No where in the text of the United States Constitution is there any language that suggests or permits the Supreme Court of the United States to pass upon the constitutionality of statutes enacted into law by the Congress. Nevertheless, Hamilton in Federalist No. 81 suggested that such a power might be a necessary extension of Supreme Court's jurisdiction given the need for at least one of the three putatively coequal branches of government to determine which actions of the federal government or the states might violate Article VI of the Constitution which expressly provides that "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all treaties made...... shall be the Supreme Law of the Land; and the Judges in every States shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." 
Not long thereafter, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall, in a perverse and ingenious decision that was carefully crafted to handcuff Thomas Jefferson and other advocates of limited judicial power, held that the Congress had acted unconstitutionally in granting the Court the authority to issue original writs of mandamus. Decades after this power to invalidate acts contrary to the Constitution was firmly established as a legal principle, in the case of Gibbons v. Ogden, 22 U.S. (9 Wheat.)1 (1824), Marshall ruled that the power of the Congress to regulate "commercial intercourse" extended to all activity having any interstate impact -however indirect - and that this power was plenary and virtually unlimited: "The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, as in many other instances...the sole restraints...on its abuse." Ibid. at 197.
It was not until one hundred and seven years later, despite the expansive language of Marshall's opinion, that the United States Supreme Court finally conceded the right of Congress to set minimum wages and maximum hours for employees who were engaged interstate commerce.United States .v Darby, 312 U.S. 100 (1941). A year later, in Wickard v. Filburn, 317 U.S. 111 (1942) the Supreme Court held that the Congress could regulate a farmer's cultivation of wheat for his own family's consumption because the cumulative effect of that kind of act by individual farmers would affect the supply and demand for wheat in the interstate commodity markets.
Since the advent of the Rehnquist era, however, an increasingly reactionary Supreme Court has tried to narrow the scope Article I, section 8, which confers upon the Congress, without any limiting language, the power "to regulate Commerce with foreign nations; and among the several States, and with the Indian tribes." To do this, they have chosen to breath new life into only one word of the language of Tenth Amendment that reserves certain powers not delegated "to the States respectively, or the people."
In San Antonio v. Lopez, 115 S. Ct. 1624 (1995), by a 5-4 vote, the Supreme Court struck down a gun conviction that occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply.That same term, in U.S. Term Limits, Inc. V. Thornton, et al, 514 U.S. 779 (1995), Justice Clarence Thomas came within a "whisker' of persuading his colleagues to return American constitutional jurisprudence to the Articles of Confederation. In his dissent, Justice Thomas observed that the majority had "fundamentally misunderstood the notion of `reserved powers,'"and that "[c]ontrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications" for their members of Congress. Thomas contended that "[a]s far as the Federal Constitution is concerned . . . the States can exercise all powers that the Constitution does not withhold from them." Furthermore, "[t]he Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it."Justice Thomas insisted that "[I]f we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures."
After the more recent appointments of Scalia, Alito and Roberts, questions about the Court's independence as an impartial, precedent-observing, judicially- restrained and non-partisan arbiter of the Constitution have become more pronounced. The apparent hostility of these three appointees, coupled with the reflexive, unabashed and well-documented hostility of Clarence Thomas to Congressional power, and the intellectual and linguistic difficulties with which Justice Kennedy appears to struggle, raise worrisome concerns about the fate of the Affordable Health Care Act and the hundreds of separate provisions, including the a personal mandate, the restrictions on denial of insurance for preexisting conditions, the Medicaid extension provisions, and the extension of family medical insurance to family dependents until their twenty-sixth birthday, that the act encompasses.
The U.S. Census Bureau reported that a record 50.7 million Americans--16.7% of the population--were uninsured in 2009. According to the Kaiser Family Foundation's report on Medicaid and the uninsured, in 2004, at which time when 44 million Americans were reported to be uninsured, uncompensated care was estimated to be $40.7 billion. Today that cost has likely doubled. In a remarkable and important book, The Great Risk Shift,Yale University Political Science professor, Jacob S. Hacker, after reviewing longitudinal studies, concluded that "Over a two year period, more than eighty million adults and children - one out of three non-elderly Americans, 85 percent of them working or the kids of working parents -spend some time without the protection against ruinous health costs that insurance offers."
The cost for medical treatment for the uninsured is borne by all of us, as taxpayers through Medicaid and by additional, pass-through assessments imposed by insurers on the healthcare insurance plans of those of us who have coverage.
If any of the lower court decisions provide guidance on the ideological world-view of the current Supreme Court's reactionary wing concerning efforts to reform health care, the decision of U.S. District Judge Henry Hudson might be informative. Judge Henry ruled that the healthcare coverage mandate was unconstitutional because Congress, based upon his narrow and unsupported interpretation of the interstate commerce class, cannot regulate what he deemed to be purely passive economic activity. In Commonwealth of Virginia v. Sebelius, 728 F.Supp.2d 768 (2010), Judge Hudson found that, "At its core, this dispute is not simply about regulating the business of insurance - or crafting a scheme of universal health insurance coverage- it's about an individual's right to choose to participate."
