Did the Founding Fathers Really Intend a Right of Insurrection?

In the wake of the Newtown school shootings many groups have proposed stricter regulations on certain types of guns and ammunition.  Just as predictably, the NRA and its allies have trotted out the argument that unrestricted gun ownership is the only thing protecting us from government tyranny.    According to Wayne LaPierre of the NRA:

I think without any doubt, if you look at why our founding fathers put (the Second Amendment) there, they had lived under the tyranny of King George and they wanted to make sure that these free people in this new country would never be subjugated again and have to live under tyranny.

According to a letter to the editor in today's Austin American Statesman:

The Second Amendment was not written to address hunting, sports or the type of firearms a citizen could own; it was specifically written to allow citizens to bear arms to defend themselves against tyranny in government. . . . I will surrender my automatic firearms and high-capacity magazines when the government surrenders theirs.

Did the founding fathers really intend to create a system in which armed citizens could use force of arms to veto any government actions they considered to be "tyrannical"?   The answer is emphatically no.   When disgruntled farmers took up arms in 1787, James Madison, who would later author the Second Amendment called it "treason."    John Hancock, who was then governor of Massachusetts gave orders for the militia to"kill, slay and destroy, if necessary, and conquer by all fitting ways, enterprises and means whatsoever, all and every one of the rebels." When the Whiskey Rebellion broke out in 1794, President George Washington mobilized troops from state militias to put down the rebellion.   The actions of the founding fathers clearly indicate that they did not think that insurrection was such a good idea once they were in power.   

On the other hand, the language of the Second Amendment speaks of an individual right to bear arms and Madison promoted the Second Amendment as a protection against government overreach.  So, what gives here?   Were the founding fathers hypocrites or is there a bigger picture that weaves together these contrasting narratives?   I will argue here that an understanding of the role of the militia is critical to understanding the Second Amendment.

The American Colonists and the Militia

Under British rule, the American colonies were part of an economic system known as mercantilism.   The colonies existed to export raw materials to the mother country and to purchase finished products in return.  While the colonists were British citizens, the laws governing them were made by parliament and executed by the King.   In this system, the British troops were there to protect the interests of the mother country.  They made sure that the will of parliament, the King and the royal governors was carried out.  Self-defense, on the other hand, was left to the militia.   The militia consisted of every able-bodied male and was under the control of the local authorities.   The militia was a military of the people, but it was an organized group with officers responsible to the local authorities.    

As long as the crown and the colonists got along, these two forces would serve complimentary purposes.   However, as we know, relationships between the colonists and the mother country did not go well.   After the French and Indian War, parliament decided that the colonies should pay for the cost of keeping British troops on their soil.   They also sought to prevent direct trading with the British possession in the Caribbean in order to protect the British interest in the mercantile system.  These decisions hit the colonists in the pocket book and promoted the cry of "no taxation without representation."   

As the colonists moved beyond letter writing to acts of civil disobedience such as the Boston Tea Party, the Crown became worried that the militia (that is, the armed and organized citizenry) could be turned against them.   The British sent 700 Redcoats to attempt to secure the supplies of the Massachusetts militia at Concord.   This led to Paul Revere's famous ride and the Battles of Lexington and Concord, as well as the start of the American revolution.

The Constitution and the Militia

After the revolution, the former colonies banded together under the Articles of Confederation.   The Confederation relied on an intentionally weak central government.   When Shay's Rebellion broke out in 1786, the national government did not have any money to send troops.  As a result, Boston merchants had to pay for the arming of a private militia out of their pockets.    

When the Constitution was proposed in 1787, it included a stronger national government and authorized a standing national army.   It also gave Congress the power to call out the militia to "execute the Laws of the Union, suppress Insurrections, and repel Invasions" and allowed Congress to organize, arm and discipline the militia.   The states were given the power to appoint officers for the militia and provide for their training.   

In the Federalist No. 29, it was argued that the militia was necessary for the common defense and would reduce the need for use of the national army.

 Of the different grounds which have been taken in opposition to the plan of the convention, there is none that was so little to have been expected, or is so untenable in itself, as the one from which this particular provision has been attacked. If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions. If the federal government can command the aid of the militia in those emergencies which call for the military arm in support of the civil magistrate, it can the better dispense with the employment of a different kind of force. If it cannot avail itself of the former, it will be obliged to recur to the latter. To render an army unnecessary, will be a more certain method of preventing its existence than a thousand prohibitions upon paper. 

On the other hand, Madison did suggest that the militia could be a counter-force to an oppressive federal government. 

The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.

Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. 

Federalist No. 46.

The Adoption of the Second Amendment

Adoption of the Constitution was by no means certain.   By 1788, eight states had ratified the Constitution and four seemed unlikely to go along.   That left Virginia as the deciding state.   In Virginia, James Madison was the chief supporter of the Constitution, but was opposed by George Mason and Patrick Henry among others.    

In Virginia, one concern raised by Patrick Henry was that Congress would use its power to arm the militia to keep them unarmed.    This, in turn, would allow the increasingly abolitionist North, to subvert the slave system in the South.   As stated by Prof. Carl Bogus, "The militia were the last and best defense against slave insurrection but practically useless against a professional army."   Indeed, the Virginia militia had distinguished itself during the revolution by running away without ever firing a shot at the Battle of Camden, South Carolina.

