Why We Need a Constitutional Amendment to Protect Traditional Marriage

          by Diane Rufino

Years ago, and indeed, the whole of history, will show that marriage has always been intended to bind a man and woman together in a special union for the purpose of procreating and raising children.  It was not until 2001 that countries have begun allowing same-sex marriage. And the historical tradition makes sense.

In the Bible we learn the roots of marriage. In Genesis 2:7 we learn: “The Lord God formed man of the dust of the ground, and breathed into his nostrils the breath of life; and man became a living soul.” In verse 18, God said: “It is not good that the man should be alone; I will make him a helper.”  And so we learn, in verses 21-22 that “the Lord God caused a deep sleep to fall upon Adam, and as he slept, he took one of his ribs, and closed up the flesh.  And the rib He had taken from man, made he a woman, and brought her unto him.”

In 1 Corinthians 11:8-10, the Bible teaches “For man does not originate from woman, but woman from man; for indeed man was not created for the woman’s sake, but woman for the man’s sake. Therefore the woman ought to hold a special place… ”

Genesis 2:23-24 reads: “Adam said, ‘This is now bone of my bones and flesh of my flesh; she shall be called woman, for she was taken out of man.’ For this reason a man will leave his father and mother and be united to his wife, and they will become one flesh.”

The “helper” that God created for Man was a woman and not another man. It was woman that was intended to complement Man, not another man. The word “helper” that was used in the Bible to describe Eve means “to surround, to protect or aid, help.” Eve was created to be alongside Adam as his “other half,” to be his aid and his helper. A man and woman, when married, become “one flesh.” This oneness is manifested most fully in the physical union of sexual intimacy and then the mixing of a half complement of DNA from the father and a half complement of DNA from the mother to form “one complete” genetic offspring.  A child.

The New Testament adds a warning regarding this oneness. “So they are no longer two, but one. Therefore what God has joined together, let man not separate.” (Matthew 19:6).  It is from these Biblical roots that marriage has become so strong a union and one that society is cautioned to protect.

Even more fundamental are the scientific and biological laws that underlie the purpose and uniformity of life and existence here on Earth.  Scientific laws are essential to life because only then can actions and natural events be explained and even predicted.  Predictable scientific laws are the basis for free will. Biology teaches that all species are guided by certain biological imperatives, which are the requirements absolutely necessary to perpetuate their existence and their species. This is the core principle explaining Darwinian evolution.

In order for a species to persist, it must, by definition, reproduce to ensure the continuation of their species. Without reproduction the species ceases to exist. The capacity for reproduction and the drive to do so are  universal among living organisms, and as we know, they are expressed in a multitude of ways by the spectrum of living organisms. The urge to procreate is an involuntary and unconscious biological drive which first emerged as an inherent property of living cells and is echoed in the upper levels of organization of multi-cellular organisms. Self-preservation and reproduction are the strongest of biological imperatives. And it is for that purpose that we protect marriage as an institution and pay so much attention to the family structure and gender interactions. There is clearly a productive gender interaction and a counterproductive gender interaction. The former serves the interests of the laws of nature and the latter frustrates them. Left alone, without any cooperation from heterosexual unions, homosexuality would be an evolutionary cul-de-sac.

Understanding that homosexuals love the children that they raise together (but not conceived from their union) and want the best for them, their conduct is not of a natural design and their interaction as a “married couple” cannot satisfactorily stand in the place of a proper heterosexual married couple. Gender interactions, gender roles, gender inclinations, tendencies, proclivities, etc are all the crucial “unspoken” lessons that children need to learn to take their place in an ordered society.  Each parent, wired biologically and genetically through their gender, offers his/her child something unique and teaches something invaluably which guides that child through childhood, adolescence, and into adulthood so he/she can follow in the same natural footsteps.  Children in a non-traditional household (same-sex parents) are programmed differently and suffer psychological confusion that may or may not manifest itself later in life.  Physicians, scientists, and psychologists all understand that the mental and psychological development of a child is fragile and even as an adolescent, proper processing by the brain is often not possible because development of the brain and its connections are not complete.  Any biological programming which could serve to compromise the integrity of the species, its effectiveness to procreate, and its survival runs afoul of the laws of nature.  Eroding the blessed institution of marriage, protected for the purpose of procreation and the proper raising of children, and allowing and erasing gender requirements by its nature is against the normal and natural evolution of a species and its continuance of life.

