Court’s Approval of Obamacare Shows Contempt for the Constitution

Last week’s marathon speech-fest (it wasn’t really a filibuster) from Senator Ted Cruz probably won’t do much to change the dynamic of politics in Washington or to stop Obamacare from becoming the last brick in the wall of social democracy separating Americans from their traditions of self-reliance and local community control. But, to someone interested in the constitutional basis of such things (there are a few of us left), it serves as of a reminder of how we got to this point.

First, what point exactly? The point at which a significant number of members of Congress feel compelled by angry “activist” constituents to oppose a program they may or may not like, but generally see as the natural, inevitable extension of decades of government expansion. The point at which “responsible” members of Congress openly criticize and threaten their colleagues for “obstructing democracy” by putting constituents’ demands above the demands of the mainstream media and academe to “make Washington work.” The point many of us recognize as the point of no return, at which we cease to be the Constitutional republic we once were.

And how did we reach this point? From a constitutional perspective, Obamacare was made possible, if not necessary, through the twisting of our Constitution beyond all rational bounds of interpretation, to allow for an entirely irrational reading of the powers of our federal government, and of the President in particular.

Truly awful Supreme Court decisions have become common enough that few people even remember that Chief Justice John Roberts saved Obamacare from its well-deserved doom by finding that the penalty imposed by the government on anyone failing to buy health insurance is actually a “tax.” That bit of fancy footwork allowed Roberts to pretend that Obamacare is not the radical departure from constitutional principles that it truly is. Never before (but certainly quite often from here on out) had the federal government gone so far as to actually force Americans, on pain of punishment (fines, remember, can always mean jail time if not paid) to purchase a particular good. Now we all must, whatever our beliefs, needs, or means, participate in the crooked market for healthcare created by the Obamacare legislation.

One could, of course, trace back this ludicrous decision and its enabling of an overreaching federal government to a whole series of previous decisions allowing and even requiring Washington to order our lives for us. But the point is that today any reading of the Constitution that “sounds good” and prevents “gridlock” by allowing those in power to extend the reach of government, is taken to be constructive and, well, constitutional.

Such a charge may sound odd. After all, for decades, now, “civil libertarians” have demanded that the Court twist the meaning of the Constitution to prevent the government from acting in ways they believe might violate some kind of individual right. This is how we got decisions protecting flag burning, nude dancing and other forms of “expression” courts have pretended emanate from freedom of speech. But we have long since left behind the era during which constitutional theorists saw protecting individual people as purely a matter of stopping governmental action. The goal for many years now has been to transform society into something more fair, equal, and safe (by the standards of these “progressive” theorists) by using the courts to force the government to act in certain, affirmative ways formerly blocked by the forces of tradition and popular control over government.

Where for some time the claim was that individuals would be “liberated” from governmental oppression by an expansive reading of the First Amendment and other sources of rights, today groups (women, racial minorities, and homosexuals) are to be “liberated” by decisions demanding that laws and common, often purely private, practices be changed so that they will be given the status and treatment they demand. Laws and private forms of action now must be made to conform to new, constitutionalized standards of fairness.

Most Americans are at a loss at how to oppose such claims, being by nature committed to fairness and, increasingly, equality. Moreover, the progressives have a set of claims they are willing to use with extreme prejudice in making their case, namely that we never would have gotten rid of segregation, or secured even a modicum of equal rights for women, had it not been for the “living constitution” and the judges who were willing to “update” its provisions in keeping with fundamental fairness. Thus, those of us concerned, for example, that private individuals’ rights to live their faith are being taken away by Obamacare’s contraception mandate (which includes the abortion-inducing “morning after pill”) are painted as extremists who would deny African Americans their right to vote and otherwise participate as full members of our society.

But is it true? Did the Supreme Court “save us” from segregation and other unjust public practices? An important book by a different kind of progressive, Gerald Rosenberg, called The Hollow Hope: Why Courts Can’t Bring about Social Change argues quite the opposite. Rosenberg argues, quite powerfully, that if you look at actual changes in our society, including desegregation, and other areas of progress in the realm of civil rights, the view that the Supreme Court brought about social change through cases like Brown vs. Board of Education is simply wrong.

What really brought about significant improvement in the treatment of minorities in our laws and social institutions was not the imposition of sweeping generalities through Supreme Court pronouncements, but concerted public action. Not the self-satisfied opinions of 9 judges in black robes, but the marches, the sacrifices, and the conversations that took place during the civil rights era finally put us on the road toward a more just society.

