Exclusive: The U.S. Supreme Court went to the brink of striking down a major act of social legislation for the first time since the New Deal before being pulled back by Chief Justice John Roberts. But he still gave right-wingers a consolation prize by enshrining into legal precedent their false founding history, writes Robert Parry.
By Robert Parry
U.S. Supreme Court Chief Justice John Roberts is getting praise from some quarters – and condemnation from others – for judging the 2010 health-care law constitutional, but in doing so Roberts also established, now as a constitutional principle, the false historical analysis that has long dominated right-wing legal circles.
Although giving the Affordable Care Act a thumbs-up by citing Congress’ taxing authority, Roberts gave a thumbs-down to Congress’ reliance on the Commerce Clause to justify the law’s legality. In that part of his ruling, Roberts, in effect, rewrote the nation’s founding document, second-guessing the Framers’ decision to grant Congress sweeping power to regulate interstate commerce.
In Roberts’s decision, you find references to the faux founding history that the Right has been assembling over the past several decades, including “research” funded by right-wing billionaires such as the Koch Brothers, who have bankrolled libertarian think tanks like Cato and academic centers at places such as George Mason University.
While the American Left has largely sat on the sidelines, the Right has been busy cherry-picking a few quotes here and there from the Framers to turn the likes of James Madison (the Constitution’s chief architect) into free-marketeers who wanted a weak federal government and believed fervently in states’ rights.
Roberts, like the other four right-wing justices on the Supreme Court, was born and raised professionally in this incubator of manufactured history – and that “group think” colored his legal “reasoning” in striking down the Commerce Clause as a constitutional foundation for the Affordable Care Act.
So, for instance, you have Roberts making the obligatory right-wing reference to Madison’s Federalist Paper No. 45, in which Madison sought to play down how radical a transformation, from state to federal power, he had engineered in the Constitution.
Rather than view this essay in context – or even note Madison’s expressed enthusiasm for the Commerce Clause in No. 45 – the Right seizes on Madison’s rhetorical efforts to deflect the Anti-Federalist attacks by claiming that some of the Constitution’s federal powers were contained in the Articles of Confederation, albeit in far weaker form.
In Federalist Paper No. 45, entitled “The Alleged Danger From the Powers of the Union to the State Governments Considered,” Madison wrote: “If the new Constitution be examined with accuracy, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union, than in the invigoration of its ORIGINAL POWERS.”
Today’s Right also trumpets Madison’s summation, that “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.”
But the Right generally ignores another part of No. 45, in which Madison writes: “The regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose, and from which no apprehensions are entertained.” (In his ruling, Roberts did mention this line from Federalist Paper No. 45, however, he spun Madison’s meaning into a suggestion that the Commerce Clause should never contribute to any controversy.)
The Constitution’s Power Grab
The Right also dances around the context of the Constitution itself. It was the greatest shift of power from the states to the federal government in American history, but the Right never wants to admit that fact.
The Constitution can only be understood in contrast to what it replaced, the Articles of Confederation. That original governing framework (from 1777 to 1787) failed the nation because it made the states sovereign and independent and left the federal government weak and dependent, essentially a supplicant begging the states for resources.
Madison and his Virginian ally, General George Washington, were among the earliest to understand the profound flaws of the Articles of Confederation. Washington’s experience was perhaps the most searing since he watched his Continental Army suffer from lack of supplies and shortage of pay because states reneged on promises to fund the central government.
After the Revolutionary War, key Founders also recognized that U.S. independence was endangered by how weak the federal government was under the Articles of Confederation. One particular concern was how European powers tried to play off one state or region against another through the manipulation of commercial relations.
This threat – and the need for a more coordinated policy toward national commerce – gave rise to Madison’s idea of giving the central government control over interstate commerce, a proposal that Madison first raised as a possible amendment to the Articles of Confederation.
Madison “sponsored a resolution instructing Virginia congressmen to vote to give the federal government the authority to regulate commerce for twenty-five years,” wrote Chris DeRose in Founding Rivals.
Madison’s resolution won the support of General Washington, who wrote to Madison, saying: “The [commerce] proposition in my opinion is so self evident that I confess I am at a loss to discover wherein lies the weight of the objection to the measure. We are either a united people, or we are not. If the former, let us, in all matters of a general concern act as a nation, which have national objects to promote, and a national character to support. If we are not, let us no longer act a farce by pretending it to be.”
Though Madison’s amendment failed, he kept the idea alive as part of a more drastic scheme to consolidate power in the hands of the federal government through a constitutional convention.
On Dec. 9, 1785, Madison wrote to fellow Virginian James Monroe that “It is more probable that the other idea of a convention of commissioners from the states for deliberating on the state of commerce and the degree of power which ought to be lodged in Congress, will be attempted.” [See DeRose’s Founding Rivals.]