To arrive at this extraordinary conclusion, Judge Hudson failed to objectively apply the "rational basis" scrutiny test that federal courts have historically used to review the underlying authority of Congress to enact legislation under Article I of the Constitution. Judge Hudson accomplished this feat by verbal legerdemain: He contended that in ruling on the federal government's earlier motion to dismiss,"the Court recognized that the Secretary's application of the Commerce Clause and the General Welfare Clause appeared to extend beyond existing constitutional precedent..." Judge Hudson then proceeded to distinguish the instant case before him from the broad swath of Supreme Court precedent that, since the advent of the New Deal, has upheld the power of Congress to regulate a wide array of private economic activity based upon of its power to regulate interstate commerce. The 1964 Civil Rights Act - that outlawed racial segregation - was expressly based upon that constitutional grant of authority to the Congress.
Judge Hudson next turned his attention to a favorite target of right-wing jurists: Article I, section 8, clause 18, that expressly permits Congress to "make all laws Necessary and Proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States..." This clause, which has also been described as the "elastic clause" enables Congress enact legislation for the "General Welfare"not specifically enumerated.
Judge Hudson reasoning was a perfect non-sequitur: "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution."
In his decision, Judge Hudson denied that Congress had the authority, independent of its power to regulate commerce, under the Necessary and Proper clause to enact health care reform. If his reasoning is subsequently adopted by the five equally reactionary members of the Roberts Court, the Constitution, as a document, will no longer be interpreted as a flexible, evolving instrument that can be adapted to ever-changing conditions beyond those ever envisioned or anticipated by the Founding Fathers. An increasingly rigid and narrow interpretation of the text of the constitution will do for constitutional jurisprudence what Southern Baptists, given their literal interpretation of the King James Bible, have done for the ability of Christian doctrine to evolve in the face of new, unanticipated challenges: make it obsolete. The harm to all of us as citizens, however, will be far greater.
A jurisprudence rooted in 18th century notions of individual rights and Adam Smith's economics will not help to create public policies for the 21st century. Rather, if the Affordable Health Care Act is struck down by five, unelected, unaccountable jurists, it will signal this country's continued departure from the principles of democratic governance. If Dickens' observation that "the law is a ass" is not to be confirmed, the five right-wing judges will have to sharpen their analytical tools and put aside their ideological biases.
The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)
Not long thereafter, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall, in a perverse and ingenious decision that was carefully crafted to handcuff Thomas Jefferson and other advocates of limited judicial power, held that the Congress had acted unconstitutionally in granting the Court the authority to issue original writs of mandamus. Decades after this power to invalidate acts contrary to the Constitution was firmly established as a legal principle, in the case of Gibbons v. Ogden, 22 U.S. (9 Wheat.)1 (1824), Marshall ruled that the power of the Congress to regulate "commercial intercourse" extended to all activity having any interstate impact -however indirect - and that this power was plenary and virtually unlimited: "The wisdom and discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, as in many other instances...the sole restraints...on its abuse." Ibid. at 197.
It was not until one hundred and seven years later, despite the expansive language of Marshall's opinion, that the United States Supreme Court finally conceded the right of Congress to set minimum wages and maximum hours for employees who were engaged interstate commerce.United States .v Darby, 312 U.S. 100 (1941). A year later, in Wickard v. Filburn, 317 U.S. 111 (1942) the Supreme Court held that the Congress could regulate a farmer's cultivation of wheat for his own family's consumption because the cumulative effect of that kind of act by individual farmers would affect the supply and demand for wheat in the interstate commodity markets.
Since the advent of the Rehnquist era, however, an increasingly reactionary Supreme Court has tried to narrow the scope Article I, section 8, which confers upon the Congress, without any limiting language, the power "to regulate Commerce with foreign nations; and among the several States, and with the Indian tribes." To do this, they have chosen to breath new life into only one word of the language of Tenth Amendment that reserves certain powers not delegated "to the States respectively, or the people."
In San Antonio v. Lopez, 115 S. Ct. 1624 (1995), by a 5-4 vote, the Supreme Court struck down a gun conviction that occurred within a 100 yards of a school on the grounds that the interstate commerce clause did not apply.That same term, in U.S. Term Limits, Inc. V. Thornton, et al, 514 U.S. 779 (1995), Justice Clarence Thomas came within a "whisker' of persuading his colleagues to return American constitutional jurisprudence to the Articles of Confederation. In his dissent, Justice Thomas observed that the majority had "fundamentally misunderstood the notion of `reserved powers,'"and that "[c]ontrary to the majority's suggestion, the people of the States need not point to any affirmative grant of power in the Constitution in order to prescribe qualifications" for their members of Congress. Thomas contended that "[a]s far as the Federal Constitution is concerned . . . the States can exercise all powers that the Constitution does not withhold from them." Furthermore, "[t]he Federal Government and the States thus face different default rules: where the Constitution is silent about the exercise of a particular power--that is, where the Constitution does not speak either expressly or by necessary implication--the Federal Government lacks that power and the States enjoy it."Justice Thomas insisted that "[I]f we are to invalidate Arkansas' Amendment 73, we must point to something in the Federal Constitution that deprives the people of Arkansas of the power to enact such measures."