There is no fundamental right to marriage.  It is not included in the Constitution’s Bill of Rights for a reason…  It was not considered one of those basic rights that would prohibit government regulation.  Judge N. Randy Smith, of the notoriously liberal Ninth Circuit Court of Appeals (in San Francisco), was correct in his dissenting opinion of the Prop 8 appeal: “The family structure of two committed biological parents – one man and one woman – is the optimal partnership for raising children.” He also said that governments have a legitimate interest in “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples” because only they can have children. He urged judicial restraint, that the justices should refrain from striking down Proposition 8.  [pg. 195]

[What was Proposition 8?  Proposition 8 – titled “Constitutional Amendment Initiative: Eliminates Rights of Same-Sex Couples to Marry” on the California voter ballot and called the “California Marriage Protection Act” by proponents – was a ballot proposition and constitutional amendment passed in the November 2008 state election. The measure added a new provision, Section 7.5 of the Declaration of Rights, to the California Constitution, which provided that “only marriage between a man and a woman is valid or recognized in California.”  By restricting the recognition of marriage to opposite-sex couples, the proposition overturned the California Supreme Court’s ruling of In re Marriage Cases which held that same-sex couples have a constitutional right to marry. The wording of Proposition 8 was precisely the same as that which had been found in Proposition 22, a statute which had passed in California in 2000.  But, as an ordinary statute, it was easily invalidated by the State Supreme Court in 2008].

Biblical and biological emphasis aside, I believe the Marriage Amendment as drafted in North Carolina for the primary vote on May 8th should not prohibit all legal unions between same-sex couples where legitimate contractual and property rights are involved, but only those  that involve the raising of children.  If two homosexual men or two women want to live together in a “committed type of relationship” and want enter into a contract for the purpose of protecting property rights (such as insurance, etc), then there should be laws to protect those contracts – just as it would protect other contracts.  Opponents of the NC Marriage Amendment are correct that contract rights are a fundamental right and ones very much on the minds of our Founding Fathers.  But the spirit of the Marriage Amendment is to define the institution of marriage as that between a man and a woman and to ensure that only such a union is acceptable for to bringing forth children and raising them so that there is a proper vehicle to instill historically moral and biological (gender) values.

It is unfortunate that the gay and lesbian agenda requires the erosion of such a fundamentally important institution and requires courts to get involved in a matter that was intended to be beyond the reach of judges.  We all heard of the old saying that when groups are unsuccessful in getting favorable legislation the legitimate way, they take their chances with liberal judges… and often win.  That is a sad state of affairs, especially considering that the strength of our nation rests on the fact that it is a constitutional republic… a nation of laws and not of men. For those who don’t or can’t appreciate the harm in getting the courts involved in the definition of marriage, check out the article written by Dr. Earl Taylor, current president of the National Center of Constitutional Studies, in April 2004 in which he discusses the topic of marriage and the US Constitution.  In his article, he asks the question – With the deplorable state of the wickedness and depravity which surrounds us now, should the Constitution be amended to define the institution of marriage?  He looked to renowned law professor Richard Wilkins for advice. Wilkins writes that years ago he would have suggested to leave the Constitution alone.  But, he notes, these are troubling times and now urges people to push for a constitutional definition of marriage.  He is quite serious when he states “Unless the people clearly establish the constitutional meaning of marriage, the judges will do it for us – and, in the process, erode the very idea of a written Constitution, expand judicial power and upset the vital balance of power established by the Framers of the United States Constitution.”

