Roberts rule fits into a long history of creating order
“I acknowledge no master but the law.”
As Americans, we proclaim ourselves to be a nation governed by laws, not men. The concept that no one is above the law provides the foundation for civil society. Yet, many of the events that we hold most dear — the history that defines us as a people — took place either outside the realm of legalities or in direct contradiction of the law of the day.
The American Revolution
Strictly speaking, the American Revolution is better described as a rebellion. Revolutions are usually zero-sum games waged against a regime — one side perishes and the other governs. The French Revolution, for instance, brought the Reign of Terror to the former ruling class.
But the Declaration of Independence made no effort to oust George III from the throne, topple the monarchy or disband the British Empire. Rather, the document is what its title would suggest: a formal announcement that the Founders simply wanted to go their own way to forge their destiny independently from Great Britain.
Of course, even that more modest goal was strictly illegal. In fact, it constituted high treason, which prompted Benjamin Franklin to famously caution his co-conspirators that they’d best be prepared to hang together because they would most assuredly hang separately if they failed.
Drafting the Constitution
Any school child can tell you that the Constitution is the supreme law of the land. It is the venerable and inspired writing that established the Republic and is presently invoked by parties of every conceivable stripe to legitimize a wide variety of proposed foible. Less well remembered is the fact that it was adopted illegally.
The original supreme law of the United States was called the “Articles of Confederation and Perpetual Union.” It was the document that gave the fledgling nation its name. Under provisions of Article XIII, the only way the confederation agreement could be altered was by consent of the legislatures of all 13 states.
When the Constitutional Convention was later convened, Patrick Henry remarked, “I smell a rat.” He wasn’t alone.
Rhode Island refused to send a delegation, arguably making the gathering itself illegal on its face. By the time the resultant Constitution was finally enacted and George Washington was inaugurated as the nation’s first president, neither Rhode Island nor North Carolina had ratified the new law.
The Founders got around this problem by drafting Article VII into the document, which stipulated that the Constitution would come into force upon approval of nine of the states. Today, Henry and his ilk would have appealed this violation of the unanimity principle to the Supreme Court. They didn’t do so, however, because the Supreme Court didn’t exist until the Constitution invented it.
The Civil War
In the wake of Abraham Lincoln’s election in November 1860, Southern states began to secede from the Union. As Lincoln would not assume office until March of the following year, the immediate crisis was dumped into the lap of his lame-duck predecessor, James Buchanan.
Buchanan was an attorney and the author of the quote that accompanies this column. He responded to the threatened dissolution by sending Congress a letter in which he opined that secession was illegal, but so was waging war to stop it. He then dealt with the problem by largely ignoring it until the next Inauguration Day.
In Buchanan’s defense, it should be noted that like their colonial forefathers, the Southerners had no intention of overthrowing the government. They merely wanted to leave. From a strictly legal perspective, I suspect Buchanan’s reasoning was correct — the Constitution was, in effect, a marital contract that did not anticipate the possibility of divorce.
Lincoln was also a lawyer but his master was the nation rather than its law. He subsequently preserved the Union by waging what the South referred to as the “War of Northern Aggression.”
During the course of the bloody conflict, Lincoln also suspended the right of habeas corpus for suspected Confederate spies. This decree made for a more expeditious prosecution of the war but, unfortunately, the president lacked the legal authority to issue it.
The Supreme Court ultimately decided that Lincoln’s edict was unconstitutional. Conveniently, the justices waited until the year after the war had ended to tell the by-then dead president that he had erred.
The Roberts Decision
Conservatives are currently aghast that Chief Justice John Roberts sided with the liberal wing of the Supreme Court to uphold the constitutionality of Obamacare. Without endorsing the wisdom of the legislation, he found it to be legal. Roberts’ reasoning was either carefully crafted or tortured, depending on your point of view.
Had he found that Congress can impose a penalty for one’s failure to purchase health insurance, he would have expanded that body’s power to regulate commerce to include compelling it. The government, in effect, could make buy things you don’t want.
Instead, he ruled that the mandate is taxation — essentially, an excise tax levied on the uninsured for the “privilege” of not being covered. If this rationale strikes you as a bit of a stretch, don’t feel like the Lone Ranger.
I suspect that Roberts acted as he did to preserve the integrity of his court. If every controversial case were to be decided by ideological bias — an interminable series of Bush v. Gore yawners — the purpose of an independent judiciary would be lost and its justices reduced to political hacks wearing black dresses.
On the other hand, if Roberts bent the law to save the legitimacy of the institution, his decision is clearly not without precedent; and history often takes a very sanguine view of such actions. If you don’t believe me about the historical verdict, visit D.C. sometime and try to find the Buchanan Memorial.