Ever since Obamacare was first proposed, critics voiced their concern that it was unconstitutional. But the left wing fanatics pushed it through despite widespread public opposition, just barely getting their political victory. Now that a federal judge has ruled that it’s unconstitutional, the question can no longer be ignored, as it was when Nancy Pelosi, then Speaker of the House, refused to answer a reporter’s question as to where in the Constitution was Congress given such power. Now, the process of determining constitutionality must go forward.
In testimony before the Senate Judiciary Committee, both sides have put forth their arguments to see if they will float. But while those attacking the bill’s constitutionality used a strategy of appealing to the fundamental principles of limited government and individual freedoms, those defending it used the tactical shotgun effect of bringing up every interpretation or application of laws they could think of that might be construed to prove their point. Those arguments came like frothy waves, tossed up in quick succession in order to keep their position afloat long enough to be considered viable. Realistically, their position is so full of holes that the eventuality of its sinking is assured, despite all their frothy spewing.
That is, if the Constitutional question is determined by what the Constitution actually says.
But that isn’t guaranteed. Much of legal argument isn’t about principle at all, but about technicalities. While most people look to the law for justice and an affirmation of right over wrong, lawyers don’t. They just want to win their case and will argue it any way that might win. Given the competent performance of the lawyers, it’s up to the judge to make the determination. But that determination is as much a product of the judge’s own legal philosophy as it is the “law”. A conservative judge may declare a law unconstitutional if it goes beyond the “original intent” of the framers of the Constitution. A Liberal judge may declare a law unconstitutional that was approved by millions of voters because it violates the current, popular interpretation of the Constitution. Either the Constitution means what it says or it may be understood through a framework of functionally-driven doctrines. Which will it be?
The process lawyers use to argue their points of law is to jockey for position to bend the judge’s ear. They try to convince the judge of their particular perspective in what is often the most crucial aspect of deciding a case. And those who argue that Obamacare is Constitutional demonstrate the adage, “The Law is an ass.” by their use of language that appeals to the most noble ideals of jurisprudence, while in effect arguing for increased government powers and the loss of personal freedoms. They remind me of a court show I saw on TV, in which a woman was suing her neighbor for painting a section of her fence. The defense argued that painting the woman’s fence didn’t constitute damage. But the plaintiff said her neighbor had no right to paint it because it was her fence, on her property. It’s up to the judge to decide which point of law applies.
As to the Constitutionality of Obamacare, will the actual text of the Constitution be used to hold the law to account? Or will doctrines based on legal precedent, however interpreted, however applied, muddy the waters to such an extent that what seems to some noble in character will justify the most egregious mistreatment of everyday Americans? Since our government is supposed to be of the people, by the people and for the people, perhaps the ultimate question should be who do you respect more, the people or the “Law”?
John Adams described us as “a nation of laws, not of men”, meaning our system shouldn’t permit the tyrannical perversion of the courts, such as was seen when King Henry VIII had Thomas More beheaded because he refused to support the King’s divorce of Catherine of Aragon and his break from the Roman Catholic Church. When respecting the law, it is vital to consider the source, the authority for that law. In our country, the Constitution is the “supreme law of the land”, as put forth in Article VI. We should remember that the “laws of the United States which shall be made in pursuance thereof” need to conform to the Constitution in every way. The Congress doesn’t have the power to make new laws that change the meaning of the Constitution. In fact the Congress doesn’t have the power to even amend the Constitution without the ratification of 3/4ths of the States’ legislatures. It is not so much the “law” that deserves our obeisance, but the mother of the law, the Constitution.
It remains to be seen whether our highest court will answer this question with wisdom or folly.