The biggest factor, Rosenberg points out, was the Civil Rights Act. That is, as one should expect, and as one should hope, we started getting our house in order on race when our lawmakers started having real debates, public policy debates, about what is just, what kind of country we want to be, and how we can achieve that through legislation. The results were far from perfect and we still have a long way to go in race relations. But that in itself is a sign that the Supreme Court’s abstract pronouncements and piecemeal commands for public action are ill-designed to solve a problem with deep roots in our society and culture as well as our government.

And what does all this have to do with Obamacare? The Roberts decision salvaging Obamacare was made possible by the increasing contempt in which our legal elites hold the language of the Constitution. The Roberts could not have happened but for a series of decisions rooted in the belief that judges can and should change the fundamental meaning of that document in order to foster “progress” by expanding individual “rights” and governmental powers beyond any rational reading of the document itself.

Sadly, the record of Supreme Court justices in protecting real, important rights is spotty at best, and getting spottier in this era of NSA spying, secret detentions, and IRS vendettas. In fact, an honest appraisal of the Supreme Court’s activism would show that it has done more harm than good to basic principles like the rule of law, due process, and even rights, properly understood. But one thing such decisions have accomplished is a basic contempt for principles like limited government, federalism, and the separation of powers—all of which are violated by Obamacare, all of which are essential to the structure and purpose of our Constitution, and none of which is likely to survive even a short stint under our budding social democratic regime.

It all began with claims that our Constitution must be allowed to “live” and “breathe.” But a constitution can’t live and breathe, it can’t move in the direction we might like. It only appears to move if judges hoist it into the air and manipulate its various limbs to give it the appearance of life. And what does this make the judges? One thing is for sure, such actions can’t make our Constitution live, they can only sap the life from our society.

Editor’s note: This column first appeared October 1, 2013 in Imaginative Conservative and is reprinted with permission.

Bruce Frohnen


Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

  • Dick Prudlo

    John Roberts is the reflection of the Church in America and is therefore willing to dispose of all those hackneyed traditions of real social justice. The Constitution is now the American Magna Carta, a pleasant little document for those who wish to read fables.

  • Tradmeister

    I might be more inclined to accord value to the question of constitutional validity were the subject being truly taken seriously in a comprehensive fashion.

    Does anybody truly believe that Medicare, Medicaid and Social Security are constitutional? Yet all too often it seems those who want to decimate Obamacare through any means possible maintain a studied silence on these other programs. Where are the members of Congress thundering for the abolition of Medicare, Medicaid, and Social Security and bringing constitutional judicial challenges against these programs? I suspect the near-silence I hear comes from political calculation far more than constitutional-statutory principle.

    The hard fact is that the federal government has felt free to transgress the constitution almost from the start of the nation, it seems. We seem all too often to care about constitutionality only when it fits our political proclivities.

    We also need to be mindful that the world’s best hope, contrary to William Bennett, is Holy Catholicism, not American constitutionalism.

    • NE-Catholic

      Given the Pope’s most recent pronouncement that ‘good and evil are determined by each individual’s conscience’ – and therefore subject to the whims of the majority or whomever is in power at the time – I’d say even ‘Holy Catholicism’- whatever it is – doesn’t provide much hope.

      • Tradmeister

        Perhaps not fully at the moment, NE-Catholic. If the faith is true, one day the ecclesial novelties of the past 55 years will be swept away, and we will see the worl’d best hope re-emerge, I trust, perhaps, even more strong and vibrant than ever.

    • Art Deco

      You might have argued in 1935 that erecting a pension program was not an exercise of a delegated power or in 1965 that erecting a medical insurance program was not. The thing is, they exist and people have done long-range planning on the basis of their existence. The better part of a generation ago, Robert Bork offered this: you could make a passable argument that the Congress cannot under the provisions of Article I authorize the issuance of paper money; however, a judge who attempted to shut down the Bureau of Engraving and Printing and the Federal Reserve by judicial decree would not be a meticulous interpreter of fundamental law; he would be a mad man. This was Bork’s example of when the principle of stare decisis applies.

      The thing is, dismantling these programs on anything less than a generations-long time scale would be sufficiently socially disruptive that the following question would arise: why not amend the Constitution to retrospectively legitimate them?

