A Brief Note on the Supreme Court

As concerned citizen or as self-appointed internet pundit, it seems incumbent on me to say something about the United States’ Supreme Court’s activities over the last couple of days.  Anyone who has paid the least amount of attention to my opinions in the past likely already knows what I think of both contentious decisions, and those who paid careful attention could likely summarize my arguments; I will not go into much detail on either count but feel compelled to register my dissent.

There is a certain air of unreality about the celebrations one is confronted with on every hand after the Supreme Court discovered – or, less kindly, invented – a Constitutional right to marry a person of the same sex.  It is much the same sort of disbelief I would express were we to be found throwing parties on the anniversary of the legendary attempt of the Indiana legislature to set pi equal to three.  It will likely take some time for the fault to make itself clear, longer than it takes a piece of shoddy engineering to collapse, not least because currently there are many other societal ills from which the family, both in institution and in particular examples, is already suffering.  However much celebration of “equality” is all very well, making sure that the things declared equal are in fact equal would seem to be a necessary precaution: and in this case, their obvious inequality is ignored in favor of emotional appeals to “dignity”.

Strangely, having read the decision and dissent, I concede that on a legal or social basis – which is to say, leaving aside the moral heinousness of calling a same-sex sexual affair a “marriage” – there is some case to be made for recognizing a same-sex “marriage”.  That case, however, is not the case made by the majority opinion, but rather is best made as an extension of Justice Thomas’ dissent, which is mainly a discussion of the meaning of liberty.  Thomas concedes that with the repeal of sodomy laws etc. such affairs are legal to carry out, and points out that no restriction is currently in effect on informal (meaning non-governmental) “marriages”, only on State recognition.  He does not say, but it might easily be argued, that if such things are being conducted (or at least desired) anyway, it may behoove a State to recognize them formally, and thus bring potential domestic crimes more closely under its observation.  But that would be a legislative rather than a judicial argument, and as the dissenting opinions all note, the Court is not a legislature, and as Thomas takes pains to point out, “due process” was in fact followed in defining marriage in the various states, and the majority opinion collapses to the status of, in Justice Scalia’s phrase, “the mystical aphorisms of a fortune cookie”.

Taking one thing with another, however, I am much more concerned by Thursday’s ruling on the Affordable Care Act.  The case concerned several individuals who, taking the act literally, ought to have been exempt from the mandate on the basis of cost, except for an IRS regulation issuing subsidies for all purchasers (as against the plain reading of the law).  Now, as a matter of social policy, paying out subsidies to more individuals than originally specified by a law is much less concerning than declaring that two men may “marry” each other.  But as a matter at law, the Court’s reasoning in this healthcare case on Thursday is far more concerning than its handwaving a day later.  On Friday the Court squinted a bit and suggested a “right” which it naturally found worthy of protection; this at least has the saving grace that many people are claiming this right exists.  But on Thursday, the Court managed to determine that the phrase “established by a State” meant nothing in particular, when it was convenient to so conclude – and that the contrast (presumably deliberate) to cases where the phrase was not used should be ignored.  Words, in short, have lost all meaning, if the Court has decided that following a policy is necessary.

And, almost as concerning as the Humpty Dumpty approach to words, the Court took on itself the authority to decide that the effect of a law was not that intended, and the law must be enforced not as written but instead as the Court found it necessary to read it to achieve a more creditable result.  Abraham Lincoln is often credited with the dictum that the best way to force change of a bad law is to enforce it; the Court, deciding the law was bad, elected to change it by whim, with – necessarily – little study done as to whether the result would be an improvement.  Scalia’s dissent in fact suggested at least one way in which this poor re-interpretation of the law could work against the law’s intended purposes.

On Friday, the Supreme Court at least went looking for a claim of basic rights to set against State law: that is, the publicly attempted methodology was reasonable, whatever the merits of the argument.  But on Thursday, the Court’s judgment made no pretense to be anything but legislative, and plainly stated that for convenience it would ignore the clear meaning of words.  Both opinions appear to me specious, but I am far more concerned by the one that sets aside basic honesty.

A Note on the Tenth Amendment

In a recent discussion about the ACA, I was asked to read (and respond to) several pieces on the tenth amendment.  I must, it should be noted, did not realize quite the importance my partner in discussion attached to these links, and – in honesty – considered the arguments set forth in them to have been already adequately dispatched previously by another.  In any case I was reluctant to respond in detail when the subjects under consideration were already multiplying extensively: tempers having (I hope) cooled somewhat, I will present my rebuttal independent of that discussion.

I believe the best of the pieces presented was Dr. Schwinn’s essay “The ACA and the Tenth Amendment”, posted on the Supreme Court blog.  In style, clarity, and – by virtue of its sponsors – authority, it stands as the opinion most significant among the various similar sources cited.  I say it is the best – but I believe Dr. Schwinn’s argument is flawed.

0.  The Tenth Amendment, Text

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

I. A Personal Statement on the Authority of the Supreme Court

The judgment of the Supreme Court is, in any particular case, the final word in law; and as precedent, takes a place somewhere between an opinion to be given the most careful attention and a simple final decision of the question and similar matters.

Additionally, by fairly long tradition, the Supreme Court has the power to consider the validity of laws under the Constitution of the United States.  Although never given this power under the Constitution, the Court must logically have the power to judge based on the Constitution if it is to uphold the most fundamental laws of the land – and under any interpretation, the Court has that actual power, regardless of authority.

What this does not prove, however, is that the Court’s opinion represents the final say on all law and constitutionality in the United States.  It is sufficient here to point out that the Court has periodically reversed itself.  That is to say, it is possible to disagree with the judgment of the Supreme Court – and let me mention here that its decisions are rarely unanimous – and not be wrong; and in point of fact, parties across the political spectrum regularly object to Supreme Court decisions and hope to see them overturned either by further law or further judgments.