Virginia ratified the Constitution but also recommended adoption of a bill of rights, including a right to bear arms.    When James Madison ran for Congress, he was forced to support a Bill of Rights in order to be elected, even though he had previously argued that one was not necessary.  Madison's proposal that later became the Second Amendment was grammatically challenged:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

According to an article in the Military Law Review, Madison's language satisfied the political goals of assuaging the concerns of many prominent Anti-Federalists.

In resolving the arms versus militia issue, language that combined a militia statement with a recognition of an individual right fitted Madison's objectives perfectly. A militia statement standing alone likely would have been unacceptable to liberal groups such as the Pennsylvania minority, Samual Adams and his supporters, the New Hampshire majority, and possibly Jefferson himself--all of whom had advocated an individual right to arms and none of whose efforts had so much as mentioned the militia. Conversely, an individual right to arms clause, standing alone, might well have irritated supporters of the traditional militia such as George Mason and possibly Richard Henry Lee, both of whom were powerful Virginians. In addition, both were figures with whom Madison still had to deal because they would vote on his proposal--Mason as a Virginia legislator and Lee as a member of the federal Senate. By joining the two issues, Madison would be assured of broad-based support for his proposal. He naturally chose language that already had proved acceptable to both groups. "[T]he right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." 

This language finally adopted was:

A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Two things are apparent from this language.   First, the right to keep and bear arms was intended to promote the objective of maintaining a militia.   Second, one of the previously stated purposes of the militia was to put down insurrections.    

The Standing Army and the Militia

 The Militia Act of 1792 defined the militia as every "free able-bodied white male citizen"  between the ages of 18 and 45.   During the Civil War, the state militias became the basis for the Confederate Army.   In 1903, the law was changed to provide for the organized militia, which is the national guard, and the unorganized militia, which constituted of men ages 18-45.   The state guard units are under the control of their governors.   However, they can be called into national service by the president.   During the civil rights era. some Southern governors called out the guard to prevent implementation of federal laws only to have the president call the guard into national service.   As a practical matter today, the guard is simply an adjunct of the national standing army as opposed to an independent state-based military force.    

Tyranny Then and Now

One argument for the Second Amendment in the 18th Century was that it was necessary to prevent the federal government from using the national army to impose a dictatorship upon the people.    This was a legitimate fear given the experience with standing armies in Europe and our own limited experience with a standing army.    Today that seems far-fetched.    For over 200 years, the army has remained under civilian control.    Unlike many South American and African countries, the army does not overthrow the government, nor does the government use the army to impose martial law.   As a result, the original fears of the anti-Federalists have not come to pass.    

However, since the advocates of unlimited gun ownership invoke tyranny as a rationale for their position, it is reasonable to ask what tyranny would look like today and what a reasonable response would be.   Tyranny is defined as oppressive power exerted by government, a government in which absolute power is vested in a single ruler and an oppressive, harsh or unjust act.   The second definition is the only one which is objective and thus can be easily applied.   The rule of Adolph Hitler, Josef Stalin and Pol Pot would fit this definition of tyranny.   However, it is too narrow, since it fails to include collective leadership which wields unlimited power, such as in the People's Republic of China, or states such as Egypt or Venezuela where an elected leader holds overwhelming power.

Lacking a better definition, I would suggest that tyranny is the antithesis of the rule of law.  Thus, I would argue that the suspensions of the right of habeus corpus by presidents Lincoln and Bush constituted isolated acts of tyranny as was the internment of Japanese-Americans during World War II.   On the other hand, neither Obamacare nor the chronic underfunding of Texas schools by the legislature qualify as tyranny, since they were decisions made by lawfully constituted authorities subject to judicial review.  Tyranny does not mean that your candidate lost and you think the guy who did win is making really bad decisions. In the United States today, real tyranny is much more the product of films, books and the internet than reality.        

Conclusion

I think that the Second Amendment describes an individual right to "keep and bear arms."   While the reference to a well-regulated militia may illustrate its objective, it does not limit its reach.   However, there is no such thing as an unlimited right.   While the First Amendment grants you the right to free speech, you do not have the right to break down my door and shout at me through a bullhorn at three o'clock in the morning.    By the same token, your right to keep and bear arms does not give you the right to shoot me because I do not keep my yard neat or because you don't like the way that I park my car.   Taking it further, I think that Congress has the right to regulate the possession of firearms, such as by requiring background checks or limiting the size of magazines.   I completely reject the notion of a right to insurrection.   The right to keep and bear arms was intended to facilitate the existence of state militias.   One of the purposes of militias, as stated in the Constitution, was to put down insurrections.  As a result, there is no right to engage in insurrection against the government.   There is a word for that.  It is treason.

 References:

Bogus, The Hidden History of the Second Amendment, 31 Univ. of Cal. at Davis Law Review 309 (1998).

Fields & Hardy, The Militia and the Constitution:  A Legal History, Military Law Review (Spring 1992)

Hennigan, Arms, Anarchy and the Second Amendment, 26 Valparaiso L. Rev. 107 (1991) 

Obama in 2012? Reluctantly Yes

I have voted in every national election since 1980, but have never voted for the Democrat candidate for President.   Even after I became disenchanted with the Republican party, I still voted for John McCain over Barack Obama.   This time around, I may vote to re-elect President Obama for the simple reason that he has been a better president that I expected and because the Republican alternative is so unappealing.   Here is my thinking.  Please feel free to point out where I am wrong.

