The Powers of the Government

I had intended yesterday's post to suffice for this weekend, and I suggest that you turn to it first; but since nearly everyone seems to expect the Supreme Court tomorrow to hand down one of the most momentous decisions in its history on the constitutionality of the Affordable Health Care Act, I thought it might be well once again to quote the words of Justice Story, our most distinguished constitutional commentator of the 19th century, regarding the proper interpretation of powers granted by the Constitution. To wit:

"A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is no wise entitled. The argument ab inconvenienti is sufficiently open to question, from the laxity of application, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature, not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies, which may arise in the progress of events, connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante to provide for them. The means must be subject to perpetual modification, and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers, or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed some where; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; and ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies. Few cases are to be supposed, in which a power, however general, will be exerted for the permanent oppression of the people.1 And yet, cases may easily be put, in which a limitation upon such a power might be found in practice to work mischief; to incite foreign aggression; or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet, a limitation upon that power might, in a given case, involve the destruction of the independence of the country."

Justice Story, like the Founding Fathers, Abraham Lincoln, Franklin Roosevelt, understood the need for effective government--and he also understood that the requirements of effective government would change over time. He specifically rejected the idea that a proper measure must be outlawed simply because the constitutional interpretation that would permit it could theoretically be extended to provide for an absurd result, such as a law to require the purchase of broccoli. Those Americans who have argued falsely that the Constitution was designed merely to limit government, from John Randolph in the early 19th century through the Supreme Court justices of the Gilded Age and onward to Strom Thurmond, Richard Russell, and now, the Federalist Society and its acolytes on the Supreme Court, do not understand the necessity of government to make live endurable, and their counterparts today will not be satisfied, it seems, until they have reduced to misery and near-anarchy.

Predictions are always dangerous, but I am inclined to believe that, the oral arguments notwithstanding, the Court will in fact uphold the law by a vote of 6-3, with Justices Roberts and Kennedy joining Ginsburg, Breyer, Kagan and Sotomayor. The health care act is one of the biggest issues in the current election campaign, and the voters, should they wish to do so, have every opportunity to insure its repeal in November. The Court may well be feeling a bit uneasy about the spectacular results of the Citizens United decision and thus hesitate to make another such dramatic assertion of judicial authority. But if I am wrong and the law is overruled, it will be a huge step in the Republican drive--now thirty years old--to assume control of government throughout the United States for the purpose of dismantling it. It will also, I fear, give Mitt Romney an enormous boost, and lend an air of inevitability to the triumph of the Republican Party and its disastrous ideals.