“We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all — regardless of station, race, or creed.” – Franklin Delano Roosevelt
Next month’s Democratic Convention will be held at one of the most remarkable times in American history. After a burst of creativity during the Reagan era, the nation’s conservatives are intellectually exhausted. Preoccupied by terrorism and obsessed by tax cuts, Republican leaders have resorted to self-congratulatory displays of patriotism and demonization of their political opponents. For their part, Democrats have an extraordinary opportunity to think ambitiously — one that they would be wise to seize rather than squander.
Where might they look? They could do no better than the nation’s most important leader in both peace and war, Franklin Delano Roosevelt, and, particularly, his most magnificent speech, in which he took threats to national security as the basis for proposing a second Bill of Rights. Roosevelt’s proposal, long confined to the dustbin of history, was intended as a kind of 20th century analogue to the Declaration of Independence. The Democratic Party should reclaim it as such, and the convention in Boston would be a perfect time to do it.
(While the current White House seems oblivious to the issues that gave rise to FDR’s second Bill of Rights, Iraqi government officials, surprisingly, have included parts of it in Iraq’s interim Constitution.)
On Jan. 11, 1944, the war against fascism was going well, and the real question was the nature of the peace. At noon, Roosevelt delivered his State of the Union address to Congress. The speech wasn’t elegant. It was messy, sprawling, unruly, a bit of a pastiche and not at all literary. It was the opposite of President Lincoln’s tight, poetic Gettysburg Address. But because of what it said, this forgotten address has a strong claim to being the most important speech of the 20th century — and to defining the deepest aspirations of the Democratic Party.
Roosevelt began by pointedly emphasizing that the war was a shared endeavor in which the United States was simply one participant: “This Nation in the past two years has become an active partner in the world’s greatest war against human slavery.” And as a result of that partnership, the war was being won. He continued, “But I do not think that any of us Americans can be content with mere survival … The one supreme objective for the future … can be summed up in one word: Security.” Roosevelt argued that security “means not only physical security which provides safety from attacks by aggressors” but “also economic security, social security, moral security.” Roosevelt insisted that “essential to peace is a decent standard of living for all individual men and women and children in all nations. Freedom from fear is eternally linked with freedom from want.”
Directly linking international concerns to domestic affairs, Roosevelt emphasized the need for a “realistic tax law — which will tax all unreasonable profits, both individual and corporate, and reduce the ultimate cost of the war to our sons and daughters.” He stressed that the nation “cannot be content, no matter how high the general standard of living may be, if some fraction of our people — whether it be one-third or one-fifth or one-tenth — is ill-fed, ill-clothed, ill-housed, and insecure.”
At this point Roosevelt became stunningly bold and ambitious. He looked back, not entirely approvingly, to the framing of the U.S. Constitution. At its inception, he said, the nation had grown “under the protection of certain inalienable political rights — among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures.” But over time, these rights had proved inadequate: “We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence … In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all — regardless of station, race, or creed.”
Then he listed the bill’s eight rights:
The right to a useful and remunerative job in the industries, shops, farms or mines of the nation;
The right to earn enough to provide adequate food, clothing and recreation;
The right of every farmer to raise and sell his products at a return that will provide a decent living;
The right of every business, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
The right of every family to a decent home;
The right to adequate medical care and the opportunity to achieve and enjoy good health;
The right to adequate protection from the economic fears of old age, sickness, accident and unemployment; and
The right to a good education.
Roosevelt added that these “rights spell ‘security’” — the “one word” that captured the overriding objective for the future. Recognizing that the second Bill of Rights was continuous with the war effort, he said, “After this war is won, we must be prepared to move forward in the implementation of these rights … America’s own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world.”
FDR emphasized “the great dangers of ‘rightist reaction’ in this Nation” and concluded that government should promote security instead of paying heed “to the whining demands of selfish pressure groups who seek to feather their nests while young Americans are dying.”
What made it possible for Roosevelt to propose the second Bill of Rights? Part of the answer lies in the recent memory of the Great Depression; part of it lies in the effort to confront the dual threats of fascism and communism with a broader vision of a democratic society. But part of the answer lies in a simple idea, one now lost but pervasive in American culture in Roosevelt’s time — that markets and wealth depend on government intervention. Without government creating and protecting property rights, property itself cannot exist. Even the people who most loudly denounce government interference depend on it every day.
