Obamacare and the Revenge of the “Secret Constitution”
The function of the judiciary is liturgical: It transmutes the restrictive language of the constitution into a mandate for government action. This process is called “state-building” – and the purpose of the judiciary, insists Professor Jack M. Balkin of Yale Law School, is to “ratify significant revisions to the American social contract.”
According to Balkin, “the most important function of the federal courts is to legitimate state building by the political branches.” It does this by supplying the appropriate scholarly conjurations every time those in charge of the State seek to enrich their powers at the expense of individual liberty.
In this fashion, the relatively modest constitutional state of the early 19th century – which, Balkin notes with palpable disapproval, “didn’t do very much more than national defense and customs collection” – built itself into the omnivorous monstrosity he calls the “National Surveillance State.” This is an entity that claims the authority to slaughter, torture, and imprison anybody on the planet for any reason. From Balkin’s perspective, the role of the courts is not to protect the rights of the individual, but to issue the occasional theodicy justifying the inscrutable ways of the divine State.
“Whenever the federal government expands its capabilities, it changes the nature of the social compact,” writes Balkin in The Atlantic. “Sometimes the changes are small, but sometimes, as in the New Deal or the civil rights era, the changes are big. And when the changes are big, courts are called on to legitimate the changes and ensure that they are consistent with our ancient Constitution” – a procedure that frequently involves subjecting language to treatment that even Dick Cheney would describe as torture.
In order for this to work, candor must be scrupulously avoided, and the pretense of constitutionalism must be preserved.
“Courts do not simply rubber stamp what the political branches do,” Balkin asserts. “Rather, they set new ground rules. The government may do this as long as it doesn’t do that. Legitimation is Janus-faced: it establishes what government can do by establishing what the government cannot do” – at least, for now, until those running it decide that the time has come to do what was previously impermissible.
That’s what happened in the Obamacare ruling, Balkin concludes: “The political branches sought to build out the American state and change the terms of the American social contract. The Court legitimated this result, but set new ground rules for politics going forward.”
As he points out, both branches of the Establishment party want to continue building the Leviathan state, albeit in the service of different constituencies: “Most Republican politicians don’t actually want to strip the federal government of most of the powers to regulate, tax and spend that came with the New Deal. This is because Republican politicians want to use those powers to promote Republican policies….”
Thus it was exquisitely appropriate that the Supreme Court’s ratification of “the most important piece of social welfare legislation since the 1960s” came in a majority opinion written by a Bush-appointed Republican conservative. After all, we should expect adherents of the Party of Lincoln to be doing the works of Abraham.
In his book Our Secret Constitution: How Lincoln Redefined American Democracy, George P. Fletcher, a Marxist Columbia University School of Law professor, describes how the mission of Abraham the Destroyer was not to preserve the constitutional union, but rather to impose a new order – one created through aggression by the central government against the states that created it, and the people from whom it supposedly derived its powers.
“The new order inherits an operating Congress, Executive, and Judiciary,” writes Fletcher, and although federal institutions have been “recast in new functions, the forms remained the same.” Behind a change in federal functions is a new ruling ideology, in which the central government elite now acts on “the consciousness of setting forth a new framework of government, a structure based on values fundamentally different from those that went before.”
Any governmental charter permitting seizure of property through “eminent domain” and the suspension of habeas corpus (the irreducible due process guarantee) for anyreason is latently totalitarian at best; those provisions offer a glimpse of the “secret constitution” described by Fletcher, in which federal power is limited only by the ingenuity and brazenness of those who wield it.
Many conservatives reacted to Judge Roberts’ Obamacare ruling by giving voice to the same pious outrage they express every time the Supreme Court redefines the “social contract.” A healthier reaction would be to ask: Why should any individual be governed by a “contract” that he never signed, and that the other party can unilaterally revise at its pleasure?