Of Many Things

Once again the fate of the president’s signature domestic achievement is in the hands of the chief justice of the United States. That was clear enough last week when the U.S. Supreme Court heard arguments in the case of King v. Burwell, the latest challenge to the Affordable Care Act of 2010. Unlike the court’s landmark decision in 2012, which upheld the constitutionality of the law’s so-called individual mandate, the issue in King is not whether the law is unconstitutional per se but whether the federal government has exceeded the authority granted it by the statute itself. Apart from that, however, the dynamic on the bench looks very familiar. Chief Justice Roberts is the decisive vote.

Pundits and politicians spent much of last week spinning the proceedings. Across the nation, the conversation focused on whether Obamacare is good public policy. That conversation is interesting but irrelevant in the present context. The question before the court is not whether Obamacare is good law, but whether the federal government has acted beyond the law. Similarly, the question before the court in 2012 was not whether Obamacare should have been repealed, but whether it was constitutional.


These distinctions matter. When we treat the courts as mere extensions of our partisan politics, then we strip them of their essential, vital function: to state what the law is. “The interpretation of the laws,” reads Marbury v. Madison, “is the proper and peculiar province of the courts.” Now I’m not suggesting that the U.S. Supreme Court is above politics. By definition it is a political body, but it is a different kind of political body. It is not simply a third house of the U.S. Congress.

Another reason these distinctions matter: when we fail to appreciate the unique mission of the judiciary, we sidestep a very important question about our constitutional arrangement—namely, what methodologies should the courts employ when interpreting statutes? More important, what methodology should the U.S. Supreme Court employ when interpreting the U.S. Constitution?

That conversation is really important, not least of all because there are two widely divergent methodologies at work. On the one hand, there are those who subscribe to one of the variant forms of “originalism,” the doctrine that the Constitution should be interpreted according to the meaning of the words as those words would have been understood at the time of their adoption. Another group holds fast to the doctrine of “living constitutionalism.” This is the notion that the Constitution is a dynamic document and that modern understandings of its meaning are therefore relevant, if not dispositive.

The living constitutionalists say that the originalists think the Constitution is dead. The originalists charge the living constitutionalists with thinking that the Constitution should mean whatever they want it to mean. Both characterizations are caricatures, of course, yet these are still radically different theories of law, with radically different starting points, that produce radically different outcomes.

We need to have a real debate about these two philosophies. At a minimum, the public might better understand that the ultimate outcome of the struggle between these two philosophical camps will determine not only how the Constitution is interpreted but also how it is amended and applied in real life. What we have instead is a dangerous dialogical mix of ignorance and grandstanding. But how and whether we change the Constitution is the most important decision we make as citizens, much more than choosing a president. That is because in our ingenious system it is the Constitution, not the president—or anyone else, for that matter—that is sovereign.

Comments are automatically closed two weeks after an article's initial publication. See our comments policy for more.
Nancy and Thomas Chisholm
3 years ago
Will the Supreme Court, dominated by Catholics, consider their sovereign duty to relieve pain and suffering or impose more on the patients I serve?
Martin Eble
3 years ago
A better way of putting would be that there are those who subscribe to notion that the Constitution is the basic law, and laws should be interpreted as written and intended by those who made them, and another group believes words mean just what they say they mean, nothing more and nothing less, and therefore the Supreme Court should change the law as times change rather than wait for legislators or amendments. The sovereign duty of the Justices according to the solemn oaths they take is to “support and defend the Constitution of the United States”, not “relieve pain and suffering” which is also not part of the Hippocratic Oath, the Physician’s Oath, or the Osteopathic Oath.
Vincent Gaitley
3 years ago
Actually, "We the People" are sovereign and the Constitution is the legal expression of how that sovereignty becomes a government.


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