Political scientist Lester Ward vividly expressed the point in 1885: “Those who denounce state intervention are the ones who most frequently and successfully invoke it. The cry of laissez faire mainly goes up from the ones who, if really ‘let alone,’ would instantly lose their wealth-absorbing power.” Think, for example, of the owner of a radio station, a house in the suburbs, an expensive automobile, or a large bank account. Each such owner depends on the protection provided by a coercive and well-funded state — equipped with a police force, judges, prosecutors, and an extensive body of criminal and civil law.
From the beginning, Roosevelt’s White House understood all this quite well. In accepting the Democratic nomination in 1932, Roosevelt insisted that we “must lay hold of the fact that economic laws are not made by nature. They are made by human beings.” Or consider Roosevelt’s address to the Commonwealth Club in the same year, where he emphasized “that the exercise of … property rights might so interfere with the rights of the individual that the government, without whose assistance the property rights could not exist, must intervene, not to destroy individualism but to protect it.”
Thus, against the backdrop of the Depression and the threats from fascism and communism, Roosevelt was entirely prepared to insist that government should protect individualism not only by protecting property rights but also by ensuring decent opportunities and minimal security for all. In fact, this was the defining theme of his presidency. When campaigning against Herbert Hoover in 1932, Roosevelt called for “the development of an economic declaration of rights, an economic constitutional order” that would recognize that every person has “a right to make a comfortable living.”
Extending this theme to the international arena in his State of the Union address in 1941, Roosevelt endorsed the “four freedoms” — freedom of speech, freedom of religion, freedom from want, and freedom from fear — that, he said, must be enjoyed “everywhere in the world.” As the Allied victory loomed on the horizon, Roosevelt offered details about “freedom from want” in his speech proposing a second Bill of Rights.
Roosevelt died within 15 months of delivering this great speech, and he was unable to take serious steps toward implementing the second bill. But his proposal, despite being mostly unknown in the United States, has had an extraordinary influence internationally. It played a major role in the Universal Declaration of Human Rights, finalized in 1948 under the leadership of Eleanor Roosevelt and publicly endorsed by the leaders of many nations, including the United States, at the time. The declaration proclaims that everyone has a “right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” The declaration also proclaims a right to education.
By virtue of its effect on the Universal Declaration of Human Rights, the second Bill of Rights has been a leading American export — influencing the constitutions of dozens of nations. The most stunning example is the interim Iraqi Constitution, written with American help and celebrated by the Bush administration. In Article XIV, it proclaims: “The individual has the right to security, education, health care, and social security,” adding that the nation and its government “shall strive to provide prosperity and employment opportunities to the people.”
In the 1950s and 1960s, the Supreme Court embarked on a path of giving constitutional recognition to some of the rights that Roosevelt listed. In Rooseveltian fashion, the court suggested that there might be some kind of right to an education; it ruled that people could not be deprived of welfare benefits without a hearing; it said that citizens from one state could not be subject to “waiting periods” that deprived them of financial and medical help in another state. And in its most dramatic statement, the court said: “Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. [Public] assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.’”
By the late 1960s, respected constitutional experts thought the court might be on the verge of recognizing a right to be free from desperate conditions — a right that captures many of the rights that Roosevelt attempted to implement. But all this was undone as a result of the election of Richard Nixon as president. Nixon promptly appointed four Supreme Court justices — Warren Burger, William Rehnquist, Lewis Powell and Harry Blackmun — who showed no interest in the second Bill of Rights. In a series of decisions, the new justices, joined by one or two others, rejected the claim that the Constitution protected the rights that Roosevelt listed (a vivid reminder of how much the interpretation of the Constitution depends on the outcome of presidential elections).
Roosevelt himself did not argue for constitutional change. He wanted the second bill to be part of the nation’s deepest commitments, to be recognized and vindicated by the public, not by federal judges, whom he distrusted. He thought it should be seen in the same way as the Declaration of Independence — as a statement of America’s most fundamental aspirations.
