Neither Left nor Right but Catholic

     The U.S. Supreme Court’s decision on the health care law is probably a disappointment to many readers of this column. One of the things many people are scratching their head about—and some expressing something like a feeling of betrayal—is why Chief Justice Roberts joined the majority. Obviously, I cannot “get into Roberts’ mind” to answer that question. One writer speculated that Roberts made the decision he did to protect the integrity of the Court as a non-political institution. Perhaps, but with half or more of the American public against the law it does not seem as if the Court would have suffered much damage to its reputation if it had decided the other way. The Court could hardly have been said to be going against a new national political consensus as scholars often observe about the Court when it struck down much of the First New Deal’s legislation. Moreover, the claim in Roberts’ opinion that the penalty imposed on individuals who fail to buy health insurance is really a tax (the “individual mandate”), in spite of the Obama administration’s persistent refusal to call it that, is a bit of a stretch.

     Another commentator said that the decision shows that conservatives (by which he probably meant both those opposed to current leftist policy schemes and those wanting to restore limited government) can’t rely on the Court. That’s true in part, and untrue in part. It’s true if one means that the Court should not be expected to enter the policy thicket—to promote the agendas of either left or right. After all, that’s been a conservative principle for some decades now. It was also a major point made in Roberts’ opinion. It is untrue, however, if it means turning away in disillusionment from the Court as a defender of fundamental American constitutional principles. In fact, what may be needed more than ever—and the siren call and needed analysis should be provided by conservative legal scholars—is a proper kind of judicial activism. As I have long said, I am against judicial activism when it means imposing as constitutional mandates ersatz rights such as abortion, sodomy, and same-sex “marriage.” I am for judicial activism if it means upholding our true constitutional tradition and the natural law principles that undergird it.

     At the same time, when one says that the Court should not seek to further a policy agenda, that doesn’t mean that it has no political role. Federalist 78 says the courts are “an essential safeguard against the effects of occasional ill humors in the society” and “serve to moderate the immediate mischiefs” of laws which have been passed. They must also act “as a check upon the legislative body in passing them.” This means, in part, that the courts have the role—which is intrinsic to the notion of limited and republican government—to restrain the democratic impulse. Federalist 78 talks further about the courts “mitigating the severity and confining the operation” of “unjust and partial laws” especially but not only when rights are at stake. That suggests that, while as a rule the courts cannot second-guess the wisdom of elected representatives (as Roberts said), if an action of a political majority—in the health care law, it was just majority of Congress, not even the public—is clearly threatening now or prospectively to the common good (e.g., the serious economic burden that the health care law portends for the federal government) and destructive of rights (e.g., not just the likely prospect of rationing of care that would violate the right to life—the most basic right—but of undercutting parental rights to control their children’s health care) the Court could overturn it. Wouldn’t that clearly fit the “moderating” role suggested by Federalist 78?

     The Court didn’t need to view itself as playing such a moderating role to have a rationale for striking the health care law, however. It is virtually certain that the law will accelerate—perhaps in an unprecedented way in the domestic policy area—the centralization of power in the federal government. If the Constitution stands for anything it is that the federal government is one of limited powers, and that it is erected on the foundation of a federal system. If some “conservative” legal scholars and justices (like Roberts?) believe that to aggressively uphold this is insufficiently deferential to Congress or unallowable judicial activism, then maybe they have to rethink their aversion to judicial activism. Certainly deference to Congress—as good as it is generally—cannot be allowed to trump the fundamental anti-centralization principle of the Constitution. Also, what about the utter vagueness of so much of this 1700-page law? Couldn’t Roberts have seen his way to declaring it unconstitutional under the Court’s “void for vagueness” doctrine?

     Perhaps Roberts was concerned—as diligent conservative, “constitutionalist” judges tend to be—that he could not enunciate a definite principle that could be consistently applied if he ruled against the health care law. For example, might he have wondered how he could have voted to uphold Congress’s “partial-birth” abortion ban in Gonzales v. Carhart, but not the health insurance law as an appropriate exercise of federal authority and restraint on individual freedom. Consistency is not the ultimate virtue, however, nor can it be adhered to in a fundamentalist kind of way. A good judge and a good statesman know that constitutional principles can’t be asserted in a manner that is oblivious to the circumstance at hand, that it’s wrong to claim they can’t adapted to any degree at all, and that they are disconnected from prudential judgment. After all, the error of the French Revolutionaries—inspired by an embracing, with abandon, of the thinking of the Enlightenment—was that political and social principles apply rigidly and universally without regard to the condition of a people, their traditions, their experience, or their history. Constitutional principles must be treated as the social teachings of the Church are. The natural law operates and there are clear pertinent moral principles, such as subsidiarity, the right to a just wage, etc. Still, there rightfully will be prudential judgments: How does subsidiarity apply in a particular case? What is a just wage given this or that economic condition?

     Actually, if he was so concerned about consistency, wasn’t Roberts inconsistent in his apparent concern about deference to Congress when he held that the law couldn’t be justified under the interstate commerce clause and when he struck down the Medicaid mandate as a violation of federalism? Couldn’t federalism also be violated by his broad reading of Congress’s power to tax and spend for the general welfare?

     There can be little doubt, say, that Congress can attach conditions to the giving of federal tax funds to the states. However, as I have shown in my book The Transformation of the American Democratic Republic, one of the major factors eroding federalism in the twentieth century was federal grants-in-aid programs. Is it unreasonable or against a sensible notion of judicial restraint for the Court at some point to say, “enough is enough”— even if to do so is inconsistent with its prior rulings and against its usual standard on such matters? After all, if the basic federal and anti-centralization principles of the Constitution are dangerously eroded by such a practice—even if the states themselves have been willing accomplices—isn’t that ground enough to decide at some point to erect a firewall?

     Those concerned about limited government and such basic constitutional principles as federalism and individual and family liberty definitely should not abandon the Court—in spite of all that it’s done since the New Deal to compromise them. As mentioned, we need to push for a correct notion of judicial activism that not only further restrains the open-ended notion of Congressional power under the interstate commerce clause and forges a realistic view of federalism—even if it means some inconsistency—and also restores a broad notion of individual, family, and organizational liberty. This is especially an imperative in an age of intensifying government regimentation of ever more areas of our lives. This does not mean laissez-faire, to be sure, but a view that recognizes that while man is a communal creature he is also able to be reasoned and responsible. He does not have to be routinely managed and manipulated by forces from above. From a constitutional standpoint, this should involve even pushing for a transformed right of privacy. Instead of the courts’ narrow and concocted notion of sexual and reproductive privacy, we need to return to a traditional notion of family privacy and repudiate the neo-Calvinist kinds of monitoring of people in non-essential things or those that they can legitimately make their own choices about. Legislative bodies—aided by government bureaucracies—are the ones adding the regulation and influencing them has become increasingly difficult for the average citizen in a time of high-powered lobbying machines and mass politics. Far from abandoning the courts and regardless of their spurning of individual choice in the health care case, it’s time to turn to them in a renewed and intensified way.

Stephen M. Krason is Professor of Political Science and Legal Studies at Franciscan University of Steubenville and Co-Founder and President of the Society of Catholic Social Scientists. His latest book is The Transformation of the American Democratic Republic (Transaction Publishers, 2012).