grant broad, new authority to the Federal Government. This was followed in 1920 with the Federal establishment of women's suffrage. Individual rights, from the beginning, have made up the majority of changes to our Constitution.

The Twentieth Amendment adjusted the timing of when sessions of Congress and terms of Presidents began in January. The Twenty-First expressed Federal power's ability to reverse itself and repealed Prohibition, again liberty was validated in the face of Federal authority. There have been six more amendments since then, mostly dealing with refining Federal procedures, though one, in 1971, expanded individual liberty a bit more by granting 18 year-olds the right to vote.

Constitutional amendments have either enhanced individual liberty or strengthened Federal Power over State Sovereignty or addressed the workings of electing the President and Congress. That is the story from this specific perspective. While I am blogging about a Supreme Court decision and not about Constitutional amendments, the amendments, taken together, reveal something of the struggle that is central to the Obamacare Mandate.

Obamacare was not conceived to address individual liberty nor to limit State Sovereignty. Nevertheless, by either validating or limiting the ability of the Federal Government to mandate that citizens participate in pools of public healthcare coverage, the Supreme Court will contribute another chapter in the on-going question of Federal Power.

There is no better summary of this central political thread in our nation's cultural debate than that written by E.A. Pollard, former editor of the Richmond Examiner,  in 1866.

"The two great political schools of America - that of Consolidation and that of States Rights - were founded on different estimates of the relations of the General Government to the States. All other controversies in the political history of the country were subordinate and incidental to this great division of parties. The difference between the States Rights and Consolidation schools may be briefly and sharply stated. The one regarded the Union as a compact between the States: the other regarded the Union as a national government above and over the States. The first adopted its doctrines from the very words of the Constitution; the seventh article for the ratification of the Constitution reading as follows:

"'The ratification of the Conventions of nine States shall be sufficient for the establishment of this constitution BETWEEN the States so ratifying the same.'

"The great text of the States Rights school is to be found in the famous Kentucky and Virginia Resolutions of 1798. These resolutions are properly to be taken as corollaries drawn from those carefully-worded clauses of the Constitution, which were designed to exclude the idea that the separate and independent sovereignty of each State was merged into one common government and nation. The Virginia resolutions were drawn up by Mr. Madison, and the Kentucky by Mr. Jefferson. The first Kentucky resolution was as follows:

"Resolved, That the several States comprising the United States of America are not united on the principle of unlimited submission to their general government, but that by compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government, for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government.". (pp. 41-42, emphasis is Pollard's)

Now this blunt (and seemingly irrelevant by today's standards) Resolution was very powerful and controversial back in the day. Jefferson wrote the Resolution anonymously, as he rightly feared he could bring impeachment upon himself by its publication - he was serving as Vice-President at the time. Most States (but certainly not all) specifically voted to oppose the Resolutions. However, many States, including Massachusetts, Connecticut, and Rhode Island as well as (more famously) South Carolina, referenced the Resolutions for support whenever it suited them in opposing Federal Power in the years before the War Between the States. After that, the Resolutions were relegated to the Lost Cause mythology as Federal Power ascended.

As I have stated, the case of the Obamacare Mandate, does not directly address State Sovereignty. Nonetheless, it is the story of the American experience that where the question of Federal Authority arises that of power of the States is inherently weighed as well. As my brief history of the Constitutional Amendments shows, Federal Powers have been broadened at the expense of the States.

Should the Court strike down the Mandate it will mark the opening of a new chapter in this contentious story. The most recent chapter has involved a raging tide of Federal Authority in the form of The New Deal and The Great Society, twin pillars of American liberalism. It is perhaps unfortunate that big government and liberalism have become so intertwined. This was not always so and it isn't necessarily so today. Liberalism does not demand Federalism as its prerequisite.

Big Government is all about forcing other citizens to live however the particular interest group wants them to live. For liberals this is the welfare state. But, conservatives are just as guilty. They want Big Government to fight their wars and to force women to have babies they don't want to have. The landscape is the same. Both conservatives and liberals want Big Government - made in their image.

Still, there is a fallacy, at least among the Left, to think that their progressive form of government, once established, is forever their's - no turning back.  The implicit assumption of liberal concerns about the Supreme Court is, of course, anything that is based upon pre-New Deal thinking is backwards, simpleton, and misguided. Rather than resolve this issue, the twin beacons upon which postmodern American liberalism rests, may have grown soft and fat, the pendulum might be near the point of reversal.

That is for the Supreme Court to decide. Obama warns against the Court striking done his Mandate and thereby becoming "an activist court." Well, I've got news for the president. This is already an activist court, one that is stacked toward the Right just as the Court was stacked towards the Left from the 1930's into the 1960's. With their atrocious ruling in the Citizens United case, this court has already bloated the coffers financing political campaigns and rendered Thomas Jefferson's Freedom of Speech into a dehumanization of speech where corporate entities (in the form of something new - Super PACS) have a right to greater speech than the mass of human individuals.

Is it reasonable to expect an activist Right-leaning court to uphold the cornerstone of the largest expansion of Federal Power since LBJ was president? The answer to that question will not definitively answer all the other questions about the limits of Federal Power. But, it will set the tone for quite possibly the rest of my life.

The decision is expected later this month.

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