Richard Wilkins – law professor, former Assistant to the Solicitor General of the United States, and the founder and managing director of Defend Marriage (a project of United Families International) – explained why a constitutional amendment might be necessary:

“Ten years ago, I would have explained that amending the Constitution to define marriage is clearly wrong – for at least three important reasons.  First, the Constitution says nothing about marriage. Second, marriage is a question the Constitution wisely leaves to the people within their respective states.  Third, and finally, the last thing America needs is more powerful federal courts.  Why tempt the judges by inserting a new topic into the Constitution?  But that was then and this is now. Now, when I hear devotees of the Constitution repeat arguments that are almost a part of my DNA, I shake my head in disbelief.  The very concerns that, ten years ago, would have prompted my opposition to a marriage amendment now compel my support.

The Constitution says nothing about marriage.  But judges have.  (Likewise, the Constitution says nothing about abortion, but that hasn’t stopped judges from manufacturing a reference). Federal courts have managed to intrude in areas where the Constitution gives them no license to tread.”

It clearly appears that the Constitution was written to leave questions like marriage to the States.  Any constitutional scholar can attest to that.  Yet an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic and to bear true faith and allegiance to the same” has not been enough to prevent judges from giving us an entirely new Constitution.  In its decision in Lawrence v. Texas (2003), the Supreme Court, for the first time in history, announced that the Constitution prohibits state legislatures from treating homosexuality any differently than heterosexuality. Specifically, the Court said that challengers, Lawrence and Garner (homosexual lovers) were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause.  Justices William Rehnquist, Antonin Scalia, and Clarence Thomas opposed the decision.  But the majority did something extraordinary in that case; it did something it historically refrains from doing.  It reversed its earlier decision in Bowers v. Hardwick (1986), which held that the Constitution confers no fundamental right for homosexuals to engage in consensual sodomy.

Professor Wilkins asks: “What does this decision and this new Constitution do to marriage?”  He points to the state of Massachusetts as a perfect example.  He said: “The Massachusetts Supreme Judicial Court answered that question.  Relying on the  high Court’s decision in Lawrence , the Massachusetts court has allowed same-sex marriage. It merely relied on the reasoning of the US Supreme Court in that decision to interpret its own state constitution.”  The Mayor of San Francisco, Gavin Newsom, in unilaterally issuing marriage licenses contrary to controlling California law, likewise relied upon the reasoning of Lawrence to defend the legality of his actions.

Our Constitution, which once said nothing about marriage, now appears to says a lot about marriage.  (Just interview the mayor of San Francisco.  Why did he issue marriage licenses not authorized by California law?  ‘The Constitution demands it,’ he said.)  Wilkins asserts: “The last thing America needs is more powerful federal courts.”

Marriage is a question the Constitution wisely leaves to the people to decide in their respective states. And again the judges have taken that power away.  As Professor Wilkins wrote: “Whatever the Constitution once provided has changed.  All rules related to marriage have now been subsumed by a ‘constitutional analysis’ previously unknown to the law. State legislatures, and the people they represent, no longer control the meaning of marriage or the hundreds and thousands of legal rules associated with marriage. All such questions, henceforth, will be governed by decisions of state and federal courts. And, in light of the expansive ‘constitutional analysis’ adopted in Lawrence, those decisions will be guided neither by the words of the Constitution nor the traditions, history and actual practices of the American people.”

Wilkins went on to write: “In light of the foregoing, anyone concerned about preserving the structure and content of the American Constitution should understand why the words ‘marriage’ and ‘constitutional amendment’ need to be linked, to save the social viability of marriage, and integrity of the Constitution itself.”

The United States Supreme Court has demonstrated that it is capable of transcending not only the wording of the Constitution but the history, traditions and actual practices of the American people.  Even though the Constitution says nothing about ‘sexual liberty;’ even though the history, traditions and actual practices of the American people do not support an unrestrained ‘right’ for consenting adults to engage in any kind of sex they want; the Court has created this very right out of thin air.  Lawrence created this ‘right,’ not by relying upon the wording of the Constitution or the traditions and practices of American society, but by invoking (and I am not making this up) the ‘meaning of life’ and ‘mysteries of the universe.’

