Except for burying the lead
on page 2 of his statement, last week’s decision by Chief Justice John Roberts
and four other judges on the Supreme Court to not stop Obamacare was impeccable
television news. It happened in one place, on time, and mid-day. It looked like
one sane man was making history.
The big story is more complex
and scarier.
Half of America’s elected
leadership—congressional and state Republicans—asked five lawyers to legislate
their political vision for the future of a universal social service, over one
sixth of the US economy. Rather than try to sweep the fall elections with the
proposition that health reform should be turned over to the states holus bolus,
they asked five judges to enshrine that proposition in the US constitution.
Reformers are wondering
whether five judges are really enough, whether a super-majority would be best, whether
judges should be retired well before they're too old to absorb new, complex ideas.
Conspiracy theorists and pop psychologists wonder about Roberts' motives. Was he
actually worried about what others might think?
Jamal Greene in the New York Times makes a compelling case
for term limits along Canada’s lines, and David Dow in the Daily Beast outlines a number or legislative measures to explicitly
limit the Supreme Court’s powers.
These reforms, however, will
likely have to wait until after the bigger problem is addressed. It’s become
reflexive for American conservatives to turn to the US constitution, as written
in 1787, to settle arguments with their political opponents.
The point of contention before
the Supreme Court was not about infringing the freedoms of individuals. The 26
state Republican supplicants were speaking for the prerogatives of state
governments. They were saying that on
the issue of health insurance and free riders, reformers must not go to
Washington for a solution.
They can debate their
ideas in Mississippi and Massachusetts but not, all at once, across America in
a nation-wide election.
There is great merit to the
argument that the states are underperforming as instruments of social reform.
However, using a constitutional court to prevent the federal government from
solving social problems the states can’t or won’t fix is a radical challenge to
America’s popular democracy.
The American and Canadian
federations have bills of rights to protect individuals from ruthless and
careless majorities. We don’t ask individuals to wait for popular remorse to
correct popular government excesses. That’s the best reason for having accessible independent
courts.
However, American conservatives
as well as liberals should re-acquaint themselves with an old fashion conviction
about their old federal democracy: the electorate and its representatives will,
in good time, get around to correcting excessive federal interference—and
passivity—in the federal government’s dealings with other democratically
elected governments.
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