After the more recent appointments of Scalia, Alito and Roberts, questions about the Court's independence as an impartial, precedent-observing, judicially- restrained and non-partisan arbiter of the Constitution have become more pronounced. The apparent hostility of these three appointees, coupled with the reflexive, unabashed and well-documented hostility of Clarence Thomas to Congressional power, and the intellectual and linguistic difficulties with which Justice Kennedy appears to struggle, raise worrisome concerns about the fate of the Affordable Health Care Act and the hundreds of separate provisions, including the a personal mandate, the restrictions on denial of insurance for preexisting conditions, the Medicaid extension provisions, and the extension of family medical insurance to family dependents until their twenty-sixth birthday, that the act encompasses.
The U.S. Census Bureau reported that a record 50.7 million Americans--16.7% of the population--were uninsured in 2009. According to the Kaiser Family Foundation's report on Medicaid and the uninsured, in 2004, at which time when 44 million Americans were reported to be uninsured, uncompensated care was estimated to be $40.7 billion. Today that cost has likely doubled. In a remarkable and important book, The Great Risk Shift,Yale University Political Science professor, Jacob S. Hacker, after reviewing longitudinal studies, concluded that "Over a two year period, more than eighty million adults and children - one out of three non-elderly Americans, 85 percent of them working or the kids of working parents -spend some time without the protection against ruinous health costs that insurance offers."
The cost for medical treatment for the uninsured is borne by all of us, as taxpayers through Medicaid and by additional, pass-through assessments imposed by insurers on the healthcare insurance plans of those of us who have coverage.
If any of the lower court decisions provide guidance on the ideological world-view of the current Supreme Court's reactionary wing concerning efforts to reform health care, the decision of U.S. District Judge Henry Hudson might be informative. Judge Henry ruled that the healthcare coverage mandate was unconstitutional because Congress, based upon his narrow and unsupported interpretation of the interstate commerce class, cannot regulate what he deemed to be purely passive economic activity. In Commonwealth of Virginia v. Sebelius, 728 F.Supp.2d 768 (2010), Judge Hudson found that, "At its core, this dispute is not simply about regulating the business of insurance - or crafting a scheme of universal health insurance coverage- it's about an individual's right to choose to participate."
To arrive at this extraordinary conclusion, Judge Hudson failed to objectively apply the "rational basis" scrutiny test that federal courts have historically used to review the underlying authority of Congress to enact legislation under Article I of the Constitution. Judge Hudson accomplished this feat by verbal legerdemain: He contended that in ruling on the federal government's earlier motion to dismiss,"the Court recognized that the Secretary's application of the Commerce Clause and the General Welfare Clause appeared to extend beyond existing constitutional precedent..." Judge Hudson then proceeded to distinguish the instant case before him from the broad swath of Supreme Court precedent that, since the advent of the New Deal, has upheld the power of Congress to regulate a wide array of private economic activity based upon of its power to regulate interstate commerce. The 1964 Civil Rights Act - that outlawed racial segregation - was expressly based upon that constitutional grant of authority to the Congress.
Judge Hudson next turned his attention to a favorite target of right-wing jurists: Article I, section 8, clause 18, that expressly permits Congress to "make all laws Necessary and Proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States..." This clause, which has also been described as the "elastic clause" enables Congress enact legislation for the "General Welfare"not specifically enumerated.
Judge Hudson reasoning was a perfect non-sequitur: "If a person's decision not to purchase health insurance at a particular point in time does not constitute the type of economic activity subject to regulation under the Commerce Clause, then logically an attempt to enforce such provision under the Necessary and Proper Clause is equally offensive to the Constitution."
In his decision, Judge Hudson denied that Congress had the authority, independent of its power to regulate commerce, under the Necessary and Proper clause to enact health care reform. If his reasoning is subsequently adopted by the five equally reactionary members of the Roberts Court, the Constitution, as a document, will no longer be interpreted as a flexible, evolving instrument that can be adapted to ever-changing conditions beyond those ever envisioned or anticipated by the Founding Fathers. An increasingly rigid and narrow interpretation of the text of the constitution will do for constitutional jurisprudence what Southern Baptists, given their literal interpretation of the King James Bible, have done for the ability of Christian doctrine to evolve in the face of new, unanticipated challenges: make it obsolete. The harm to all of us as citizens, however, will be far greater.
A jurisprudence rooted in 18th century notions of individual rights and Adam Smith's economics will not help to create public policies for the 21st century. Rather, if the Affordable Health Care Act is struck down by five, unelected, unaccountable jurists, it will signal this country's continued departure from the principles of democratic governance. If Dickens' observation that "the law is a ass" is not to be confirmed, the five right-wing judges will have to sharpen their analytical tools and put aside their ideological biases.