The judges are now so powerful that they feel free to invent the Constitution as they move along.  (If the definition of marriage – an understanding as old as time – violates constitutional strictures, one wonders what centuries’ old legal notions the “mysteries of the universe” will invalidate next.)  In light of these astonishing developments, it is absolutely clear why so many people are putting the words ‘marriage’ and ‘constitution’ in the same sentence.  An amendment is necessary to preserve not only the social viability of marriage, but the political integrity of the Constitution.”

But the Constitution provides for limited jurisdiction of the federal courts. In fact, the U. S. Constitution states:

“In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” (Article 3.2.2, emphasis added)

Some Constitutional devotees have relied on this clause to indicate all Congress has to do is pass a law limiting the jurisdiction of the federal courts. But this is not what it says. As Dr. Skousen, author of such books as The 5000 Year Leap, The Making of America, and The Naked Communist, explains: “This provision was not designed to give Congress the power to limit the jurisdiction of the federal courts, but simply to make decisions on many topics conclusive after a hearing in the lower courts. It was the purpose of the Founders to protect the Supreme Court from being submerged by a mountain of trivial cases when it should be concentrating its attention on matters of national importance.” ( The Making of America, p. 612. See quotes from the Founders on pages 612-613 to support this position)

Even if Congress were to pass a law limiting the kinds of cases which could be appealed to the Supreme Court, it may have the opposite effect. Imagine not being able to appeal sensitive cases to the Supreme Court. That would make the lower court decisions final. The lower courts have been just as active in destroying the Constitution as the Supreme Court has been, and there are so many more of them!  (Examples include abortion, flag burning, homosexuality, and pornography cases).

A much better solution is to begin to limit the jurisdiction of the federal courts to the eleven kinds of cases outlined in Article III of the Constitution. However, this still would not undo the damage of past cases.

And so Professor Richard Wilkins believes the only course left is for the good people of the United States to amend the Constitution to define the institution of marriage according to traditional values.  He believes that the traditional family is the vehicle of the decent, moral, and productive values of a free society.  He believes that if this vehicle is destroyed – if the family is destroyed – then we will see increased anarchy and eventually the country will be ripe for revolution or submission to government indoctrination.  (In fact, he believes that there are forces out to destroy the traditional family for this very reason).  He explains why the time is ripe for a constitutional amendment:

“1. A Constitutional amendment will restore the crucial understanding that American government operates under a written Constitution.

As Chief Justice John Marshall noted in the famous decision of Marbury v. Madison in 1803, America is governed by ‘a written constitution’ and ‘the framers of the constitution contemplated that instrument as a rule for the government of courts , as well as of the legislature.’  (Emphasis by Justice Marshall.)  Because the Constitution binds the courts as well as any other branch of government, judges should adhere to the text of the Constitution and interpret and apply its terms consistently with the traditions, history and actual practices of the American people.  Any other course, as Chief Justice Marshall noted in Marbury , ‘would subvert the very foundation of all written constitutions.’

Modern courts have dangerously ignored the teachings of Marbury. The ‘new Constitution,’ announced by the Supreme Court in Lawrence, frees judges from any need to tie their decisions to either the words of the Constitution or the traditions, history and actual practices of the American people.  Many people applaud the idea of a ‘living Constitution;’ a document that transcends words, definitions and the restrictive bonds of history and tradition.  But a document as fluid, unfettered and free as the ‘new Constitution’ unveiled in Lawrence bears little resemblance to the Constitution that, for most of its 215-year history, has demanded that the people (and not the courts) resolve society’s controversial moral and social debates.

Under the ‘new Constitution’ announced in Lawrence, the more divisive, difficult and debatable the controversy, the more likely it is that a court – rather than a legislature – will settle the matter.  Why?  Because (according to the judges, the law professors and other elites) the ‘meaning of life’ and the ‘mysteries of the universe’ become more and more important as social debates become more and more divisive, difficult and debatable.

Of course, this is not the Constitution the Framers intended.  It is not what the written text demands.  But it is what the courts have now decreed.  We need an amendment on marriage, not only to protect marriage, but to demonstrate to the courts that they exceeded their power in constitutionalizing marriage in the first place.