      I once put that question to someone invoking The Constitution! and asked him what he thought. He was offended by the very idea that I would ask him to attempt to formulate a principle of action based on some notion of abstract justice. The Constitution! defines what should and should not be done, just as it was in 1787. “Constituional conservatism” is typically vapid. (And, in any case, pays no heed to Catholic Social Teaching, which pays no heed to Mr. Madison’s words even if people wish to put them on stone tablets).

      • Tradmeister

        If they are unconstitutional, they are unconstitutional. They don’t suddenly become constitutional because of how long they’ve been around. If one cannot care about the constitutionality of the programs already in place, then one shouldn’t bother us with constitutionality questions about Obamacare. It’ll all be fine in 30 years, right?

        How a program could be dismantled and phased out is a separate matter. It could be done if the genuine will were there.

        Not that I’m necessarily advocating that. You raise an important point that the constitution is not well aligned with Catholic teaching. So if something is unconstitutional but properly serves the common good in the eyes of Catholic doctrine, well that’s no all that bad.

        • Art Deco

          Tradmeister, read Robert Bork’s Tempting of America on the principles of evaluating statutory legislation.

    • Art Deco

      I suspect the near-silence I hear comes from political calculation far more than constitutional-statutory principle.

      Politicians do tend to be resistant to the notion that they should tell ailing septuagenarians that they should be rugged individualists starting next month. Funny ain’t it?

  • John O’Neill

    By forcing Americans to pay taxes in order to fund obamacare we are now participants in the killing of babies. Obama care makes us all guilty of this horrendous practice of destroying young life; thus it is somewhat different from medicare etc; since it directly targets the full funding of the abortion industry by the American government. It should be difficult for anyone who stands as a Catholic to defend the present American government in any way whatsoever; German Catholics were vilified for not standing up and opposing the Nazi extermination policies so should American Catholics be treated.

  • Adam__Baum

    What’s incredibly sad is that a great many people think the Court that gave us Plessy v. Ferguson, Buck v. Bell, Wickard v. Fiiburn, Korematsu v. U.S. and Kelo v. New London and innumerable lesser travesties serves as a brake on the excesses of government. Torturing plain language to excise some hidden meaning (witness the “unenumberated penumbrae” contrivance of Roe v. Wade) isn’t jurisprudence, it’s thinly veiled pretense.

    As the the Obamacare decision was being decided, both Obama and Leahy made speeches that were little more than implicit threats against the power of judicial review by the Court (arrogated by Marbury v. Madison). Roberts rolled rather than risk the power and prestige of the SCOTUS, telling us Obamacare was a tax, but forgetting tax bills must begin in the House, rather than the Senate.

    The true reality is that the present situation didn’t begin in this century, but the Nineteeth. Lincoln’s wartime income tax was a book of matches in the hands of progressive pyromaniacs, they were relentless in pursuing it, until they enacted the Sixteenth Amendment in 1913.

    Money is the mother’s milk of political power, and a national debt “officially” at 17&, soon to be 18 Trillion attests to the fact that politicians appetites for OPM are insatiable.

    Some day, the Treasury Secretary will start acknowledging calls from our internation creditors, expressing concern that the creditworthiness charade is no longer sustainable.

    Obamacare’s death panels will kick in,restricting protocols and formularies in the name of fiscal responsibility and the old and infirm will be given the Alinsky treatment-isolated, frozen, targeted, just the way the Jews were in Germany before Hitler warmed up the ovens.

    Welcome to Logan’s Run, where you can have anything you want, except some birthday. It won’t be the 30th, at that point, you are still an asset to the feudal master, but a future Bernie Sanders will be asking how much is enough, not about income or wealth, but lifespan.

    • tamsin

      Well, future Bernie Sanderses won’t exist in the sense that he’s already past his 70th birthday.

      • Adam__Baum

        Have no fear, members of Congress will be exempt from Obamacare.

        All animals are equal, but some animals are more equal than others.

        Remember how Congress set up a secret bomb shelter for itself and its friends under the Greenbriar Hotel?

        • slainte

          Adam_Baum, a friend recently posted a response in a local newspaper to a Congressman’s support of Obamacare funding in light of Congressional exemptions. It reads as follows:

          “Representative Himes,

          In response to your e-mail praising Obamacare, if this program is so good, why did the Congress secure an Office of Personnel Management proposal to exempt yourselves from some
          of its provisions? (See

          Can you secure a similar OPM proposal to exempt me, my family and friends from those provisions? As to your opposition to the budget passed by the US House of Representatives which defunds ObamaCare, why do you want to shut down the
          government in order to protect the funding of a program you exempt yourself from?”

