This week the United States Supreme Court began hearing arguments on the constitutionality of the 2010 Patient Protection and Affordable Care Act, commonly known as “Obamacare.” Whatever the justices eventually decide, most observers seem to have concluded—and most Americans seem to accept the conclusion—that the Supreme Court will have the final word on the constitutional question.
It shouldn’t. And it doesn’t.
As far as the legal challenges are concerned, the Supreme Court does represent finality in the sense that there is no other court to which the losing side in this case may appeal. That does not mean, however, that the constitutional issue will be settled. If anything, this week opens new opportunities for discussion of questions that every American ought to regard as crucial to their existence as a self-governing people.
It is an opportunity for Mitt Romney to change the tone of his Etch-a-Sketch campaign by making a serious and plausible constitutional argument. As governor of Massachusetts in 2006, Romney signed a health care reform law called “An Act Providing Access to Affordable, Quality, Accountable Health Care,” commonly known as “Romneycare.” The average voter understandably struggles to identify any substantial difference between “Romneycare” and “Obamacare.” For months, therefore, Romney’s challengers in the Republican presidential race have bludgeoned him with this issue. Now is the time for Romney to make the argument he should have been making all along, which is that the Tenth Amendment to the U.S. Constitution acknowledges that all power not ceded to the federal government belongs to the people and the states; that the people and the states never ceded to the federal government the power to require that individuals purchase anything; and therefore that while the people and state of Massachusetts may adopt whatever health-care laws they wish, the federal government does not enjoy such power.
It is an opportunity for Thomas Jefferson to make a welcome reappearance in our political and constitutional conversations. The idea that the Supreme Court ought to serve as the final arbiter of all constitutional questions struck Jefferson as a dangerous doctrine. If it’s true that the courts have the power to decide all constitutional questions, Jefferson wrote in 1819, then instead of “three departments, co-ordinate and independent,” designed to “check and balance each other,” we have foolishly extended “to one of them alone, the right to prescribe rules for the government of others, and that one, too, which is unelected by, and independent of the nation.” In this case our constitution amounts to “a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” Each branch of the federal government, Jefferson declared, “has the right to decide for itself what is the meaning of the constitution in the cases submitted to its action.” In other words, according to Jefferson, if we accept the argument that the Supreme Court gives the final word on the constitutionality of “Obamacare,” then constitutional self-government amounts to a sham.
Finally, it is an opportunity for the sovereign people of the United States to reflect on what it means to be sovereign. Too often we reduce popular government to the simple act of voting. Well-intended-yet-ultimately-absurd initiatives such as MTV’s old “Rock the Vote” campaign merely reinforce our misconceptions about what democracy means. Voting is important, of course, but it is far more important that voters develop habits of constitutional reflection. They must understand that the federal government exists at their sufferance. Its powers derive solely from them. This is true of the Supreme Court as well as the president and the Congress. To those Americans who are unconditioned to think in constitutional terms, this might sound like a prescription for anarchy. In fact it is quite the opposite. Popular government, Jefferson observed in his First Inaugural Address, is the strongest government in the world because it is the only form of government that commands the affections of all the people. To make our popular government worthy of the affection, however, we must do more than simply cast our ballots. Our judgment must depend not simply on whether “Obamacare” is a good piece of legislation but on whether we’ve given the federal government the power to enact it in the first place—and, if we haven’t, whether or not we wish to do so.
It is a week, therefore, not of finality but of profound opportunities—to think, to reflect, and to remind ourselves that no matter the Court’s ruling the ultimate authority rests with us.
Michael Schwarz is an assistant professor of history at Ashland University and a fellow of the Ashbrook Center.