Thursday’s Supreme Court decision on Obamacare is a tragic setback to the nascent movement of political constitutionalism. For three years, beginning with the emergence of the Tea Party, millions of citizens joined together in trying to settle the broad meaning of the Constitution through political means, by public debate and by efforts to elect public officials committed to a certain understanding of the purposes of the nations governing document. Courts should not be the sole arbiters of certain constitutional questions, especially those dealing with the extent and limits of government power. The political process has its own role to play in constitutional decision-making.
The conflict over Obamacare has been the test case of political constitutionalism. Both political parties began to speak of the ends and purposes of constitutional government, and political leaders have increasingly discussed not only the policy implications of health care, but its constitutional status. Of course, the constitutionality of Obamacare has also been tested in the courts, where the legal question of the meaning of the commerce clause has been the central issue at stake. But the legal track, until yesterday, had not short-circuited the political track. The worst thing about yesterdays decision was not its result, but that it was decided at all before the 2012 election. The ink was hardly dry on the decision before the Presidents allies were claiming that the constitutionality of Obamacare had now been definitively determined. The Supreme Court had spoken and it was time to move on. To use legal language, public and political leaders should cease and desist further discussion of the constitutionality of the law and retreat to their proper role of discussing good or bad policy.
This position, if accepted, would amount to a gag order on constitutional discussion and a full surrender to the doctrine that the Court alone judges the meaning of the Constitution. There is more at stake in this decision than the question of Obamacare itself. Republicans should continue to oppose this law not only because it is bad law and bad economics, but also because it is unconstitutional. The Court plays its role and it is owed its proper measure of respect. But Americans need to be reminded that the people too, operating through their elected representatives, have a vital role to play in deciding great constitutional questions.
PS For a fuller discussion of “political constitutionalism” I invite any readers to go to the current (Spring) edition of the CRB, where I have a fairly long article that tries to explain the idea.