  • tom

    There’s been a juridical coup d’ etat in America. it didn’t start with Roberts and even pre-dates Rowe vs. Wade. the best date may be 1954 when Alexander Bickel…working for the plaintiffs with Thurgood Marshall, Esq,…..formed their briefs with the aide of Mr. Justice Felix Frankfurter, who would hear the case, supposedly as an impartial jurist.

    That was the beginning of two concepts:

    1. The end justifies the means.

    2. This is a nation of men, not laws.

    After Brown, Rowe was a lay up and Chief Justice Robert’s twisted Obamacare logic a grievous personal failure and a meditation on behalf of judicial tyranny.

    The courts, at the state and federal levels, are largely made up of appointed Left-winged, tyrants, determined to destroy this Republic. We’re only 60 years into it.

    • Adam__Baum

      Look further back to John Marshall and the legal legerdemain that was Marbury v. Madison (1803). You notice how quickly that Fifth Circui judge made Eric Holder affirm that role when some staffer implicitly questioned the jurisdiction of the court and the right of judicial review?

      • tom

        Well, every slippery slope has to start somewhere. I pin it with the blatant dishonesty of Franfurter-Bickel in ’54. As an amateur writing analyst, I can tell you Eric Holder’s signature is downright scary. He’ll do ANYTHING to stuff his agenda down Uncle Sam’s throat and then join Hannibal Lector for Happy Hour chuckles. Thanks for the article.

      • Art Deco

        Not stipulating your assessment of Marbury v. Madison, does it occur to you that if the constitutional process was corrupted as early as 1803, maybe the process had some design problems?

        • Adam__Baum

          Of course there were design problems-nothing is perfect in this world.

          A constitution (or by-laws, or any other such document that provides for limits) is by it’s nature a system of internal controls.
          There’s a couple of things that you learn about internal controls: They are never perfect, or complete, individuals will inevitably exploit the errors or omissions that exist. That’s why there was an amendment process.

          So what’s your point?

          • tom

            Let’s emasculate the courts, promptly!

            • Art Deco

              The problem is the appellate courts meddle a great deal but do not protect us very much. You recall Bruce Ivins? How much do you want to wager that his suicide was the result of advice from his lawyer. His life savings was spent and he was never even indicted.

              Federal prosecutors are the most appalling. However, I recall a case out of south Florida where local prosecutors put a man on trial for murdering his wife eight years after her death. Their thesis rested on three absurd foundations. 1. That the man would ‘go home for lunch’ when he was working at a construction site sixty miles away from his home; 2. that the five employees of his company who testified that he was that morning and afternoon at this work site were all mistaken (he’s their supervisor and he disappears for three hours and they do not notice); and 3. that the neighbor who testified as an earwitness to an argument in his home that afternoon is one of those oddballs whose memory gets better with time. She offered that testimony at trial in 2008 but statements taken from her in 2000 mentioned no argument. This unfortunate contractor ended up $400,000 in debt to satisfy this prosecutor’s malice. The judiciary did not protect him. Prosecutors and judges have absolute immunity for their abuses.

              Two out of the three judges who presided over hearings in the Duke rape case were accomplices of Michael Nifong, one of the three judges assigned to the Zimmerman-Martin case was an accomplice of the abusive prosecutors there. Judges do not protect us when it counts. But they tell us what social policy must be.

          • Art Deco

            My point is as follows:

            In political discussions in this country, people get lost and conflate procedural regularity and transparency with justice. You can see that in “Tradmeister”‘s remarks above and, in general, it is modal in discussions of this sort. The Constitution of 1787 delineated a piece of political architecture. It did not constitute the last word in political architecture much less an idealized political economy.

            The Constitution has problems in need of correction; most starboard discourse assesses the problems in a manner familiar to fans of the Dilbert strip: re-classify the bugs as security features to make the ship date.

            “Well you have to go back to…” is often a self-aggrandizing formulation, a way of one party to dismiss the other party’s point as (comparatively) superficial. Since any historical event is preceded by another event, such an argument is usually available.

