Constitution Daily

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Constitution Check: Has the Supreme Court killed off the Constitution?

June 29, 2012 by Lyle Denniston


Constitution Check: Fact-checking the news

Lyle Denniston looks at the long-term meanings behind the Supreme Court's health care ruling, what Chief Justice John Roberts was thinking and what it could all mean for the election.

“The U.S. Constitution died today.  The underlying hope and belief that our nation’s founding document protected individual freedoms from an ever-encroaching government is a thing of the past based upon this ruling.”

– Bill Wilson, president of Americans for Limited Government, an advocacy group based in Fairfax, Va., in a press release June 28 commenting on the Supreme Court decision upholding almost all of the new federal health care law.

We checked the Constitution, and…

To paraphrase Mark Twain, the death of the Constitution may well be “greatly exaggerated.”  Our “founding document” was still alive and well when we checked, and it does not appear to be approaching a terminal condition.   The Supreme Court left Washington for the summer yesterday, and the Justices – though deeply divided on their last day on the bench this term --  seemed confident that the Constitution would be in good health when they return in October.

Whatever hopes the opponents of the new Affordable Care Act had that the Constitution would provide the means to kill that law, they surely were disappointed.  But the survival of the Act was not at the Constitution’s expense.  Even so, it is entirely true that the Constitution does have a different meaning today than it had two days ago, due to this new decision.

Here are some of the characteristics of what might well be termed a new constitutional order:

-- Congress is clearly on notice that its vaunted power to regulate interstate commerce, which seemed to have no limits, may well have reached its outer limits.   People’s private lives and private economic choices cannot be regulated, by Congress, if the people do not voluntarily move into a branch of commerce that runs across state lines.    The Court’s 1942 decision in Wickard v. Filburn, allowing Congress to control how much wheat a farmer can grow on his own acres, for his own use, now looks like a relic of the constitutional past.

-- Congress, however, has learned that it definitely had the authority to try – for the first time in history – to arrange for nearly universal health care for Americans, provided it finds a means to enforce such a goal by using its taxing power to induce people to become customers of the health insurers.   In the process, Congress can take creative and bold steps to hold down not only the cost of health insurance premiums, but the cost of health care itself.

-- And Congress also has been told that it can push through massive reforms of the way a single industry operates – in this instance, the health insurance industry – if it is careful about the specific authority in the Constitution that it puts to work.

-- If Congress wants to encourage states to adopt a broad new social welfare program, and puts up most of the money for it, it cannot force the states to take part by threatening to take away the money they already were entitled to receive.   A state’s participation in such a government-funded program has to be purely – and demonstrably – a matter of free choice.

-- And, for the first time in history, the Court has embraced in an actual case, to challenge a major piece of federal legislation, a theory that the states retain a degree of sovereign dignity that can be severely compromised by a federal law that attaches too tough conditions on their receipt of federal money for a federal-state program.  (In a Court otherwise divided 5 to 4, that proposition had a healthy 7-2 margin.)

There were other consequences of Thursday’s decision, but not least was that Chief Justice John G. Roberts, Jr., took a giant step toward crushing the popular myth that “the Roberts Court” is a conservative wrecking crew bent on hell-bent promotion of Republican causes.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Some pundits have been saying that Roberts and President Obama have been on a collision course for the past two years, and one of them would have to yield to avoid a constitutional crisis.

In fact, the President’s most-prized domestic policy initiative survived in the Roberts Court – and, in the process, the Chief Justice did not forfeit one sliver of his conservative constitutional philosophy; in fact, he solidified the five-Justice conservative majority, at least on the severe retrenchment of Congress’s power over commercial activity.    To do that without dismantling entirely the modern “welfare state” was really quite creative.

As an incidental benefit to the Supreme Court, which genuinely believes it has no place in politics, it will be a lot harder for President Obama to run against the Supreme Court in the balance of this year’s election campaign.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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