The United States continues to live, at least some of the time, according Roosevelt’s vision. A national consensus exists in favor of the right to education, the right to social security, the right to be free from monopoly, possibly even the right to a job. But under the influence of powerful private groups — the “rightist reaction” against which Roosevelt specifically warned — many of Roosevelt’s hopes remain unfulfilled. In recent years, many Americans have embraced a confused and pernicious form of individualism that endorses rights of private property and freedom of contract, and respects political liberty, but distrusts government intervention and believes that people must largely fend for themselves.
Democrats so far have not adequately responded to this approach through words or deeds. They have failed to show, as Roosevelt did, that this form of so-called individualism is incoherent. As Roosevelt well knew, no one is really against government intervention, whatever they say. The wealthy, at least as much as the poor, receive help from government and from the benefits that it bestows.
It is especially unfortunate that Democrats have failed to respond to the rebirth of this confusion under the current administration. While proposing a sensible system of federal tax credits to increase health insurance coverage, for example, Bush found it necessary to make the senseless suggestion that what he had proposed was “not a government program.” Time and again, conservatives claim that American culture is antagonistic to “positive rights,” even though property rights themselves require “positive” action.
The result? Both at home and abroad, we have seen the rise of a false and utterly ahistorical picture of American culture and history. That picture is far from innocuous. America’s self-image — our sense of ourselves — has a significant impact on what we actually do. We should not look at ourselves through a distorted mirror, lest we remold ourselves in its image.
Amid the war on terrorism, the problem goes even deeper. The nation could have taken the attacks of 9/11 as the basis for a new recognition of human vulnerability and of collective responsibilities to those who need help. It was the threat from abroad, after all, that led Roosevelt to a renewed emphasis on the importance of security — with the understanding that this term included not merely protection against bullets and bombs but also against hunger, disease, illiteracy and desperate poverty. Hence Roosevelt supported a strongly progressive income tax aimed at “unreasonable profits” and offering help for those at the bottom. President Bush, on the other hand, has supported tax cuts that give disproportionate help to those at the top. Most important, Roosevelt saw the external threats as a reason to broaden the class of rights enjoyed by those at home. Bush, to say the least, has failed to do the same.
President Bush, like America as a whole, has been celebrating what is called the “Greatest Generation,” the victors in World War II. But that celebration has been far too sentimental; it has betrayed the pragmatic and forward-looking character of that generation. Meeting in Boston, the birthplace of the American Revolution, the Democratic Party has a unique opportunity to reclaim Roosevelt’s legacy — to remind itself, and the nation, that the leader of the Greatest Generation had a project, one he believed to be radically incomplete. Affirming the second Bill of Rights would be an excellent place to start.
The most important revelation in Jeffrey Toobin’s 10,000-word New Yorker piece on Chief Justice John Roberts’ takedown of campaign finance laws in the Citizens United case is the extent to which modern conservatism is trying to restore the Gilded Age. That was a time when corporations had more rights than individuals, when a conservative Supreme Court did its best to protect those corporate rights, and wealth and corruption ran unchecked. Of course, we live in a neo-Gilded Age, when income inequality is more pronounced than at any time since the Great Depression, and the Roberts court’s decisions in the Citizens United case helps bring us all the way back to those bad old days.
Much is being made of Toobin’s revelations about the dramatic internal political divisions and infighting within the court triggered by the CU decision (more on that later). But what I think is most politically significant in Toobin’s piece is that it shows the dramatic rightward – and backward — march of Republicanism over the last 30 years. In January 1982, Ronald Reagan famously wrote in his diary, “The press is trying to paint me as trying to undo the New Deal … I’m trying to undo the Great Society.” Reagan was anxious to unravel the anti-poverty programs Lyndon Johnson pushed into place (though not Medicare), but he collaborated with House Speaker Tip O’Neill to pass payroll tax increases to stabilize Social Security for the next 50 to 60 years.
Today’s Tea Party, of course, is going after what’s left of the Great Society and the New Deal too, trying to privatize Medicare and Social Security and undo the labor protections passed by Congress and many states in the wake of the Great Depression. But the Roberts court wants to go back even further, to the Progressive Era, when some politicians in both parties recognized that the omnipotence of Gilded Age robber barons had to be curbed – and that campaign finance regulation was a good place to start.
