Friday, June 29, 2012

If SCOTUS says something is constitutional, is it constitutional?

Many on the left are making hay with Sen. Rand Paul's comments yesterday about the Supreme Court's ruling on health care reform.
The Supreme Court wrongly concluded that Obamacare can stand. But just because a majority of the Supreme Court declares something to be “constitutional” does not make it so.
Before we go too far with that, I'd suggest that it's important to think about how his statements differ from those we've heard from the left about Citizens United or Bush v Gore. Or how about going back in history and asking whether - in 1896 - it would have been correct to say that Plessy v. Ferguson was constitutional.

The truth of the matter is that when the Supreme Court says something is constitutional, in all practicality, it is constitutional. In other words, it becomes applicable law...end of story unless and until they change their minds.

That creates a tension because - since the Supreme Court is still made up of 9 imperfect human beings - they sometimes make the wrong call.

I think this tension is created because we tend to want to venerate what is constitutional to some rarified state of infallibility. I liken it to how some Catholics see dispensations from the Pope and how many Protestants view the Bible. As human beings we long for some set of rules that we can point to and say they are definitive.

But we're fooling ourselves when we go there. It doesn't take much reflection to see that even the Constitution itself was deeply flawed from the get-go. It is NOT the stuff of "divine inspiration." And to assume that either the document itself or its interpretations by the Supreme Court carries that kind of weight is a fools errand.

What we have in a democratic republic is instead - as James Fallows wrote - a set of norms with which we the people comply.
Liberal democracies like ours depend on rules but also on norms -- on the assumption that you'll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy.
The risk - and potential danger - of questioning the constitutionality of what the Supreme Court declares is constitutional is that it undermines those norms. There might be a time and place for that. But we'd better be VERY aware of the consequences.


  1. In jurisprudence, this is taught as the "is/ought" distinction. Like the rest of us, Sen. Paul can debate what the law "ought to be" as regards the U.S. Constitution. But the Supreme Court decides what the law "is."

    Good day and good nuts.

  2. A very helpful distinction. Thank you.

    So what Sen. Paul did is to confuse the idea of what is constitutional with what he thinks "ought to be" when in fact, it is what ever SCOTUS says it is.

    I think that's a mistake people often make.

    1. Ignoring the "is/ought" distinction is very common among politicians and pundits. The First Amendment gives us the right to debate what the law "ought to be" without fear of government censure. President Obama could and did criticize Citizens United in his State of the Union Address, without fear of a contempt of court citation. That freedom to speak in dissent about what the law "ought to be" is one of our most cherished American values.

      But consider the famous "Letter from the Birmingham Jail" was written from the Birmingham Jail. Dr. King recognized that he had broken the law as it "was," and his letter did not argue the Birmingham police had no legal authority to arrest him. He argued that the law was unjust -- it was not what it "ought to be" -- and both the courts and history have judged him right.

      Recognizing the law as it "is" lies at the core of both civil society and civil disobedience. If Sen. Paul wants to criticize the Court and debate what the law "ought to be," he's free to do that. On the other hand, when state governments ignore the Court, in defiance of what the law "is," they engage in civil disobedience and may risk legal sanction. On the Affordable Care Act, I doubt future laws or history will judge them right.

  3. In AA, we would tell Rand Paul to deal with life on life's terms.

    Great discussion about the non-divine nature of the Constitution. I do not understand why it is so important for some people to have it be like one of Moses' tablets.

    I haven't finished my first cup of tea, so that's all the thinking I can do.

    1. When I was writing about "norms" I was thinking about our conversation on twitter last night.

    2. I enjoyed it tremendously, almost as much as the few tunes I played a few minutes after we finished. I was at a cafe w wifi awaiting my set at an open mic.

      Your point that we better be aware of what we are doing when we try to move past norms is spot-on. Lots of people (I've been quite guilty myself) imagine they are transcending norms when in fact they're just selfishly breaking rules. Going outside normative behavior is going into uncharted territory and should be done cautiously, and to build up new, better norms.

  4. Rand Paul is saying exactly the same thing that (mostly) southerners said after the Brown decision. They invented all kinds of arguments about how they could ignore the Court's ruling or pretend it did not exist. People like Rand Paul still haven't quite reconciled themselves to civil rights. For that matter, they haven't reconciled themselves to the fact that the South lost the Civil War.

  5. Your comment is so very true. There are still some people in the south who call the Civil War the "Northern War of Agression", which makes it sound as if the South was some kind of innocent victim that got jumped by the North for no good reason. As for Rand Paul and his comment, as an African-American person I have absolutely no trust in the man, since I had to e-mail him and find out why he could not answer a simple question regarding his position on the rights of African-American people to live in this society with all the rights of free citizens. His arrogant bull-headedness makes him bold enough to question the legitimacy of the Supreme Court's decision.

  6. The underlying statement behind everything Rand Paul says and what the Tea Party declared in 2010, is we consider things constitutional only those things we want to be constitutional.

    But, while Conservatives believe they are inheritors of the Founding Fathers vision what they are doing is the work of the Plutocrats.

    The 1% has no need of a society other than to provide a paramilitary Law Enforcement which visciously beats down domestic threats like OWS and #Occupy and uses the militayr to open up overseas markets fro them to exploit. Everything else is unconstitutional, in as much as it does not aid their hegemonic control.

    And that is what Rand Paul is saying, as Obamacare does not aid the Controllers of Society it is ipso facto unconstitutional.