What we require is not judicial restraint, but a different sort of judicial engagement that develops the traditions of republican government.
In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.
Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent. At the same time, because they were part of the British empire, Parliament had the right to regulate trade.
These views of law have important implications for the institution of judicial review, and for our constitutional system. Chief Justice Roberts, although he seems to be confusing taxation and regulation, seems to be following the traditional reading. For the older, teleological view of law had important implications for the separation of power and judicial review.
Judicial review was not entirely new in America after 1776. The idea of courts deeming some acts of Parliament unconstitutional went back at least to the time of Edward Coke’s decision in Dr. Bonham’s Case (1610). Dr. Bonham was a Cambridge and Oxford trained physician who practiced medicine in London. London’s College of Physicians, which Parliament had granted a monopoly over the practice of medicine in London, first fined, and then imprisoned Dr. Bonham for practicing in London without their approval. The case went to court, where Chief Justice Coke ruled for Dr. Bonham, arguing that Parliament could not have meant to delegate such power to the College:
in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: or when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.
Coke’s language reflects a particular understanding of law, and of the role of courts. He argues that the common law may “controul” an act of Parliament, rendering it void. Coke did not assume that Parliament passed laws, and left it to the court to decide if Parliament had the right to pass such a law. Instead, he presumed that Parliament tried to act within the confines of the law. Coke quoted one precedent saying “Herle said some statutes are made against law and right, which those who made them perceiving, would not put into execution.” Looking at a statute that appeared to make the College of Physicians judge in its own case, Coke presumed that Parliament could not possibly have meant that. Hence that provision of the statute was “void.” Like Queen Elizabeth in Shakespeare in Love, who, despite the self-evident fact that a woman had appeared on stage, claims that she did not see a woman on stage, the Court refused to see that Parliament had passed an arbitrary act. Instead, it construed the law so that it did not delegate to the College of Physicians the right to be judge in its own case. Interestingly, William Blackstone, whose Commentaries on the Laws of England came out in the second half of the 1760s, suggested that Parliament could, in fact, make someone judge in his own case. According to Blackstone, Parliament’s power had no constitutional limits. The Whigs who made the American revolution never accepted that turn. They rejected Blackstone’s argument, and the modern idea of sovereignty that came with it.
One can make a case that Chief Justice Marshall’s ruling in Marbury v. Madison followed a logic that was similar to Coke’s in Dr. Bonham’s case. Surely, Congress did not mean to give the Supreme Court original jurisdiction where the Constitution did not allow it. Hence, his ruling states, “an act of the Legislature repugnant to the Constitution is void.” That ruling built upon higher principles. Marshall connected it with the nature of our regime. To be sure, the turn from an unwritten to a written constitution was an important change, but there were also important similarities. He continued, “This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society.” When the people ratified the Constitution, they created the supreme law of the land. When the Court defers to the Constitution, it is deferring to the people, in their highest lawmaking capacity.
That’s a different view than many have of judicial review. Some believe that deciding what is constitutional is the job of the Supreme Court, and only the Supreme Court, as I noted in a previous post. That idea is hard to reconcile with judicial deference to the legislative branch, for if the legislature does not think it can or should think about what powers it does and does not have, then someone else must. Some lawyers even tell me that the law is whatever a Court says it is. That is not how Coke understood it, nor is it how Marshall or just about anyone in the founding era saw it. If the law is whatever judges say it is, then we have a government of men, not of laws.
That brings us to Chief Justice Roberts. As his ruling shows, he understands that there are many cases in which the Court cannot simply call balls and strikes, for law is inescapably political. His exercise of judicial review in the Obamacare case seems to follow the older model. To be sure, in Dr. Bonham’s case, Chief Justice Coke decided that Parliament lacked the legal authority to do what the law seemed to demand, and, therefore, that part of the law was void, as if it had not been written. Meanwhile, Chief Justice Roberts construed the law so that the individual mandate was not a fine, enacted under the federal government’s authority to “regulate commerce . . . among the several states,” but rather a tax. Working on the presumption that Congress surely would not mean to impose an unconstitutional mandate through the commerce clause, he instead found that Congress passed a tax, imposed for the purposes of covering the cost of health insurance/ health care. Note that Roberts presumed that Congress thought about what powers it did and did not have when it passed Obamacare. That, too, might be a legal fiction, for many members of Congress seem to think that there are virtually no limits to their lawmaking power. But if it’s a legal fiction, it’s an important one.