1.   President Obama Did Not Make the Economy Worse

It may take some effort for people to think back all the way to September 2008.    For me, it helped that I recently watched the film "Too Big to Fail," which chronicled the Bush administration's efforts to stem the complete collapse of the economy.    At one point in the movie, Ben Bernanke says, "If we do not act boldly and immediately, we will replay the depression of the 1930s, only this time it will be far, far worse."   That is where the Republican strategy of deregulation and tax cuts led us--to the brink of another Great Depression.   To their credit, the trio of Hank Paulsen, Ben Bernanke and Timothy Geithner did act boldly and immediately.   However, the economy was still teetering on the brink when President Obama took office in January 2009.   Shortly after he took office, the government stepped in to save Chrysler and GM, thus preserving millions of jobs.   Whether the president has presided over an increase or decrease in jobs depends on how you slice the numbers.   From January 2009 to June 2012, the number of jobs in the economy is down by about 400,000.   However, if you measure from September 2009 to June 2012, the economy is up 3.3 million jobs.   (I am relying on BLS statistics summarized on Wikipedia).    If you accept that the economy was in freefall in January 2009 when Barack Obama took office, the numbers certainly seem to indicate that within eight months of taking office, he began to turn things around.   

2.  Obama Care Is Not Such a Bad Thing

With all the hoopla about Obama care, you'd think it would have a major impact.   However, it seems that the worst fears have not come to pass.   There has not been a federal takeover of healthcare and the government is not rationing health care.   So far, Obama Care has had the following effects on me:   I can keep my kids on my policy until they turn 26; I don't have to worry about my younger daughter being denied health insurance because she had a heart murmur as an infant; and we received a $300 repeat from our insurance company because their administrative costs were too high.   The only effects I can see have been positive.

3.   Osama Bin Laden Is Dead

President Bush tried for seven years to bring Osama Bin Laden to justice.   President Obama succeeded in his first term.   Granted, President Obama did not lead lead the assault.   However, he did authorize it despite the fact that he knew the Pakistanis would be furious about the fact that we conducted a military operation on their territory without telling them.    The President made the difficult call and he deserves credit for it.

4.   President Obama's Mid-East Policy Is No Worse Than His Predecessors

Ever since World War II, we have struggled between supporting reliable allies and our own ideals of popular sovereignty.   Realpolitik has led us to support brutal dictators who could be counted on as allies of convenience.   To our everlasting shame, we overthrew democratically elected governments in favor of autocrats.    Thus, when the Arab Spring broke out, the President had some difficult decisions.   In Egypt, we stood behind Hosni Mubarak longer than we should have, but eventually got out of the way.   In Libya, we intervened against the corrupt Gadafi only after our European and Arab allies were willing to put some skin in the game.   On the other hand, our silence in Bahrain, where doctors were arrested for treating demonstrators, was deafening.    In Syria, I would like to see us take a more aggressive stance against the Assad regime.   However, the invasion of Iraq didn't work out so well for us.   On top of that, Assad is still supported by Russia, China, Iran and Hezbollah.    Finally, President Obama followed through on President Bush's commitment to remove our forces from Iraq.   The President's Mid-East performance hasn't  been perfect, but it has been pretty good given the hand he was dealt.

5.   Irrational Hatred Against President Obama Pisses Me Off

President Obama has been the subject of more unfounded hysteria since George W. Bush.  We are turning into a country where the lunatic fringe has been empowered like a werewolf under a full moon.   I have heard people insist with all sincerity that the President is forming a private army that will install him as dictator, that the President was going to sign a UN treaty on July 27 that would abolish private ownership of firearms and that Mr. Obama hates America based on photoshopped photos purporting to show him not placing his hand over his heart during the national anthem.  On top of that, the printer of a bumpersticker that says "2012:   Don't Re-Nig" claims that this is not a racist sentiment.  Yeah, right.    For the conspiracy theorists, all evidence as well as all lack of evidence points to the conclusion that Barack Obama is a foreign-born Muslim who hates America and wants to impose a socialist dictatorship.    Of course, if President Obama really was that bad, he would not tolerate their ravings and they would have been placed in FEMA internment camps a long time ago.  Of course, the First Amendment allows them to loudly and vehemently express their beliefs.  While I support their exercise of their First Amendment freedoms, it doesn't mean that they don't piss me off and make me want to do the exact opposite.   So there.

6.  Mitt Romney Is An Empty Suit

I don't know what the Republicans were thinking when they nominated Mitt Romney, the poster child for hypocrisy.    As governor of Massachusetts, Romney was pro-choice and designed the model for Obama Care.   Now, he is aggressively pro-life and thinks Obama Care is a threat to the continued existence of our nation.    In my mind, someone who will say anything to get elected will govern according to expediency and not according to any set of principles.   As a result, we don't know if a President Romney would be the liberal blue state governor, the tea party apostle or some new and unrecognizable persona.   Whether or not you like President Obama, at least he doesn't change his beliefs as often as he changes his underwear.