Back then a conservative Supreme Court majority also disagreed with that Progressive reform push. In an 1886 tax case it first held that the 14th Amendment’s equal protection laws applied to corporations. In its 1905 Lochner ruling, striking down a New York law limiting bakery workers to a six-day 60-hour week, it declared such regulations a breach of contract rights, an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” As Toobin observes, “In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners.”
Progressive era reform also included campaign finance regulation, starting with the 1907 Tillman Act, which prevented corporations from directly contributing to campaigns. The Court let the act stand, but over the years a series of rulings by conservative majorities have managed to establish that money is “speech,” and though contributions could be regulated, expenditures – speech – could not.
Toobin shows decisively that the court could have kept its decision on Citizens United quite narrow. Attorney Theodore Olson wasn’t seeking to strike down McCain-Feingold, but to clarify that it applied to television commercials, not to 90-minute political “documentaries” such as “Hillary: The Movie” (a shriekingly negative “documentary” on the woman who was expected to be the 2008 Democratic presidential nominee). But in oral arguments the conservative justices sought to broaden their purview, and Roberts helped them along. “As the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party,” Toobin writes. “Roberts’s choice was: a lot.”
After taking a shot at drafting the CU ruling himself, he later assigned it to “swing vote” Anthony Kennedy, whose views on campaign finance regulation reliably put him with the conservative majority. Assigned to write the dissent, outgoing Justice David Souter accused Roberts “of violating the Court’s own procedures to engineer the result he wanted,” Toobin says. That’s when Roberts took the extraordinary step of asking that CU be re-argued – though with five justices already committed to a sweeping attack on McCain-Feingold, the outcome of those re-arguments were never really in doubt.
And indeed, Kennedy again wound up writing the majority opinion, which found that “The Court has recognized that First Amendment protection extends to corporations” since 1886, and that in McCain-Feingold “the Government has muffled the voices that best represent the most significant segments of the economy.” It’s unclear from the context whether Kennedy is saying what he seems to be – that corporations “best represent the most significant segments of the economy.”
Justice John Paul Stevens, a moderate Republican once on the court’s more conservative end, wrote in his dissenting opinion, “Five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Stevens’s dissent continued for a record 90 pages.
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Toobin’s conclusion is no less scathing: “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”
It’s worth noting that the most spirited opposition to Citizens United is coming from Montana, where the ties between Gilded Age corporate abuse and campaign finance regulation are perhaps the most explicit. Copper mining interests essentially owned the state in the late 19th and early 20th century, but Montana Progressives pushed a tough campaign finance law as a way of clawing back control of their state from the “copper kings,” who Mark Twain wrote “bought judges and legislatures as other men buy food and raiment.” Montana’s state Supreme Court upheld that 1912 “Corrupt Practices Act” in January, putting the state on a collision course with SCOTUS. Gov. Brian Schweitzer has been one of the most articulate voices against Citizens United, and supports a state ballot initiative that would ban corporate money in politics and make it state policy that corporations are not people.
“Montana’s going first, but we have before,” Schweitzer told the Huffington Post earlier this month. “It was Montana in 1912 that banned corporate money from our elections. We don’t mind leading and we believe it has to start somewhere. This business of allowing corporations to bribe their way into government has got to stop.”
But in a world where the Citizens United decision is precedent, it’s hard to imagine that ballot measure surviving a legal challenge. Toobin’s piece makes clear the stakes in the 2012 presidential race as vividly as anything else does: American democracy can’t survive the appointment of more justices like Roberts, Sam Alito and Antonin Scalia, who mainly serve the interests of corporate America. Mitt “Corporations are people, too, my friend” Romney can be expected to give them company in the years to come if he wins the White House.
Ruth Marcus is unsettled. Maybe even queasy. There is probably some light nausea. What has her worried for the future of the nation, today? President Obama’s shameful, horrific, vicious attacks on those nice people in the Supreme Court.
Obama said that the court overturning Congress’ healthcare reform law would be a textbook example of “judicial activism” as “conservative commentators” define it: “that an unelected group of people would somehow overturn a duly constituted and passed law.” And hey, that seems like an eminently defensible and not particularly unsettling point! Conservatives made “judicial activism” into a talking point and rallying cry and defined it vaguely enough to encompass judges striking down basically any law or statute.
Marcus, though, is stopped cold.