            IIRC (and I am referencing Bork here best I can) judicial invalidation of statutes was quite unusual during the antebellum period. There was an article on this in First Things a while back (by Mary Ann Glendon? I cannot recall) which made reference to about 20 or so refusals to apply statutes, generally unremarkable. Glendon has offered that the ‘freedom of contract’ incorporated into the Lochner decision was not correctly formulated but not conjured ex nihilo and was an extension of common law jurisprudence. (I tend to trust Glendon, but I am out of my depth). During the period running from 1937 to 1955, you saw a different phenomenon: multiple instances of appellate courts putting their imprimateur on exercises of executive and legislative power that were not delegated (ultimately erasing the distinction between inter-state and intra-state commerce; Justice Bryer fancies a drug deal going down on the sidewalk is ‘interstate commerce’).

            Prior to 1954, the judiciary may have been episodically scandalous (see Roger Taney), but policy-making by the appellate judiciary was not all that common. What changed was the professional and academic culture of the Bar).

            I do not have subtle mind nor much context. The decision in Marbury v. Madison seems adequate to me. Bork’s view is that the argument of the decision is valid, just that Marshall deliberately misconstrued the Judiciary Act of 1789 to reach the decision.

            Which brings us to institutional defects. What we have discovered since 1954 is that we have a system where the discretion of deliberative and electoral institutions is dependent on the professional and academic culture of the Bar and you have a critical mass of the attentive public (and most of the elite) who are perfectly happy with the superimposition of the opinion of the legal academy over the rest of us. The ingenuity of the portside is remarkable: they manage to be pretentious and sociopathic and the same time.

            The Constitution is a train wreck. It is not clear how to repair this problem as those who like the status quo (and get what they want from it) can block repair. What might give you a fighting chance would be (1) devolving advice-and-consent functions to state legislatures, (2) subjecting federal judges to mandatory retirement and retention referenda, (3) allowing regular convocations of local councillors or state legislators to invalidate judicial precedents and ban any further citations of disgraced precedents in decisions and briefs, (4) placing explicit language in the constitution anathematizing Wm. Brennan and his methods and his ilk, (5) providing for recall of federal judges, (6) providing for expidited impeachment of judges.

            • Art Deco

              To correct and clarify, IIRC there were three judicial invalidations of statutes during the antebellum period and about 20 in the latter third of the 19th century.

  • tom

    Perhaps it started when federal judges decided a public school education was a “property right”? it meant we have to spend upwards of $300,000 per student who will never learn how to read before heading to jail where it costs $147K/yr. (at least in NYC’s Riker Facility) to warehouse him?

    Perhaps it was the judges who ruled hospitals must treat everyone with or without medical insurance, with or without citizenship? Or, could it could be Justice Arthur Goldberg’s preventing most executions of convicted murderers for decades…just for the fun of it?

    Maybe it’s the judges decreeing that civil service appointees must be in direct proportion to their group’s prevalence in the population, regardless of how dumb the candidate may be?

    It’s pretty obvious our judges need to be emasculated if America is to survive.

    They are the enemy within, free from any thought of judicial restraint.

  • Tony

    I’m waiting for people to begin to engage in civil disobedience against lawless Court decisions, on a grand scale. Don’t like the old-fashioned pious banner that’s been hanging in the high school down the street (Cranston, RI)? Fine — now look at the ten banners we’ve put up for every one you’ve taken down. Don’t roll, people, don’t do it.

    • Adam__Baum

      It better happen soon. The young of today are being conditioned to accept the diktats of petty public school bureaucrats, every day.

  • tom

    When “the end justifies the means” crowd holds sway, all bets are off and legal debates merely amusing to them. They force communities to be hopelessly in debt, and merit to be flushed down the toilet. They control universities and force students to parrot what is their tyrannical rule. They hold “life” itself as unprotected but erect special protections for murderers. They turn the world upside down and profit from their efforts. It is the chaos unleashed on a wary populace, with designs to change and chain each individual.

    This is not the stuff of law and judges and thoughtful deliberation. This is a beast that must be slayed on street corners, It devours our God-given rights as individuals, even as it executes the Almighty after parading Him through the streets for ridicule. Marbury and Madison are in a different, less deadly, arena. This game’s for keeps.

  • Grizzly Bear

    An Executive Order will put the budget straight and beware of mixing politics with money and the Church… This is exactly what the Pope was referring to when he said the church needs to get out of political-campaign-theology!