7.   Romney Doesn't Have  a Clue About the Economy

Tax cuts and de-regulation almost led us into a new Great Depression.   What does Mitt Romney propose?   Tax cuts and de-regulation.   The Laffer Curve predicted that when taxes reached an excessive point that the government could raise revenue by decreasing taxes.    However, it also predicted that when taxes dropped below the sweet spot on the curve that tax cuts would lead to a decrease in revenue.    Marginal tax rates and taxes as a percentage of gross domestic product are at historically low levels.   While I don't like paying more taxes any more than the next guy, I think we will have to raise taxes and cut spending in order to reduce the deficit.   Romney's tax cut plan is also notable for its vapidness.   Romney proposes to reduce taxes across the board while reducing loopholes to pay for it.   Of course, by loopholes, he means deductions benefitting the middle class, such as the home mortgage deduction and the charitable giving deduction.   Additionally, leading economists have concluded that eliminating all tax deductions would not be sufficient to offset the lost revenue from the proposed cuts.    Does Romney even have a plan for curbing entitlement spending?   Both candidates accuse the other one of seeking to gut social security and Medicare.    However, if we don't do something, we face national bankruptcy.    Paul Ryan's plan to replace Medicare with vouchers pegged to a nominal level of inflation (and use the savings to cut taxes) was at least a proposal.   My understanding is that Romney rejects the Ryan plan and doesn't have one of his own.      

8.   Romney Is An Out of Touch Rich Guy

Romney makes his money from capital gains and has a vacation home in New Hampshire.   I support my family by working to bring home a paycheck.    While I don't have a vacation home, my office sometimes seems like a second residence.    Romney's wife entered a $3 million dressage horse in the Olympics.   We have strays we adopted whose main talents consist of eating and sleeping.  Last year Romney earned $10 million after taxes.    It would take me about 100 years to equal that despite the fact that my earnings place me at the extreme upper end of the middle class.    Is this criticism unfair?    Possibly, but when President Obama's critics point out that he can't understand you and me because he was raised in Hawaii and Indonesia and obtained an Ivy League education before obtaining celebrity status, it's fair to look at the other guy's sympatico quotient.  I can't imagine myself drinking a beer with either one of them (of course, I don't drink beer any more so that might have something to do with it).   

Does President Obama give me a thrill up my leg?    No.    Was he my first choice this year?   No.   Will I vote for him anyway?   Probably.  

Obama, Fox News and the Social Contract

Were the commentators at Fox News asleep the day they discussed the social contract in class?  That is one explanation for the outrage voiced by Fox concerning the President's "You didn't build it" speech.    Either that or they are just piling on based on a poor choice of words.

Here's what happened.   President Obama gave a speech in Roanoke, Virginia.   He said:
 

If you were successful, somebody along the line gave you some help.  There was a great teacher somewhere in your life.  Somebody helped to create this unbelievable American system that we have that allowed you to thrive.  Somebody invested in roads and bridges.  If you’ve got a business — you didn’t build that.  Somebody else made that happen.  The Internet didn’t get invented on its own.  Government research created the Internet so that all the companies could make money off the Internet.

The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together.  There are some things, just like fighting fires, we don’t do on our own.  I mean, imagine if everybody had their own fire service.  That would be a hard way to organize fighting fires.

 The Fox folks took umbrage at that.   A headline read "Obama Insults Small Business Owners."    A press release from the Romney campaign said "OBAMA TO BUSINESS OWNERS:  'YOU DIDN'T BUILD THAT.'"     

So, did  the President say that private enterprise is worthless and that you are not worthy unless you are (in the words of a Fox News commentator I heard this morning) a community organizer or a union boss?   The answer is no.    

If you look at the rest of the speech, the President talked a lot about the importance of initiative and hard work, things that Republicans like to champion.

He said:

And what this reminded me of was that, at the heart of this country, its central idea is the idea that in this country, if you’re willing to work hard, if you’re willing to take responsibility, you can make it if you try.  That you can find a job that supports a family and find a home you can make your own; that you won’t go bankrupt when you get sick.  That maybe you can take a little vacation with your family once in a while — nothing fancy, but just time to spend with those you love.  Maybe see the country a little bit, maybe come down to Roanoke.  That your kids can get a great education, and if they’re willing to work hard, then they can achieve things that you wouldn’t have even imagined achieving.  And then you can maybe retire with some dignity and some respect, and be part of a community and give something back. 

That’s the idea of America.  It doesn’t matter what you look like.  It doesn’t matter where you come from.  It doesn’t matter what your last name is.  You can live out the American Dream.  That’s what binds us all together.  

So, did Obama give a schizophrenic speech?   Did he advocate the value of hard work and responsibility on the one hand while saying that all good comes from government on the other?   While his wording may have been a bit awkward, I understand the President to be referring to that most American of ideals, the social contract.

The social contract is a concept developed by, among others, Hobbes, Locke and Rousseau.   It postulates that men give up some of their natural liberties to come together and form governments to protect their liberties.   According to Hobbes, in the state of nature, life would be "solitary, poor, nasty, brutish and short."    According to Locke, governments drew their legitimacy from the consent of the governed.    

The social contract is firmly emphasized in America's founding documents.    The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

 The preamble to the Constitution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 These documents incorporate the social contract ideas that governments derive their powers from the consent of the governed and that they exist to "establish Justice, insure domestic Tranquility, provide for the commence defence, promote the general Welfare, and secured the Blessings of Liberty."

The free enterprise system that Fox News and Mitt Romney so strongly treasure depends on the social contract.    Without the firm hand of government to protect it, small businesses would be plundered by those with more brute force.   Without government, there would be no court system to enforce contracts.   