In sum: Supreme Court decisions are near-binding precedent in law; and should be carefully considered but are not binding on opinion.

II. Dr. Schwinn’s Opinion

In Dr. Schwinn’s estimation, the tenth amendment serves essentially no purpose:

“…The Court acknowledges that the Tenth Amendment serves two principal purposes.  First, it prohibits the federal government … from using [the states or their officials] as mere instrumentalities of the federal regulatory agenda.  Next, it … protects against federal legislation that goes too far into areas of traditional state concern…  But these are loose constraints, easily bypassed by the federal government … Moreover, any enclave of traditional state concern is necessarily ill-defined and eroding with increasing national integration… [The Tenth Amendment] states but a truism.”

III. Contra Dr. Schwinn

In this opinion – and the piece in general – Dr. Schwinn confuses the status quo – the “what what is”, a phrase stuck in my mind as something a professor of mine once called it – with what (with apologies to Latin scholars everywhere) I am going to call the “status sit“: the way things should be.  (Feel free to improve the phrasing.)  To someone axiomatically inclined – as I am – to see the Constitution as not only limiting but delineating the powers of the Federal government, the conclusion appears to be, not that the Court’s decisions render the legislature’s actions acceptable, but rather that the Court is derelict in its duty to the Constitution, the law of the land.  The cavalier reference to “increasing national integration” as though such a thing were both inevitable and desirable (though at least acknowledging a previous difference) is not a thing calculated to cheer the soul and satisfy the spirit of the – dare I say – determined Jeffersonian.

IV. Argument from the Texts (Amendment, Constitution, and Schwinn)

But supposing that for the sake of argument we take Dr. Schwinn’s statement as an acceptably accurate one; suppose we abide by his judgment that the Tenth Amendment is in fact merely a truism.  This either proves too little to prove his case, or too much.

If he means merely that the Tenth Amendment adds nothing to the Constitution – why, then, we may disregard it, and study the Constitution without it.  And then we come to a further problem: for the interpretation of the Constitution in all points is not a settled subject.  Dr. Schwinn would have us drift with the times, and with Court interpretations; others like myself would have us all believe that it meant something specific.  Dr. Schwinn acknowledges the controversy over, for instance, the Commerce clause:

“Consider the clause at issue in the cases challenging the ACA, the Commerce Clause: ‘The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’  Terms and phrases like ‘to regulate,’ ‘commerce,’ and ‘among the several states’ are inherently indeterminate and susceptible of a wide range of interpretations, especially as society, technology, and trade change and evolve.  (If there is any doubt that these terms and phrases are ambiguous, look at two hundred years of contentious litigation over their meanings.)”

But he merely waves it away.  The Court has (both generally and especially recently) tended to take an expansionistic view of the Federal government’s powers; therefore it must be the correct meaning.

He acknowledges that previous sittings of the Court have taken a different view:

“To be sure, the Tenth Amendment had its heydays.  During the first, in the early nineteenth century, the Court interpreted the Tenth Amendment to bar federal legislation related to manufacturing and production ‘areas traditionally within the states’ police powers[‘].”

But he again dismisses this earlier view (incidentally supporting my earlier contention that the “opinion of the Supreme Court” cannot be considered anything like a final authority on Constitutional meaning): “…This high point of the Tenth Amendment ended decisively in 1941, when the Court in United States v. Darby upheld the Fair Labor Standards Act of 1938.”

Thus he proves too much: the Tenth Amendment is meaningless; so we must defer to Constitutional interpretation – and yet he has not proved the Progressive interpretation correct, merely assumed such a thing.  By discarding the Tenth Amendment, he has “proved” so much that he has merely moved down to another turtle.

Alternatively, if we take “truism” as a factual description, rather than a dismissal (as evidently was not intended by either the 1941 Court or Dr. Schwinn, but bear with me here), such a description fails to answer the problem at all: it makes the Tenth Amendment self-evidently true – and calls into question the entire march of the Federal government toward sovereign interior power.  Let me quote an excerpt from Madison on the relationship of the States and the Federal government: in Federalist 45, he begins his argument for the proposed constitution – after several digressions on other governments – by urging that, “The State governments will have the advantage of the Federal government…”  I will of course admit that this view was not shared, either as an opinion or a goal, by all of the Federalists (or probably all of the anti-Federalists).  Hamilton’s goals, for instance, were indubitably in favor of a more concentrated power (though one wonders whether, having participated in a revolution brought on by, among other things, the forced buying of what were essentially publishing licenses, even he would be quite accepting of the modern state of affairs).  At any rate, Madison sums his ideal up later as follows:

“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

“The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

In conclusion, I will merely note this: that the period of marked Federal ascendancy is one that was marked in its beginning by a war started in part (how small or large, I leave to your opinion, but I demand acknowledgement of some motivation) to secure the rights (however heinous – a topic for another time) of the individual States; that this expansion was slowed, in some measure, by the peace (in some measure) of the Reconstruction; and that in the crisis eras of World War, Depression, World War, Cold War, and Gulf-War-on-Terror, the role of, funding of, spending by, and perceived dependence on the Federal government has proceeded almost unabated – the “almost” being, mainly, the presidency and a half of one Calvin Coolidge.  Madison seems to have been proved distressingly right in his governmental calculations – and depressingly wrong in his historical ones.  (Though I leave aside his calculations on defense – to over-generalize, Americans have been unwilling to fund a military, and unwilling to leave well enough alone when they do happen to have one.  But that is a topic for another time – and not an area of my expertise.)