Modern courts feel free to ignore or alter constitutional text at will.  A constitutional amendment on marriage, by forcefully rejecting the judges’ latest excursion from constitutional text and history, will forcibly (and quite properly) remind the judges that their role is to adjudicate, not legislate.  A constitutional amendment is
necessary to revive the idea which provides ‘the very foundation of all written constitutions;’ that is, that the Constitution is ‘a rule for the government of courts , as well as of the legislature.’  Marbury v. Madison (emphasis in original).

2. A constitutional amendment will restore the proper balance of power between the judiciary and the representative branches of government.

Under the ‘new Constitution’ drafted by the Supreme Court in Lawrence, state legislatures may not ‘demean’ the sexual practices of ‘consenting adults’ that are closely connected to individual views regarding ‘the meaning of life’ and ‘mysteries of the universe.’  (For those of you who either aren’t familiar with legal lingo or simply like people to write clearly: legislatures may not suggest that there are any differences between heterosexuality and homosexuality.)  To reach this result, of course, the Supreme Court had to ignore the words of the Constitution and the history and traditions of the American people.  In their place, the Justices have given us a poem – a poem as vague, expansive or restrictive as the next metaphor or lyrical couplet favored by five members of the Supreme Court.

This departure from text, history and tradition is a serious matter.  It dramatically upsets the proper balance of power between the judiciary and the representative branches of government. If government action encroaches upon core constitutional values (as contained in clear constitutional text construed in light of actual American practice, experience and tradition) the judiciary must act.  But the Founders intended the judicial role to be exceptional and rarely invoked.  Alexander Hamilton, writing in The Federalist Papers, proclaimed the judiciary the ‘least dangerous branch’ because it does not create policy but merely exercises ‘judgment.’  The really difficult questions, Hamilton and the other Founders thought, would be left to the people.

Modern social activists (and too many judges) have either forgotten or chosen to ignore that most governmental decisions are not controlled (and can’t be controlled) by the precise language of the Constitution.  If the ‘correct’ answers to pressing questions are fairly debatable, those questions must be – indeed, can only be – resolved by legislative action.

The expanding reach of American constitutional law has rendered the public increasingly oblivious to its role as the primary source of decision-making power under the United States Constitution.   By inventing and enforcing ‘rights’ nowhere evident in the language of the Constitution or the history and traditions of the American people, lawyers, judges and law professors have slowly eroded democratic decision making, reducing or eliminating the people’s popular control over an ever-expanding range of fairly debatable controversies.

The Constitution was not drafted, nor was it intended, to turn over marriage and marital policy to the federal courts.  But, because the courts have now concluded otherwise, a constitutional amendment is needed to restore democratic balance.  Without a constitutional amendment, the Supreme Court – and not the people – ultimately will determine what marriage means.  With all due respect to the Honorable Court, this is too important a decision to be made by five people in black robes.

The question is: What does the Constitution demand?  I fully understand the concerns of those who assert that, since the Constitution has never addressed marriage before, it should not be amended to address marriage now. But whatever the Constitution said (or did not say) about marriage for the past 215 years, whatever the history, traditions and practices of the American people confirm (or do not confirm) about the meaning of marriage, marriage is in the Constitution.  The Founders did not do it.  But the courts have.

By placing marriage in the Constitution, the judges have taken marriage out of the hands of the people.  The judges have done violence to the very idea of a written Constitution, have eroded legislative power, and have significantly expanded their own power.  It is now up to the people, by constitutional amendment, to remedy these errors. A constitutional amendment is needed, not only to preserve marriage, but to restore constitutional order.”

Steve Farrell writes: “We can’t turn over the fate of the family to nine folks in robes. Judicial tyranny is not for you and not for me. It’s time to reign these judges in, and remind them that constitutions are set up to preserve the values of a society, not overthrow them.”