However, under the social contract, government does more than simply allow free enterprise and private property to exist.   It also does those things which make life better for everyone, but which individuals could not achieve on their own.   That includes things like the interstate highway system.   

That brings me back to the President's speech.   What was it that he said people didn't build?   In context, I believe that he said that our common efforts make it possible for our individual efforts to succeed.   That is the social contract theory of government, that government exists to protect our liberties, but also to promote the general welfare.    Thus, President Obama did not insult small business; rather, he simply acknowledged that we have a debt to those who came before us as well as those who make our prosperity possible. 

 

  

Was Chief Justice Roberts' Obamacare Opinion Really a Conservative Decision?

On June 28, 2012, the Supreme Court announced its decision in National Federation of Independent Business v. Sebellius, No. 11-393 (U.S. 6/28/12).   You can find a link to the decision here.    The four opinions run 193 pages.    This is partially due to the fact that the Justices were writing for the ages with lengthy expositions full of quotable language.  The volume was also due to the fact that there were three competing camps within the Court.    Justices Scalia, writing for himself and Justices Alito, Kennedy and Thomas, authored a tour de force on limited government, while Justice Ginsberg, writing for herself and Justices Breyer, Kagan and Sotomayor, made their case for a robust federal government able to confront the nation’s problems.    Chief Justice Roberts, acting as the umpire between the factions, took the pragmatic approach, paring back Congress’s power somewhat without rendering an overly ideological opinion.     

What the Case Was About:

The Supreme Court considered constitutional challenges to two provisions of the Patient Protection and Affordable Care Act of 2010 which is sometimes referred to as Obamacare.    The two provisions that the Court considered were:

   1.   The requirement that individuals purchase a minimum level of health insurance or else pay a penalty (the individual mandate); and

    2.   An expansion of Medicaid, which gives funds to the States on the condition that they pro­vide specified health care to all citizens whose income falls below 133% of the poverty level.

The Affordable Care Act contained over 2,000 pages so the Court reviewed only a small portion of its provisions.   However, the individual mandate was by far the most controversial aspect of the law.

The Supreme Court considered four questions with regard to these provisions:

   1.   Did the Anti-Injunction Act prohibit the Court from considering the constitutionality of the individual mandate until after someone had actually paid the penalty?   Under the Anti-Injunction Act, a tax may not be challenged until someone has paid it.

   2.   Did Congress have constitutional authority to enact the individual mandate?

   3.   If the individual mandate was struck down did the Court have to invalidate the entire statute?

   4.   Did Congress have authority to expand Medicaid and withhold all Medicaid funding from states that did not participate?

Of these four questions, two were narrow and technical, while the two issues about the authority of Congress raised major questions about the power of Congress under the Constitution.   I will write more about the competing viewpoints later on.

The Result

   1.   The Anti-Injunction Act Does Not Apply

All nine justices agreed that the Anti-Injunction Act did not prevent them from considering the case.     They all agreed that because the Affordable Care Act classified the exaction to be paid for failure to maintain health insurance as a “penalty” that it was not a “tax” that had to be paid first in order to be challenged.    If the Court had ruled the other way, it would have been required to rule that the challenge was premature and require the parties to wait until someone actually paid the penalty before it could be challenged.   This would not have occurred until 2014 at the earliest because the provision does not take effect until 2013 and the penalty is payable along with the taxpayer’s federal tax return.    All nine justices agreed that it was not necessary to make the country wait another five years to find out whether the individual mandate was constitutional.

   2.   The Individual Mandate Is Upheld But the Justices Disagree on Why

Chief Justice Roberts and Justices Scalia, Alito, Kennedy and Thomas formed a majority holding that the individual mandate could not be upheld under either the Commerce Clause or the Necessary and Proper Clause.    On the other hand, Chief Justice Roberts and Justices Breyer, Ginsberg, Kagan and Sotomayor ruled that the individual mandate could be justified as a tax.   This required the majority to do some dexterous distinguishing.     They had just unanimously ruled that the penalty was not a tax under the Anti-Injunction Act; however, the majority ruled that it was a tax under the power to tax clause.    The majority said simply that the Act turned on the label given to the payment so that calling it a penalty made it a penalty.   However, for purposes of the Constitution, they could look at its substance.   For example, the penalty was payable to the Internal Revenue Service and was payable along with the taxpayer’s federal income tax return.     Was this a rationalization?   Yes, but the alternative for the justices who felt that this was a tax was to leave the country in limbo for another four years.     The justices did the country a service by giving an answer even if they had to contort themselves to do so.

   3.   Because the Justices Found the Individual Mandate to Be Constitutional, They Did Not Decide Whether They Would Have Been Required to Strike Down the Entire Statute.

Justices Scalia, Alito, Kennedy and Thomas who dissented would have struck down the law in its entirety finding that the individual mandate was too critical to the law to allow the Affordable Care Act to survive without it.

   4.   Congress Could Not Coerce The States to Accept a Medicaid Expansion on Penalty of Losing Their Existing Funding, But The Program Could Still Be Extended.