And yet, Obama’s assault on “an unelected group of people” stopped me cold. Because, as the former constitutional law professor certainly understands, it is the essence of our governmental system to vest in the court the ultimate power to decide the meaning of the constitution. Even if, as the president said, it means overturning “a duly constituted and passed law.”
Judicial review, as a former constitutional law professor certainly understands, is not in the Constitution — an unelected activist judge made it up! — and the founders themselves disagreed on the wisdom of the principle. (They tended, in fact, to decide whether or not they liked judicial review based on whether or not the judges ruled in a way that they approved of.) The history of the Supreme Court is replete with nakedly political and mostly conservative rulings until very recently, when we had a brief period of liberal-leaning rulings from a marginally more diverse group followed by a return to status quo conservatism.
As long as the Supreme Court has been making awful and indefensible rulings based on ideology or racism, presidents and politicians have been criticizing the court. Abraham Lincoln attacked the Supreme Court in his first inaugural address, in a passage that conservatives love to quote when they’re attacking “activist judges.”
At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
I am stopped cold and unsettled!
Marcus, hilariously enough, supports the healthcare law and the mandate — she is the world’s most sensitive milquetoast moderate liberal newspaper columnist, after all — which theoretically means she thinks it’s constitutional, which would mean that declaring it unconstitutional should maybe upset her more than criticizing the court for being political, but on the other hand those judges seem very smart and our entire system of government could collapse if we aren’t all super polite to one another and constantly deferential to authority.
I would lament a ruling striking down the individual mandate, but I would not denounce it as conservative justices run amok. Listening to the arguments and reading the transcript, the justices struck me as a group wrestling with a legitimate, even difficult, constitutional question. For the president to imply that the only explanation for a constitutional conclusion contrary to his own would be out-of-control conservative justices does the court a disservice.
Yes, I could tell they were very seriously wrestling with a difficult constitutional question when Scalia began joking around about broccoli mandates and the legendary “Cornhusker Kickback.”
I’m not sure what more the Supreme Court could do before moderates like Ruth Marcus finally acknowledged that it’s a partisan body with a right-wing majority. If Bush v. Gore didn’t do it, maybe nothing could. But as a partisan body it is open to partisan attacks, and our fragile democracy will not descend into anarchy if people think as poorly of the Court as they currently do of Congress.
Of course, the Republican talking point is that the president is attempting to bully the Court into ruling the way he wants. (Because if they strike down the law, he’ll … yell at them during the State of the Union again? No one seriously predicts an arrest warrant for Chief Justice Roberts here.) Mitch McConnell: “This president’s attempt to intimidate the Supreme Court falls well beyond distasteful politics; it demonstrates a fundamental lack of respect for our system of checks and balances.” Lamar Smith: “What is unprecedented is for the president of the United States trying to intimidate the Supreme Court.” Mike Johanns: “”What President Obama is doing here isn’t right. It is threatening, it is intimidating.” (Did you notice how everyone used the word “intimidate”? That’s because they got their language from a memo.)
The only time, besides Lincoln’s suspension of habeas corpus, that any president has seriously threatened the independence of the Supreme Court was when Franklin Roosevelt tried to amend the law to give the president the power to appoint more justices. And Roosevelt, frankly, was right on the merits of his proposal. The court is completely unaccountable and ridiculously powerful, it always has been, and pointing that out does not a constitutional crisis provoke.
On Monday, we had another example of the Supreme Court’s ideological division: a 5-4 ruling, along partisan lines, giving police the right to conduct strip searches for any offense. This came on the heels of last week’s oral arguments before the Supreme Court about the constitutionality of the individual mandate provision of the Affordable Care Act, which led many observers to predict that the nation’s highest judicial body will strike down part or all of the controversial healthcare reform package. But the hearings were instructive in other ways. They showed once again that political partisanship is closely correlated to a justice’s view of the law. And they proved that the Supreme Court once again is functioning, not as a court, but as a third house of the federal legislature.
The U.S. Constitution, like many state constitutions, really is two constitutions in one. There is the black-letter constitution, which consists of rules about which there is little or no dispute. Most of these have to do with qualifications for representatives, like Article I, Section 3, Clause 1, as amended: “The Senate of the United States shall be composed of two Senators from each State, for six Years; and each Senator shall have one Vote.” Not a whole lot of room for interpretation there.
