What happens to a Republic under a written Constitution if a majority of the Supreme Court, which is empowered to interpret that Constitution, goes rogue? What if the court's majority simply ignores the wording of the founding document and makes up the law to serve some partisan end? Does that, in effect, turn the country into a lawless state where raw power can muscle aside the democratic process?
Something very much like that could be happening if the Supreme Court's five Republicans continue on their apparent path to strike down the individual mandate at the heart of the Affordable Care Act. In doing so, they will be rewriting the Constitution's key Commerce Clause and thus reshaping America's system of government by fiat, rather than by the prescribed method of making such changes through the amendment process.
The only way the five Republicans can strike down the individual mandate -- and with it probably the entire law -- is to ignore the literal and traditional interpretations of the Commerce Clause by redefining the word "regulate" to mean something it has never meant before and that the Framers of the Constitution never intended.
The plain text of the Commerce Clause -- Article 1, Section 8, Clause 3 -- is so straightforward that a middle-school child should be able to understand it. Here it is: "Congress shall have Power" to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
And the word "regulate" means today what it meant then, as was noted in a Nov. 8, 2011, ruling written by Judge Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit, a conservative appointee of President Ronald Reagan.
In upholding the individual mandate as constitutional, Silberman wrote:
"At the time the Constitution was fashioned, to 'regulate' meant, as it does now, '[t]o adjust by rule or method,' as well as '[t]o direct.' To 'direct,' in turn, included '[t]o prescribe certain measure[s]; to mark out a certain course,' and '[t]o order; to command.' In other words, to 'regulate' can mean to require action."
So, for the individual mandate to clear the Commerce Clause hurdle, it must be a regulation of commerce among the states. Everyone agrees that health care and health insurance are interstate markets. Check. Everyone also agrees that health care and health insurance are commerce. Check. There's also no dispute that the individual mandate is a form of regulation. Check.
Judge Silberman went through the same check list and concluded that there was "no textual support" in the Constitution for striking down the individual mandate because the word "regulate" has always included the power to compel people to act.
But the law's opponents insist that the individual mandate is a unique and improper form of regulation because it forces an American to do something that the person might not want to do, i.e. go into the private market and buy health insurance.
Yet, in other enumerated powers, this idea of Congress having the power to compel people to act is widely accepted. Take, for example, the draft. While there is not currently a draft, there has been at many points in U.S. history and even now every male citizen, when he turns 18, is required to register for selective service. And, should the draft come back and should you get drafted, you would be legally compelled to serve.
If compelling individuals to risk their lives in war is an accepted use of congressional authority, it is hard to see the logic in striking down the power of Congress to compel individuals to get health insurance.
Washington and Madison
And, despite what the Affordable Care Act's critics have said repeatedly, this is not the first time the federal government has ordered Americans to buy a private product.
Indeed, just four years after the Constitution's ratification, the second U.S. Congress passed the Militia Acts of 1792, which were signed into law by President George Washington. The militia law ordered white men of fighting age to arm themselves with a musket, bayonet and belt, two spare flints, a cartridge box with 24 bullets and a knapsack so they could participate in militias.
If one wants to gauge whether a mandate to buy a private product violates the original intent of the Framers, one probably can't do better than applying the thinking of George Washington, who presided at the Constitutional Convention in 1787, and James Madison, the Constitution's architect who served in the Second Congress and argued for the militia law. [For more, see Consortiumnews.com's "Madison: Father of the Commerce Clause."]