Chief Justice Roberts and Justices Alito, Breyer, Kagan, Kennedy, Scalia and Thomas all agreed that Congress could not tell the states to expand their participation in the Medicaid program to include the working poor on condition of losing their existing Medicaid funding.    The federal government can entice states to participate in federal programs by offering benefits, but cannot coerce them to do so.    Thus, the federal government could legally withhold part of a state’s highway dollars if it did not increase the drinking age to 21.    However, where all citizens of states are currently required to pay Medicare tax, telling the states that they had to expand Medicaid or lose their existing funding constituted unconstitutional coercion.    Only Justices Ginsberg and Sotomayor would have allowed this.    However, Chief Justice Roberts and the four liberals all held that it was permissible to allow the Medicaid expansion to proceed so long as states had a free choice to participate or not.   Because the federal government was paying the entire cost of the expansion, a state would be foolish to turn down these benefits.   However, the majority gave them the option to do so.   The curmudgeonly quartet of Scalia, Alito, Kennedy and Thomas would have struck down the entire expansion on the basis that they would be required to re-write the law to reach the majority’s result.

Threading the Needle

Part I of the Opinion, which was authored by Chief Justice Roberts and joined in by Justices Breyer, Ginsberg, Kagan and Sotomayor, set the tone for Chief Justice Roberts to attempt to thread the need between striking down the Act for political reasons and granting unlimited power to Congress.    Early on, he stated:

We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.

In our federal system, the National Government pos­sesses only limited powers; the States and the people retain the remainder. Nearly two centuries ago, Chief Justice Marshall observed that “the question respecting the extent of the powers actually granted” to the Federal Government “is perpetually arising, and will probably continue to arise, as long as our system shall exist.” (citation omitted).  In this case we must again determine whether the Constitution grants Congress powers it now asserts, but which many States and individuals believe it does not possess. Resolv­ing this controversy requires us to examine both the limits of the Government’s power, and our own limited role in policing those boundaries.

Opinion, page 2.    This statement epitomizes Chief Justice Roberts’ view of the Court as an umpire calling balls and strikes but not playing the game.   The Chief Justice took pains to stake out that he was not endorsing Obamacare; instead, he was merely determining whether the pitch was inside the strike zone or not.

Immediately following, he stated:

The Federal Government “is acknowledged by all to be one of enumerated powers.” (citation omitted). That is, rather than granting general authority to perform all the conceiv­able functions of government, the Constitution lists, or enumerates, the Federal Government’s powers. Congress may, for example, “coin Money,” “establish Post Offices,”and “raise and support Armies.” Art. I, §8, cls. 5, 7, 12. The enumeration of powers is also a limitation of pow­ers, because “[t]he enumeration presupposes something not enumerated.” (citation omitted).The Constitution’s express conferral of some powers makes clear that it does not grant others. And the Federal Government “can exercise only the powers granted to it.” (citation omitted).

Today, the restrictions on government power foremost in many Americans’ minds are likely to be affirmative pro­hibitions, such as contained in the Bill of Rights. These affirmative prohibitions come into play, however, only where the Government possesses authority to act in the first place. If no enumerated power authorizes Congress to pass a certain law, that law may not be enacted, even if it would not violate any of the express prohibitions in the Bill of Rights or elsewhere in the Constitution.

Opinion, pp. 2-3.   This passage is significant because it shows an acknowledgement by all nine justices that under the Constitution, Congress must act within its enumerated powers.    While the justices may not agree on the extent of those enumerated powers, they are united in the basic principal.

Two Views of the Role of Government

Stepping back from the minutiae of the decision, it is really about two competing visions about the role of government.  On the one hand, Justices Breyer, Ginsberg, Kagan and Sotomayor believe that the Constitution contains broad authorization for the people to act through their elected representatives.   On the other hand, Justices Scalia, Alito, Kennedy and Thomas wish to restrain the power of Congress kept within strict limits.    Straddling the middle was Chief Justice Roberts. 


While Chief Justice Roberts ultimately carried the day, the real debate over the scope and role of government is contained in the opinions of Justices Ginsberg and Scalia.

Justice Ginsberg viewed the Commerce Clause as authorizing Congress to solve problems that affect the economy on a national basis.    Much of her concurring opinion was devoted to why the Court should have sustained the individual mandate under the Commerce Clause.

Justice Ginsberg began her opinion by comparing health care to retirement benefits.  He stated:

The provision of health care is today a concern of national dimension, just as the provision of old-age and survivors’ benefits was in the 1930’s. In the Social Security Act, Congress installed a federal system to provide monthly benefits to retired wage earners and, eventually, to their survivors. Beyond question, Congress could have adopted a similar scheme for health care. Congress chose, instead, to preserve a central role for private insurers and state governments. According to THE CHIEF JUSTICE, the Commerce Clause does not permit that preservation. This rigid reading of the Clause makes scant sense and is stunningly retrogressive.

Opinion of Ginsberg, p. 2.

She went through an extended discussion of the effect of health care on the national economy, noting among other things that health care accounts for 17.6% of the national economy and that 99.5% of persons over age 65 will have visited a doctor.   However, because medical providers must provide care regardless of ability to pay, those with insurance subsidize those without it.  Further, persons with pre-existing conditions may not have access to coverage at all.   Interestingly enough, in making this argument, Justice Ginsberg cited extensively to Congressional findings, news articles, medical journals and even news blogs.   In order to adequately describe the problem, she went far beyond mere legal precedent. 

To Justice Ginsberg, this represented a national problem which required a national solution.   She stated:

Aware that a national solution was required, Congress could have taken over the health-insurance market by establishing a tax-and-spend federal program like Social Security. Such a program, commonly referred to as a single-payer system (where the sole payer is the Federal Government), would have left little, if any, room for private enterprise or the States. Instead of going this route, Congress enacted the ACA, a solution that retains a robust role for private insurers and state governments. To make its chosen approach work, however, Congress had to use some new tools, including a requirement that most individuals obtain private health insurance coverage.