The other constitution, embedded in the same document, is the Blank Constitution. It is not so much a limit on power as an assignment of the power to fill in blanks left in the text, like the Eighth Amendment’s prohibition of “cruel and unusual punishment.” The need to fill in the blank is admitted even by champions of the “original intent theory,” who must dig up historical evidence of what the drafters and ratifiers might have thought was cruel and unusual punishment at the time of the Constitution’s adoption. The answer is not contained in the text.
Even the basic definitions of powers assigned to different branches of government are blanks that must be filled in. The basic issue in the case of the Affordable Care Act is whether Congress had the power to compel individuals to purchase private health insurance, under the Commerce Clause and the Necessary and Proper Clause of the Constitution. Article I, Section 8, Clause 3 of the Constitution gives Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Article I, Section 8, Clause 18 gives Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Is the power to prescribe an individual health insurance purchase mandate included in these powers granted by the Constitution to Congress? The Constitution does not specifically say. If the Constitution were easy to amend, like some state constitutions, then it could be more specific — at the cost of having hundreds of amendments, like an imaginary Amendment Number 873: “Congress shall have power to impose an individual mandate to purchase health insurance.” But the federal constitution, for better or worse, was designed to be difficult to amend.
There is therefore no escaping acts of interpretation that are really acts of legislation: filling in the blanks in the text of the Constitution. The only real question, therefore, is how much latitude the federal judiciary should give Congress when Congress fills in the blanks by passing laws.
The Whig Party between the 1830s and the 1860s thought that the federal judiciary should defer to Congress. The Whigs favored a strong, competent federal government and opposed restrictions on federal power in the name of the states. Opposed to the administration of Andrew Jackson, the Whig Party also wanted the powers of the presidency strictly limited. In the Whig view, the federal judiciary should defend congressional power against encroachments by the states and the executive branch, while deferring to the decisions of Congress on matters of federal legislation.
The Whig theory of the Constitution strikes me as a pretty good one. But it rules out judicial activism, which has been embraced at different times by different factions in American politics. Between the Civil War and the New Deal, a pro-business federal judiciary persecuted unions and struck down federal, state and local restraints on corporations. In the civil rights era, liberal federal judges went beyond striking down racist laws to discovering a “right to privacy” in the Constitution that has been used to eliminate or restrict laws against abortion and homosexuality. Whatever you think about the outcomes of these cases, it is clear that the courts in all of them were just making things up.
In the case of the “right to privacy” they weren’t even filling in a blank in the Constitution, because the term does not exist in the text. In Griswold v. Connecticut, the 1965 case on which all subsequent federal law involving sex and reproductive rights including Roe v. Wade has been built, Justice William O. Douglas wrote that while the Constitution said nothing about contraceptives the “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The right to privacy is a penumbra from an emanation — in other words, it is whatever a majority of the Supreme Court says it is at any given moment.
Liberals applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of states to ban abortion or gay sex, and conservatives and libertarians applaud the federal judiciary when it pretends to find constitutional restrictions on the ability of Congress to regulate the national economy. The left and the right endorse judicial activism when it works in their favor and denounce it when it produces what they think are the wrong results.
For my part, I think the Whigs with their theory of judicial deference to Congress got it right. The states have usually been a greater threat to personal liberty and economic growth than the federal government. Yes, the federal government interned Japanese-Americans during World War II and has abused civil liberties in other ways, and before the Civil War some Northern states were more protective of freedom than the slaveholder-dominated federal government. But throughout American history national majorities, acting through the federal government, have more often checked the illiberalism of local majorities.
Economic policy, too, is best carried out at the federal level in a nation with a continental market. The Balkanization of the U.S. economy into 50 separate state economies by state regulations — even good regulations — is something that should be avoided. And as corrupt and partisan as it is, Congress is better equipped to make public policy than judges.
