Structural ruin

Joseph F. Petros III Former Executive Editor, Notre Dame Journal of Law, Ethics & Public Policy
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Most conservatives’ initial reaction to the Supreme Court’s ruling on the health care law was to lament the decision of five justices. And rightfully so. The court’s majority, led by Chief Justice John Roberts, accepted an argument that every lower court (and, honestly, the lawyers for both sides) dismissed out of hand. The court essentially held that Congress can enforce, by monetary penalty, any requirement it wishes to impose. It can even call it a penalty. In the eyes of the court, it’s just a tax.

But in focusing only on the court, we miss the forest for the trees. Worthier of our lamentation than the decision of five people is the overall state of American political thought that has brought us to this point in the first place.

Simply put, we have forgotten what makes America great. We have forgotten what has enabled our society to become the most prosperous and most stable the world has seen. The dissenting justices in the health care decision offered a reminder of the increasingly neglected key to our greatness: structure.

We have, for over two centuries, had the luxury of calling ourselves a free people because our founders had the wisdom to institute a governmental structure that is well in-tune with the requirements of human nature. The structure of our federal republic ensures that the issues of greatest common interest are specifically enumerated to a supreme central government, while most issues of more particular interest are left to state governments and their local subsidiaries, which are closer to their citizens and can better respond to them.

Structure also tempers the effects of the natural human thirst for power. This thirst is not always malicious — in most instances, it is simply politicians’ desire to solve social problems according to their own ideas. Nevertheless, it is just as dangerous when concentrated power can be asserted over such a large, diverse group of people. Thus our Constitution, in more ways than one, sets government against government: state against federal, House against Senate, legislative against executive against judicial.

Sadly, in the modern political universe, structure is a forgotten concept. Few fully understand it. Fewer care about it. In social studies classes, many teachers require their students to memorize the Bill of Rights. Yet how many require their students to memorize the enumerated powers of Congress? How many even require their students to read the original part of the Constitution at all? I’m willing to bet most graduating high school students (even most graduating college students) have no clue that the federal government is limited to specifically enumerated powers.

And yet the dissenting justices remind us: “[T]he Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment.” The original Constitution is a structural document, meticulously dividing power and listing the specific powers of the potent federal government. The Bill of Rights was an afterthought — and really, it is not unique. As Justice Scalia often notes at speaking engagements, the Soviet Union had one of the most extensive bills of rights of any nation in history. Without structural limits on power, it meant nothing. Words on paper are easily trampled. Other human beings competing for power are not.

The entire health care saga reveals that Americans and their elected representatives no longer think about structure. They see no problem in turning to the federal government to solve any problem in any way, regardless of whether it is structurally proper for it to do so. Nancy Pelosi made quite clear how deeply she considered the structural, constitutional merits of the health care law. Her response when asked which part of the Constitution authorizes Congress to order Americans to buy health insurance: “Are you serious? Are you serious?”

The demise of structural analysis in politics is a fundamental problem that extends far beyond five individuals in the third branch of government. As a people, we have forgotten why America came to be called the Great Republic. That is the real tragedy. Such a Great Republic cannot be sustained by nine people. It is a gift given to us all by our founders, and we are all responsible for letting it slip away.

Joseph Petros is an associate at the law firm of Warren and Young PLL in Ashtabula, Ohio. He is a graduate of the University of Notre Dame and the University of Notre Dame Law School, where he served as executive editor of the Notre Dame Journal of Law, Ethics & Public Policy.