 Opinion of Ginsberg, pp. 8-9.

Well into her opinion, Justice Ginsberg finally lays out her vision of the Commerce Clause.   He describes how he believes the Commerce Clause was intended by the framers.

What was needed was a “national Government . . . armed with a positive & compleat authority in all cases where uniform measures are necessary.” See Letter from James Madison to Edmund Randolph (Apr. 8, 1787), in 9 Papers of James Madison 368, 370 (R. Rutland ed. 1975). See also Letter from George Washington to James Madison (Nov. 30, 1785), in 8 id., at 428, 429 (“We are either a United people, or we are not. If the former, let us, in all matters of general concern act as a nation, which ha[s] national objects to promote, and a national character to support.”). The Framers’ solution was the Commerce Clause, which, as they perceived it, granted Congress the authority to enact economic legislation “in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent.”

 Opinion  of Ginsberg, p. 13.

She also described the Commerce Clause as giving Congress “the power to regulate economic activities ‘that substantially affect interstate commerce.’”   Opinion of Ginsberg, p 15.

Given this expansive view, it not surprising that Justice Ginsberg would have upheld the Affordable Care Act under the Commerce Clause.   She stated:

Straightforward application of these principles would require the Court to hold that the minimum coverage provision is proper Commerce Clause legislation. Beyond dispute, Congress had a rational basis for concluding that the uninsured, as a class, substantially affect interstate commerce. Those without insurance consume billions of dollars of health-care products and services each year. (citation omitted). Those goods are produced, sold, and delivered largely by national and regional companies who routinely transact business across state lines. The uninsured also cross state lines to receive care. Some have medical emergencies while away from home. Others, when sick, go to a neighboring State that provides better care for those who have not prepaid for care.

 Opinion of Ginsberg, p. 16.

She also thrashed the notion that the Affordable Care Act required persons to purchase an unwanted product.

Virtually everyone, I reiterate, consumes health care at some point in his or her life. (citation omitted). Health insurance is a means of paying for this care, nothing more. In requiring individuals to obtain insurance, Congress is therefore not mandating the purchase of a discrete, unwanted product. Rather, Congress is merely defining the terms on which individuals pay for an interstate good they consume: Persons subject to the mandate must now pay for medical care in advance (instead of at the point of service) and through insurance (instead of out of pocket). Establishing payment terms for goods in or affecting interstate commerce is quintessential economic regulation well within Congress’ domain.

Opinion of Ginsberg, p. 22.

Thus, Justice Ginsberg took a view of the Constitution as authorizing a robust federal government to solve problems of national importance through its authority under the Commerce Clause.   Justice Scalia and his fellow dissenters took a much more constrained view.   They viewed commerce as a specific and limited activity which could be regulated but not compelled.   

In a direct rebuff to the liberal justices, Justice Scalia wrote:

The dissent treats the Constitution as though it is an enumeration of those problems that the Federal Government can ad­dress—among which, it finds, is “the Nation’s course in the economic and social welfare realm,” ibid., and more specifically “the problem of the uninsured,” ante, at 7. The Constitution is not that. It enumerates not federally soluble problems, but federally available powers. The Federal Government can address whatever problems it wants but can bring to their solution only those powers that the Constitution confers, among which is the power to regulate commerce. None of our cases say anything else. Article I contains no whatever-it-takes-to-solve-a-national­ problem power.

Opinion of Scalia, pp. 14-15.   I love this passage because it captures the essence of the argument and spits it back out in plain language.

In numerous passages, Justice Scalia sounded the theme that failure to engage in commerce was not commerce.  

That clear principle carries the day here. The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurispru­dence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

Opinion of Scalia, pp. 2-3.   (“Ne plus ultra” means the highest point or the exteme.   It is not clear how saying it in Latin makes it any more meaningful).

Article I, §8, of the Constitution gives Congress the power to “regulate Commerce . . . among the several States.” The Individual Mandate in the Act commands that every “applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individ­ual, is covered under minimum essential coverage.”(citation omitted). If this provision “regulates” anything, it is the failure to maintain mini­mum essential coverage. One might argue that it regu­lates that failure by requiring it to be accompanied by payment of a penalty. But that failure—that abstention from commerce—is not “Commerce.” To be sure, purchas­ing insurance is ”Commerce”; but one does not regulate commerce that does not exist by compelling its existence.

***

We do not doubt that the buying and selling of health insurance contracts is commerce generally subject to federal regulation. But when Congress provides that (nearly) all citizens must buy an insurance contract, it goes beyond “adjust[ing] by rule or method,” (citation omitted), or “direct[ing] according to rule,” (citation omitted), it directs the creation of commerce.

***

Here, however, Congress has impressed into service third parties, healthy individuals who could be but are not customers of the relevant industry, to offset the undesir­able consequences of the regulation. Congress’ desire to force these individuals to purchase insurance is motivated by the fact that they are further removed from the market than unhealthy individuals with pre-existing conditions, because they are less likely to need extensive care in the near future.

Opinion of Scalia, pp. 4, 5, 8.

