- - Thursday, August 2, 2012


There is a lot of conservative disappointment in Chief Justice John G. Roberts Jr.’s ruling on the constitutionality of the so-called Affordable Care Act. The focus on his ruling has distracted conservatives from the very real threat revealed in Justice Ruth Bader Ginsburg’s dissent on behalf of all four of the court’s liberal justices.

Her opinion on the question of the constitutionality of the individual insurance mandate should be raising red flags. The court’s liberal justices say that the power to regulate commerce among the several states listed in the Constitution gives the Congress the right to compel private individuals to participate in commerce — to buy a product they may not want and may not need. The dissent borders on pretentious nonsense. It is dangerous because it strikes at the heart of the integrity of our experiment in constitutional governance. For that reason alone, it is well worth reading.

It is time for conservatives to keep our eyes on the ball. We are just one more liberal appointment away from that dissent becoming the law of this land. Perhaps the chief justice was trying to help put this in some perspective, perhaps he wasn’t. But there is a lesson here, one that conservatives can only ignore at great peril. That is the ball.

The dissent reads like there is a presumption that the Constitution means whatever the justices say it means. Unless they think the Constitution specifically prohibits congressional action, Congress can do whatever it wants in managing our economic life as long as the justices think, however imperfectly, that there is some rational foundation for what it does. Using this logic, the ability and preference of an individual to dispense with or defer insurance — in other words, to pay for and manage his own health care — becomes a form of “self-insurance” subject to federal regulation. Individual self-reliance is now government regulated self-insurance, according to their thinking. Heaven help us.

The dissent also rests on the premise that everyone needs insurance throughout their lives because everyone will need heath care at some time in their lives. It conflates two different products and markets with an ease that makes you wonder whether the justices understand either. The opinion also ignores the question of what the Affordable Care Act prohibits you from buying. You cannot buy insurance that reflects your actual risk of needing health care. If you are young, healthy, do not smoke and do not engage in other high-risk behavior, it just doesn’t matter. All you can purchase — and what you must purchase — is a community-rated policy. In other words, it is not really insurance for you. It is a transfer of wealth from you to the rest of the community. That is an exercise of the power to regulate commerce among the states. It is an opinion that may make sense to those who lend their names to it, but that is about all.

While the Supreme Court has the necessary and undisputed power to rule on the constitutionality of statutes, its reasoning loses legitimacy when it becomes unintelligible to the American public. One might think that if it takes that much effort and paper to explain why you are right, then you might get the hint that you have failed the test. The worrisome part is that it doesn’t seem to matter. It is their opinion.

That may be all that really matters. Consider the logic of the decisions of the Supreme Court since the New Deal and divine their viewpoint. It need only be an incremental analysis. Never mind that freedom is lost one small step at a time. Never mind the limitations of the text of the Constitution and what it might mean to someone who never attended Harvard. The meaning of the Constitution does not belong to the people who vote, or even to those who fought and died to preserve it. It doesn’t belong to “we, the people” of the United States. In spite of what you might have thought, it is not a solemn compact between those who govern and those who are governed. It belongs only to our minders, and it is the prerogative of the third branch of that government to decide what it means. It apparently belongs to we, the educated and liberal activists on the Supreme Court.

In the view of Justice Ginsburg, government has no business making an abortion choice for women, but it can compel a young man to pay for contraceptive services for women. That, she contends, is what the Constitution does. It effectively favors one class or group and their “enlightened” worldview over another, notwithstanding the fact that there is nothing whatsoever in any rational reading of our charter that gets you anywhere near that result. You don’t have to be an originalist to figure that out. All you need to be able to do is read.

One more liberal on the Supreme Court could make Justice Roberts a chief in name only. Except for him, it would be a 4-4 tie ball game today. It is time to get in the game. The Constitution, and the future of the Affordable Care Act, should belong to us. We cannot leave it all up to the chief justice.

Warren L. Dean Jr. is a lawyer and an adjunct professor at Georgetown Law Center.

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