Rewriting the Rules
When that day arrived in spring 1787 – with a convention called in Philadelphia to amend the Articles of Confederation – Madison unveiled his radical alternative, not simply some modifications to the Articles but an entirely new system that wiped away the Articles’ language about the “independence” and “sovereignty” of the states.
On May 29, 1787, the first day of substantive debate at the Constitutional Convention, a fellow Virginian, Edmund Randolph, presented Madison’s framework. Madison’s Commerce Clause was there from the start, except that instead of a 25-year grant of federal authority, the central government’s control of interstate commerce would be permanent.
Madison’s convention notes on Randolph’s presentation recount him saying that “there were many advantages, which the U. S. might acquire, which were not attainable under the confederation – such as a productive impost [or tax] – counteraction of the commercial regulations of other nations – pushing of commerce ad libitum – &c &c.”
In other words, the Founders – at their most “originalist” moment – understood the value of the federal government taking action to negate the commercial advantages of other countries and to take steps for “pushing of [American] commerce.” The “ad libitum – &c &c” notation suggests that Randolph provided other examples off the top of his head.
Historian Bill Chapman has summarized Randolph’s point as saying “we needed a government that could co-ordinate commerce in order to compete effectively with other nations.”
So, from the very start of the debate on a new Constitution, Madison and other key Framers recognized that a legitimate role of the U.S. Congress was to ensure that the nation could match up against other countries economically and could address problems impeding the nation’s economic strength and welfare.
Through the hot summer of 1787, the Convention delegates debated Madison’s plan, amid the give-and-take of compromise, reining in a few of Madison’s most radical ideas. Contrary to the Right’s current propaganda, Madison actually favored even a more powerful central government than the Convention eventually adopted.
Madison wanted Congress to have veto power over state laws, a provision that was dropped though federal statutes and treaties were made “the supreme law of the land” and thus federal courts could strike down state laws that were deemed in violation.
Despite some concessions, the Constitution emerged from the secret meetings in Philadelphia as a stunning assertion of federal power – a reality not lost on some influential politicians who favored a continuation of the states’ “independence” and “sovereignty” that were explicitly recognized by the Articles of Confederation, but which disappeared in the Constitution.
Anti-Federalists correctly recognized what had happened and soon rallied strong opposition to the new governing framework. As dissidents from the Pennsylvania delegation wrote: “We dissent … because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government.”
As resistance to Madison’s federal power-grab spread – and as states elected delegates to ratifying conventions – Madison feared that his constitutional masterwork would go down to defeat or be subjected to a second convention that might remove important federal powers like the Commerce Clause.
So, Madison – along with Alexander Hamilton and John Jay – began a series of essays, called the Federalist Papers, designed to counter the fierce attacks by the Anti-Federalists against the broad assertion of federal power in the Constitution.
Madison’s strategy was essentially to insist that the drastic changes contained in the Constitution were not all that drastic, an approach he took both as a delegate to the Virginia ratifying convention and in the Federalist Papers. But Madison also touted the advantages of the Constitution and especially the Commerce Clause.
For instance, in Federalist Paper No. 14, Madison envisioned major construction projects under the powers granted by the Commerce Clause.
“[T]he union will be daily facilitated by new improvements,” Madison wrote. “Roads will everywhere be shortened, and kept in better order; accommodations for travelers will be multiplied and meliorated; an interior navigation on our eastern side will be opened throughout, or nearly throughout the whole extent of the Thirteen States.
“The communication between the western and Atlantic districts, and between different parts of each, will be rendered more and more easy by those numerous canals with which the beneficence of nature has intersected our country, and which art finds it so little difficult to connect and complete.”
What Madison demonstrated in No. 14 was a core reality about the Founders – that, by and large, they were practical men seeking to build a strong and unified nation. They also viewed the Constitution as a flexible document designed to meet America’s ever-changing needs, not simply the challenges of the late 18th Century.
Twisting the Facts
But today’s Right will never accept facts and reason if they go against a desired propaganda theme. The outcome comes first and the rationale is assembled later to support the desired conclusion. Then, the faux history is packaged and distributed through the Right’s multi-billion-dollar media infrastructure.
Thus, many Americans think they are defending the nation’s founding principles when they buy tri-corner hats at a costume store, unfurl their “Don’t Tread on Me” flags, and denounce the evils of “guv-mint.” They insist that the last thing the Founders would permit would be a “mandate” to buy a private product.
However, the Right again shuns history, such as the fact that the Second Congress, which included Madison and many other Founders, passed the Militia Acts mandating that every white male of military age must purchase a musket and related supplies. The law was signed by George Washington, another Founder. [See Consortiumnews.com’s “The Founders’ Musket Mandate.”]
In striking down the Commerce Clause as a justification for the Affordable Care Act, Roberts also parroted the Right’s propaganda line that it is not commerce when an American chooses not to buy health insurance. However, that ignores the fact that virtually every American is involved in the commerce of medicine from birth and reenters that “market” periodically, especially near the end of life.