But the health care “market” that is the object of the Individual Mandate not only includes but principally consists of goods and services that the young people primarily affected by the Mandate do not purchase. They are quite simply not participants in that market, and cannot be made so (and thereby subjected to regulation) by the simple device of defining participants to include all those who will, later in their lifetime, probably purchase the goods or services covered by the mandated insurance. Such a definition of market participants is unprecedented, and were it to be a premise for the exercise of national power, it would have no principled limits.

***

If all inactivity affecting commerce is commerce, commerce is everything.

***

 It threatens that order because it gives such an expansive meaning to the Com­merce Clause that all private conduct (including failure to act) becomes subject to federal control, effectively destroy­ing the Constitution’s division of governmental powers.

Opinion of Scalia, pp. 11-12, 13, 14   (emphasis in original).     Justice Scalia’s viewpoint is aptly summarized in the quote above stating that “(i)f all inactivity affecting commerce is commerce, commerce is everything.”    To Justice Scalia, governmental powers must be defined and limited.   Therefore, an all-encompassing view of commerce is anathema to him.

Justice Scalia also stressed the need to restrain the powers of the federal government lest it become all powerful.  

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws . . . spare neither sex nor age, nor high nor low, nor sacred nor pro­fane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

Opinion of Scalia, p. 8.

This formidable power, if not checked in any way, would present a grave threat to the system of federalism created by our Constitution. If Congress’ “Spending Clause power to pursue objectives outside of Article I’s enumerated legislative fields   (citation omitted)), is “limited only by Congress’ notion of the general welfare, the reality, given the vast financial resources of the Federal Government, is that the Spending Clause gives ‘power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed,’(citation omitted). “[T]he Spending Clause power, if wielded without concern for the federal balance, has the potential to oblite­rate distinctions between national and local spheres of interest and power by permitting the Federal Government to set policy in the most sensitive areas of traditional state concern, areas which otherwise would lie outside its reach.” (citation omitted). 

Opinion of Scalia, p. 32.     (Note, in the interest of brevity, I have skipped over Justice Scalia’s discussion of the spending clause except for the excerpt above.  While there is a lot of interesting material there, I could not find a way to condense it down to a manageable discussion.).

In conclusion, Justice Scalia stated his central thesis that liberty depended upon preserving the structural protections contained in the Constitution.

The Constitution, though it dates from the founding of the Republic, has powerful meaning and vital relevance to our own times. The constitutional protections that this case involves are protections of structure. Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provi­sions of the Bill of Rights or the Civil War Amendments. Hence they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.

Opinion of Scalia, p. 65.

Final Thoughts

   1.  The Justices could use an editor.    The desire to write monumental opinions combined with the time pressure to complete them within the same term results in opinions that are much too long.    Tome-length opinions tend to confuse rather than clarify since there is language to support virtually any proposition within the opinions.

   2.   Citing to the Founding Fathers is about as useful as citing to the Bible.    Because the Founding Fathers did not always agree with each other and wrote profusely, it is possible to find some support from the Founding Fathers for virtually any proposition.    It is interesting that both Justices Ginsberg and Scalia resort to the Founding Fathers for support of their diametrically opposed views of the Commerce Clause.   In a passage that I wish I could have found a way to incorporate into the post, Justice Scalia talks about the contrasting views of Madison and Hamilton with regard to the scope of the Spending Clause.    However, in most instances, the Founding Fathers are cited as though they spoke with a monolithic voice when in fact, they did not.

   3.   The dueling opinions of Roberts, Scalia and Ginsberg are reflections of our national angst over the role of government.     On the one hand, there is a fear that an all-powerful government will strip us of our liberties.    On the other hand, there are an equal number who believe that a strong government protects our liberties by providing security and protection from the vagaries of life.     If you go onto Facebook, you will see people referring to the President as the “Commander-in-Thief” or decrying the Koch Brothers and Citizens United as the end of democracy.     In such a highly partisan atmosphere, it is refreshing to see Chief Justice Roberts emerge as the responsible adult in the room who tries to make people play nice despite their differences.

   4.   I believe that Chief Justice Roberts’ opinion was conservative in the older sense of the word.    Believe it or not, the definition of conservative is not lock-step opposition to President Obama.   In the older sense, definitions of conservative include emphasizing stability and continuity, tending to oppose change, favoring traditional values and being restrained in style.   In the judicial context, conservative means employing the judicial power sparingly and deferring to the other branches of government when appropriate.   While the Scalia opinion waxed eloquent on the virtues of separation of powers, it gave very little deference to the role of Congress as an equal branch of government.   The Scalia opinion was not deferential toward Congress; rather, it was hostile to the entire notion of government.    This strikes me as activist rather than conservative.   In contrast, Chief Justice Roberts recognized that an open-ended Commerce Clause power was no restriction at all, but that there were other avenues for the government to act.    Because Congress could have authorized a single payer national health care system under the power to tax and spend, it makes logical and conservative sense that a less intrusive system based on the private sector would also be constitutional.   Thus, upholding the statute was the conservative choice.

   5.   While I come down on the side of Chief Justice Roberts, I think that all of the opinions make for a fascinating study in civics.    While I don't agree with Justice Scalia this time, his writing is almost lyrical.   This is good stuff, just a bit too much of it.


Mea culpa:   The original version of this post changed Justice Ginsberg's gender.   Several alert readers brought it to my attention and I have corrected it.  My apologies to Justice Ruth Bader Ginsberg.