Imperator Supremum Iudictorium
I wonder what it looked like, the day the Republic ended and Octavius began his reign. Did commerce still move, did crops still grow? Did Romans conduct their affairs the day after Octavius became Augustus in 27 B.C. largely the way they had the previous day? Did they dismiss the arrogation of power to “the August One” as a mundane political intrigue with no immediate significance for the chores to be accomplished before nightfall? Did anything tell them they would go to bed a Republic’s citizens but rise an Empire’s subjects?
I suspect the answers are Yes, Yes, Yes, and No. Mostly it’s difficult to see sea-changes when you are in the midst of them. Those who are busy with the routine of living don’t pay close attention to the portents, and those who closely follow the portents are often so far down in the weeds that it’s hard to stitch the details into a coherent picture.
But there are times we must set aside routine, we must clamber up from the weeds, and give events our concerted attention. Of these times, I think, are the last few days.
If we are to take them at their word, our Supreme Court justices have announced a new relationship between them and us. It is, in a sense, a new Declaration of Independence. But in contrast to the original, this one declares the State’s independence from the people from whom it derives its authority. The justices all seem to agree this has happened, although they are divided on whether it is a positive development. In light of this apparent agreement, we would do well to take some time to digest its meaning in a careful and deliberate way.
There is a terrible secret that lies at the heart of our Constitution, and it is this: It is extraordinarily fragile. When we formed the government of the United States, we furnished it with enough power that, should it wish, it could master us in a moment. So, to maintain our mastery over it, we lent it only limited authority to use that power, and what authority we delegated, we divided between three branches that we set at odds with each other. Diffused and finite, we trusted the authority could not be usurped or enlarged.
The weakness lies in the unavoidable fact that the chains we forged to restrain the State are made of nothing but words. We wrote our words into a Constitution, and entrusted it to people who, we believed, would be faithful. We regularly send our representatives to Washington to adopt new words of law with the expectation they will conform to the Constitution and be obeyed by all. We appoint judges, who we commission to do one thing, and one thing only – apply the words of law to the cases before them, subject always to the words of the Constitution. And finally, we elect a president to carry those words into practice.
But words have no force of their own. Their strength comes entirely from the good faith of those to whom we entrust them. It would be, therefore, a matter of the gravest importance should our public servants decide they are not bound by the words of law we give.
It is true that those servants have been chafing at our words’ restrictiveness for decades. But they have at least maintained the pretense that they are subject to them. It appears they may no longer feel the need to do so.
On Thursday, the Supreme Court released its opinion in the case King v. Burwell, 576 U.S. ___. The Court’s task was to determine whether the law allowed tax credits for those who purchase health insurance from an exchange established by the federal government. The law said the credits were available only for those who purchased a policy from “an Exchange established by the State.” (Emphasis supplied).
The Court acknowledged that the language, as written, did not include federally-created exchanges. It also admitted that giving the language its natural meaning would make tax credits unavailable to those who purchased their insurance on a federal exchange.
Nonetheless, out of a desire to see Obamacare succeed, the Court chose to loose itself from the statute’s words. “Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts,” the Court said, which “compel[s] us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Of course, we never gave the Court authority to say what the words of law ought to be, only what they are.
That distinction means all the world. If the Justices do not understand themselves as bound by the words we give them, that they may instead remake them as they believe they ought to be, then we have no tools by which to make our laws known. No way to inform our public servants of their duties and obligations. No way to constrain the State.
If words can no longer command the Court, then the Court acts independently of us – we, the People, who are the givers of the law. A declaration that the Court will not be constrained by the words of the law is a declaration that it has itself become the law. And if the Court is the law, then we are not a self-governing people.
Which is precisely what Justice Scalia said has now occurred. In his dissent from Friday’s opinion in Obergefell v. Hodges (which mandated the nationwide recognition of same-sex marriages), Justice Scalia observed that, at long last, we have reverted to the status of subjects:
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
We, today, no longer have a democracy, much less a republic. Justice Scalia said the Court’s opinion was “a naked claim to legislative – indeed, super-legislative – power; a claim fundamentally at odds with our system of government. . . . . A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
Justice Thomas sees it too. He recognized that the Court declared its independence from, and mastery over, we who created it: “This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic.”
This is the fragility of our system, the powerlessness of our words. All it took for our constitutional order to dissolve was the discovery by a handful of lawyers that they don’t really need to submit to the words of law. And so the Court is now our Ruler, and we its subjects.
How big of a problem is this? Well, Justice Scalia puts Friday’s decision on the same plane of unlawfulness as the act that catalyzed our Revolution. He says this “judicial Putsch” violates “a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Justices Scalia and Thomas left us no room to doubt what has happened. They are both pointing to the gauntlet the Court threw at our feet, the challenge to our claim to be free people. If we allow this usurpation to pass unremedied, if we do not pick up the gauntlet, then our ancestors and offspring will condemn us as the generation that surrendered the last, best hope of mankind.
So. Is it time to go back to the beach, or should we do something about this?