The failure of some people to obtain health insurance, to essentially choose to self-insure, is still part of the larger commerce of medicine, which operates across state lines and thus is within the congressional power to regulate interstate commerce.
Yet, Roberts joined his right-wing colleagues in saying that the Commerce Clause only allows regulation of “existing commercial activity” and that the insurance mandate “compels individuals to become active in commerce by purchasing a product,” a principle that Roberts said could lead the federal government to require other mandatory purchases.
However, Justice Ruth Bader Ginsburg, writing for the four more liberal justices, noted the fallacy of Roberts’s argument. “Unlike the market for almost any other product or service,” she wrote, “the market for medical care is one in which all individuals inevitably participate.”
In the end, Roberts found a way to square his right-wing ideology with his concern that a five-to-four partisan vote to strike down a major piece of social legislation — for the first time since the 1930s — would damage public faith in the Supreme Court.
But he delivered a consolation prize to his right-wing compatriots by essentially rewriting the Constitution’s Commerce Clause, which has been a bête noire to the Right since the days of Franklin Roosevelt’s New Deal and the Civil Rights Era of the 1950s and 1960s.
More intellectually honest conservatives recognized the historical reality that the Framers intended the Commerce Clause to be a power limited only by the political will of the elected branches.
For instance, a legal opinion written by conservative U.S. Appeals Court senior judge Laurence Silberman affirmed the constitutionality of the Affordable Care Act on Nov. 8, 2011. Silberman, an appointee of President Ronald Reagan, explained how the law – including the individual mandate – fit with the Commerce Clause and prior legal precedents.
“We look first to the text of the Constitution,” Silberman wrote in his opinion. “Article I, § 8, cl. 3, states: ‘The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.’ (Emphasis added by Silberman).
“At the time the Constitution was fashioned, to ‘regulate’ meant, as it does now, ‘[t]o adjust by rule or method,’ as well as ‘[t]o direct.’ To ‘direct,’ in turn, included ‘[t]o prescribe certain measure[s]; to mark out a certain course,’ and ‘[t]o order; to command.’
“In other words, to ‘regulate’ can mean to require action, and nothing in the definition appears to limit that power only to those already active in relation to an interstate market. Nor was the term ‘commerce’ limited to only existing commerce. There is therefore no textual support for appellants’ argument” that mandating the purchase of health insurance is unconstitutional.
(In Roberts’s ruling, the Chief Justice arbitrarily decides that certain definitions for “regulate” — such as “[t]o order; to command” — can be thrown out because they were not among the top definitions in the dictionaries of the late 18th Century. Roberts wrote, “It is unlikely that the Framers had such an obscure meaning in mind when they used the word ‘regulate.'”)
Silberman’s opinion also examined decades of Supreme Court precedents that affirmed the power of Congress to establish regulations over various national markets.
“Today, the only recognized limitations are that (1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and (2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible,” Silberman wrote.
Neither limitation applied to the health-care law, Silberman noted, because medical insurance was an economic activity and had sizable interstate implications.
As for the claim that people had a constitutional right not to participate in the purchase of health insurance, Silberman was not persuaded. For instance, he cited a Supreme Court precedent that a farmer who wished to raise wheat for his own consumption could still face federal restrictions because his production (and that of other likeminded farmers) could affect the overall supply of wheat and thus undermine federal policy regarding the wheat market.
Silberman also recognized Congress’s power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts call “substantial effects.”
“The shift to the ‘substantial effects’ doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce,” Silberman wrote.
“Its very premise is that the magnitude of any one individual’s actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce. …
“It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.
“Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence.”
Silberman wrote that “Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services – as rather useless as that would be – is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce.”
Silberman acknowledged that “the Supreme Court occasionally has treated a particular legislative device’s lack of historical pedigree as evidence that the device may exceed Congress’s constitutional bounds,” but added that “we are obliged – and this might well be our most important consideration – to presume that acts of Congress are constitutional” absent “a clear showing to the contrary.”
Ultimately, Chief Justice Roberts sought to split the decision, adding new limits on the Commerce Clause but finding a way to sustain the constitutionality of the act by citing a back-up justification in the congressional power to tax.
In that way, Roberts may deserve praise for a judicious choice, backing away from another instance in which the Supreme Court injected itself into ideological and partisan battles. But he has now enshrined the Right’s bogus history of the Constitution into judicial precedent.
To read more of Robert Parry’s writings, you can now order his last two books, Secrecy & Privilege and Neck Deep, at the discount price of only $16 for both. For details on the special offer, click here.]
Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Neck Deep: The Disastrous Presidency of George W. Bush, was written with two of his sons, Sam and Nat, and can be ordered at neckdeepbook.com. His two previous books, Secrecy & Privilege: The Rise of the Bush Dynasty from Watergate to Iraq and Lost History: Contras, Cocaine, the Press & ‘Project Truth’ are also available there.