But wouldn’t judicial deference toward Congress and a broad interpretation of congressional power run the risk of majoritarian tyranny over minorities at the national level? The historical record suggests otherwise. The Supreme Court has almost never been ahead of the political branches when it comes to minority rights or individual freedom. The Court intervened in Brown v. Board only when the civil rights revolution was well underway in the streets and in legislatures, and it intervened in Roe v. Wade and recent gay rights cases only when waves of reform were making progress in federal, state and local legislatures. The federal judiciary has often run out with its surfboard to ride a wave of liberation, but it has never caused the wave. Indeed, in the last half-century the same reforms — anti-racism, the liberalization of abortion laws and the rise of gay rights — have taken place at roughly the same time in all advanced industrial democracies, including Britain, which has no written constitution at all.
When they try to fill in the blanks in the Constitution themselves, instead of letting Congress do the job, federal judges cease to be judges and start acting as legislators — incompetent legislators, like the Supreme Court justices who wrestled with issues like adverse selection in insurance policies in last week’s hearings. A number of state constitutions provide for the direct election of state Supreme Court justices by the people. Perhaps the federal Constitution should be amended along similar lines. Why not? If our laws are to be made by a tricameral federal legislature with three branches of the legislature — the House, the Senate and the Supreme Court — we the people might as well be empowered to elect the lawmakers in all three.
This originally appeared on Cedar Burnett's
Open Salon blog. It was written in a response to
a call for essays about people's personal experiences with the Affordable Care Act. Have an Obamacare story of your own? Blog about it on
Open Salon. Dear healthy people,
It’s great that you’re deriving intellectual pleasure from debating Obamacare. I love that this theoretical dance you’re engaged in has no repercussions to you, a healthy individual. I would love to join you some evening for a spirited discussion on the pros and cons of healthcare reform. Maybe over a glass of wine? Heck — over two or three glasses of wine. I’d love to lean forward, my arched brows furrowed, my full lips purple with the stain of a good Zinfandel, and throw out statistics and well-crafted one-liners about the plight of the uninsured, the underinsured, the sick. Those poor, poor sick.
But I can’t.
I can’t because it isn’t theoretical. I am sick. I’m so sick I can’t drink. I can’t drink and I can’t eat half the things a normal person eats and when I hear the word “Obamacare” hissed in snide derision I want to put a golf club through the windshield of the nearest Mercedes-Benz.
I’m 33 years old. I was diagnosed with an autoimmune disease called ulcerative colitis when I was 26.
Ulcerative colitis isn’t a disease people like to discuss. Most of what we experience is so embarrassing that many of us don’t tell people what we’re going through. We might tell you we’re “sick,” or “under the weather,” but we won’t tell you how bad it is. We won’t tell you we’ve had constant diarrhea for days, weeks, months on end, that we’ve been throwing up stomach acid, that we can’t eat anything but bagels, and that our joints ache so badly it’s hard to sleep. We won’t tell you how we’re wearing adult diapers under our clothes. We won’t tell you that getting in the car and driving three blocks away is the only activity we can do in an entire day.
But you know what we will tell you? We have to have insurance. We need healthcare and support because ulcerative colitis is a lifetime sentence. You know what else it is? A preexisting condition. Since receiving my diagnosis I have lived in fear of losing my insurance because if I let my insurance lapse, and Obamacare fails, I won’t be able to get it again. Ulcerative colitis and her sister, Crohn’s disease, are up there in the echelons of Scary Diseases Insurance Doesn’t Like to Cover.
I get it, I do. Some of our drugs cost a ton. It’s likely we’ll be hospitalized here and there. And many of us can look forward to bowel resection surgery or colon cancer. We’re expensive and we stay expensive for our entire lives. That’s the sticking point with chronic illness like Crohn’s and colitis: We’re sick but we just keep on living. We just don’t die fast enough.
If the health mandate stays, then the preexisting condition clause goes away. Insurance companies have to take everyone — even me. Lose the mandate and I’m right back to worrying about my care.
In truth, I think Obamacare doesn’t go far enough. My family is still coughing up $900 a month to insure the three of us, since my husband and I are self-employed. That’s pretty unsustainable. But at least the current plan includes a provision that insurance companies have to take me. I may have to pay ridiculous sums to keep my insurance, but I’m not going to live in fear of being dropped.
The last thing a sick person should have to worry about is how to pay for their care. The last thing the parent of a sick child or the child of a sick parent should have to worry about is how to pay for care. People should not have to choose between food and medicine, losing their house or losing their loved one. Let’s hold onto Obamacare as a stopgap, but let’s also work toward the goal of universal coverage.
