Why conservatives should want the Supreme Court to uphold Obamacare

Oral arguments over the constitutionality of the Patient Protection and Affordable Care Act will wrap up Wednesday. The Supreme Court is expected to issue its ruling in June. In the meantime, conservatives, constitutionalists and libertarians will anxiously await the Supreme Court’s decision, hoping that the justices find the mandate unconstitutional. They should be hoping for the opposite.

To be clear, the mandate is absolutely unconstitutional. The commerce clause was never intended to allow the federal government to micromanage every aspect of commerce (it was intended to allow Congress to “make regular” commerce between the states by prohibiting tariff wars between them), and the power to tax does not carry with it the power to compel a purchase that otherwise would not have occurred.

Constitutionally minded individuals generally agree with that argument, and therefore want the Supreme Court to rule against the mandate. This is understandable, and a nearly universal opinion amongst this group. But in the long run, the goal of upholding the Constitution and promoting conservatism or libertarianism would actually be better served by the court declaring that the mandate is constitutional.

Too many Americans today wrongly believe that the U.S. Supreme Court is the sole and final arbiter of what is or is not constitutional. Questions of a law’s constitutionality thus become held hostage to the opinions and preferences of a small, elite group of lawyers dressed in black robes who are expected to keep the rest of the federal government in check — as if in a battle between the states and the federal government, a branch of that very federal government would be completely free of any conflict of interest.

James Madison, the father of the Constitution, held an opposing view. Writing in his Report of 1800 regarding the Virginia Resolutions passed two years prior, he explained that even the Supreme Court’s power must be checked by the states:

The [1798] resolution supposed that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution [the states], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

In other words, Madison saw the states (being parties to the constitutional compact) as having the authority and ability to determine a law’s constitutionality and take appropriate action based upon whatever decision they make. While the Supreme Court could hopefully be of help in checking Congress and enforcing the terms of the Constitution, Madison knew that it could not be relied upon to perform this task in every case.

Numerous other statesmen from the founding era concurred with this view, recognizing that the Supreme Court would not necessarily be comprised of infallible constitutional experts, and that the judges themselves might be the instruments of tyranny in upholding federal powers that were not authorized by the Constitution. They therefore advocated, in unison with Madison, a state-based remedy.

In an 1820 letter, for example, Thomas Jefferson rebuffed the notion that the Supreme Court’s judges should be the “ultimate arbiters of all constitutional questions.” He wrote that it is “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.”