Randy Barnett argues that thanks to Roberts’s opinion “Obamacare is a tax because the Supreme Court rewrote the law to make it one.” A gentler construction would be that the Court construed it as a tax. The Court obviously does not have the legal authority to rewrite the law, but it does have the legal authority to construe the law in a manner consistent with the Constitution. Barnett describes some of the implications:
Under Obamacare, millions of Americans who did not have to pay the penalty because they don’t pay any or enough income taxes were still required by law to get insurance or be a law breaker. Under the Supreme Court’s revision, they don’t. Under Obamacare, those Americans who paid the penalty but did not get health insurance were still outlaws because they disobeyed the “requirement.” Under the Supreme Court’s ruling, if you pay the tax, you’re cool with the feds.
It might be better to say that the law, as construed by the Court is a tax from which those who get health insurance elsewhere, or who have low income, are exempt. Yuval Levin (link no longer available) (who also says that the Court has “rewritten” the law) notes that the new construction of the law might have major consequences:
Decades of academic studies of the question of driving insurance coverage with penalties and incentives have found that a mandate crafted this way would have a significantly smaller effect than a mandate that was structured as a legal requirement with a penalty. . . . The basic reason appears to be that a lot of compliance with legal requirements is driven by people’s inclination to do what they are required to do by law, quite apart from the cost of breaking the law. When the imperative to buy insurance is instead presented as a choice between two options, more people will be likely to choose the cheaper option.
When the law says pay a penalty or carry insurance, law abiding citizens should carry insurance. But when the law says, pay a tax or carry insurance, law abiding citizens may, in good conscience, pay the tax if that is the less expensive of two options.
This interpretation is congruent with the humane understanding of judging that we saw in Coke. It does not understand law as a mere game of rules, not does it presume that the government is a “sovereign” in the strict sense with the right to make law in “all cases whatsoever”–as the Declaratory Act of 1766 had it. (Indeed, when the colonists read the Declaratory Act, many of them concluded that it did not include the legal right to tax colonists without their consent. To them, “in all cases whatsoever” meant all cases consistent with the Rights of Englishmen. They could not imagine that Parliament thought it held arbitrary power). Instead, it presumes that government, and the laws that operate under it, is a human thing, and, men being political animals, a political thing. Hence the way one reads or interprets a law has implications on how people will react to it–even if from the perspective of positive law there is no difference–a payment of $500 is a payment of $500. Similarly, a Court that thinks its job is to decide what the law is might behave differently from a Court that thinks its job is to construe the law in a manner consistent with the constitution.
This way of interpreting the Constitution has important implications. It presumes that Congress has a right, in fact a duty, to interpret the Constitution for itself, assessing what powers the Constitution does and does not accord to the legislative branch. If Congress has no right to decide what the Constitution means, then the Court has no right to presume that bills passed by Congress are constitutional. Only if Congress thinks seriously about what are and what are not constitutional powers, may the Court defer to the legislative branch’s judgment about the constitutionality of a bill.
Ultimately, and ironically, Roberts’s approach implicitly diminishes the Court’s role in our system. By highlighting the degree to which it is the job of the people’s representatives to determine the meaning of the Constitution, it reduces the Court back to its proper role, as one equal branch (or perhaps not quite equal branch–one gives deference to a superior, not to an equal) of the federal government. At the same time, it might suggest that the Court will be, in the future, a defender of the people’s right to self government, for deference to the people’s representatives is built upon that assumption.
Roberts’s approach, with its focus on the primacy of the people’s representatives as the lawmakers, points to a willingness of the Court to defend the law-making authority of the legislative branch against the administrative bureaucracy which has an ever-growing tendency to make law. What justifies deference to the legislative branch if not the presumption that the people’s representatives are the duly appointed lawmakers in our system? The logic that justifies deference to the legislature does not justify such deference to administrative rule-making. When laws are made by unelected experts, who have tenure for life, that is aristocracy. And in America, the people are supposed to rule Surely, the legislature did not mean to imply otherwise.