For those of you who think of the healthcare reform debate in theoretical terms, I warn you: Your day is coming. Sure, you and your family are healthy now, but you might not be tomorrow. Sickness can come out of nowhere and knock your world upside down.
You’d better hope you have decent coverage. You’d better hope you’ve won the genetic lottery and you’ll never find yourself sitting in a flimsy hospital gown on a sheet of wax paper, staring down at your unshaven legs while a doctor tells you you have a golf ball-size tumor in your head or ulcers lining your intestines. You’d better hope Obamacare covers your theoretical ass.
Writing in Salon, Natasha Lennard proposes that with the warm weather we can again expect the Occupy movement to shoot up. Arab Spring, American Spring. She’s right about one thing: Like in the decades before the Arab Spring, it has been a long, cold, American winter. In the 30 years since coming to power here, Republicans have used their initial ascent to power to seal themselves into office as tightly as the pharaohs. Smart commentators have noted how lawless the conservatives are in making substantive decisions, but that’s not the worst of it. The worst of it is how they use their tenure to make it increasingly impossible to oust them.
With this week’s Supreme Court hearings — which will end, liberals worry, with the justices overturning healthcare reform — we are nearing the apotheosis of conservative power. Let us recount how we got here: In 2000, a mob of conservative thugs stopped the vote recount in Florida. And that was before the court got involved, the five conservative justices seizing the election and handing the White House to George W. Bush. Secure in the tenure of their undemocratically selected president, the two older conservative justices, William Rehnquist and Sandra Day O’Connor, retired from the bench. Bush replaced them with two young conservatives, destined, by constitutional design and the miracles of modern medicine, to dominate the court into the foreseeable future. At the Supreme Court, it’s always winter (and never Christmas).
The stunningly inept performance by the Bush administration unforeseeably produced the first Democratic federal government since 1994. Immediately thereafter, the conservative Supreme Court majority ruled that the GOP’s wealthy sponsors could spend an unlimited amount of the money putting conservatives in office. Now, the conservative majority on the Supreme Court, appointed, in part, by the conservative president they put in the White House, is preparing to wipe from the statute books the only piece of meaningful progressive legislation in the last half century, passed during the brief Indian summer of a two-year Democratic majority.
And it’s not just the federal government. In 2010, fueled, in part, by the money the conservative justices unleashed, the conservatives took over state legislatures across the country. In power, they enacted a series of measures that should make Hosni Mubarak blush. They redrew the legislative maps to guarantee that they would hold a majority of the legislatures, state and federal, regardless of whether they failed to gain a majority of actual votes. (The design of the Senate, favoring sparsely populated rural states, already way overrepresents the Republicans.) Using a panoply of legislative strategies, they made it infinitely harder for the Democrats to register their supporters and for the Democratic voters, even if registered, to vote. Voters must be reported within 24 hours of being registered or penalties will be levied on the laggard registrars. Would-be voters must produce a fistful of identity documents, notoriously more common among old white (Republican) voters than the youthful and nonwhite Americans likely to support the Democrats. If they run the registration gauntlet, they must again verify their identity on Election Day, with the same culturally skewed set of papers. In the swing state of Florida, the New York Times reports, the activists have given up registering new voters: Too perilous.
True, the Democrats have not been models of political virtue. Cowardly when confronted by their powerful adversaries, confused about the moral grounding of their political vision, faithless to their allies, racketing from one trendy policy initiative to another, without anything resembling long-term planning — with enemies like the Democrats, who needs friends? But blaming the victim is way too easy. Democrats made the mistake of behaving as if the American rules of representative government still applied. Confronted with the lawless conservative Republicans, their fate was sealed.
John Roberts (Credit: AP/Pablo Martinez Monsivais) 
(Credit: AP) 
Antonin Scalia, John Roberts and Clarence Thomas 
Supporters of health care reform stand in front of the Supreme Court in Washington, Wednesday, March 28, 2012, on the final day of arguments regarding the health care law signed by President Barack Obama. (AP Photo/Charles Dharapak)(Credit: AP) 
Clarence Thomas, George W. Bush and Antonin Scalia (Credit: AP) 