Richard Wilkins, Marriage and the Constitution: Why We Need an Amendment

Earl Taylor Jr, “Marriage and the Constitution”, NCCS, April 2004.  Referenced at:  http://www.nccs.net/newsletter/apr04nl.html

W. Cleon Skousen, The Making of America, 1985; The National Center for Constitutional Studies.

Steve Farrell, “Marriage and the Constitution: Time for an Amendment?,” Newsmax, March 3, 2004.  Referenced at:  http://archive.newsmax.com/archives/articles/2004/3/3/134302.shtml

Steve Farrell, “Marriage and the Constitution: Time for an Amendment?,” Federal Observer, April 29, 2012.  Referenced at:  http://www.federalobserver.com/archive.php?aid=7369

“California Proposition 8,” Wikipedia.  Referenced at:  http://en.wikipedia.org/wiki/California_Proposition_8

Diane Rufino, “Perry v. Schwartzenegger: California Becomes the Latest Battleground for Gay Marriage Rights,” August 2010.  Referenced at:  http://forloveofgodandcountry.wordpress.com

Why a Marriage Amendment?

                 by Diane Rufino

My state of North Carolina is the latest state to face a possible erosion of traditional marriage. The question will be: How will its people react?  Marriage is a solid bedrock foundation of communities – the source of modeling, morality, and values. The lessons children learn go far beyond the mere words that parents speak.

Redefining marriage as a genderless institution has consequences. First, public schools will be legally required to teach same-sex marriage on an equal footing with traditional marriage. It will therefore take away the most fundamental right that parents have – to raise their children according to values they hold dear and according to their rights of religious conscience.  James Madison said: “Conscience is the most sacred of all property  – our greatest possession.”

Look at the situation in the schools in Massachusetts, where same-sex marriage has been legal since 2004.  One can find the book “King & King” by Linda de Haan and Stern Nijland in their elementary school libraries. The book tells the story of a queen who decided it was time for her son, the prince, to marry. He rejects every princess she offers. Finally the last candidate enters, and the prince feels “a stir in his heart.” But it was for one princess’s brother, Prince Lee.  The two men marry and the book reads: “Everyone lives happily ever after.” On the last page, the two princes kiss, with a red heart covering their mouths.

The book glorifies the idea that it’s perfectly OK to have same-sex marriage.

A grade school boy in California returned home from school and asked his mother: “Mom, am I gay?”  She wanted to know why he would ask such a question.  He told her that his teacher told the class that “anyone can be gay.”  Children shouldn’t be confronted with such questions. They shouldn’t have to entertain such possibilities or have to deal with such unnecessary confusion.  Growing up is hard enough.

Parents have a tough enough time raising their children with proper values and morals and they can’t keep fighting with a school system that wants social change rather than social stability. Providing a definition to the institution of marriage in NC would help ensure that teachers assign classic reading and not books like “King & King.”

And Now We Wait (for the healthcare ruling)

           by Diane Rufino

On Monday, March 26, the Supreme Court began oral arguments in the highly-anticipated case challenging the constitutionality of the Patient Protection & Affordable Care Act.  By Wednesday afternoon, the hearings had concluded.  The historic arguments consolidated an appeal from 26 states, a group representing several small businesses, and several individuals who contend that the 2010 health care law, President Obama’s signature legislative achievement, is unconstitutional.

Perhaps significantly, Justice Kennedy, the Court’s notorious swing vote, appeared to be very concerned about the status of young people with respect to the healthcare bill. He noted that the government hasn’t exactly been honest about its intentions with the bill, which was to offset the burden that uninsured individuals place on healthcare.

If the administration was really interested in preventing young people (many who are uninsured) from being such a burden, the healthcare plan would allow them to buy only catastrophic health insurance (instead of the plan that includes well visits, preventative care).  Catastrophic health insurance is all that 20-30 year-olds really need; It’s the only product that makes any economic sense for them.  But Obamacare doesn’t allow that. So, as Kennedy emphasized, we see what the healthcare bill is really all about. It’s about using 20-30 year-olds to subsidize the plan, to subsidize insurance for those who can’t afford it.  It’s about using young healthy people to fund the program.  It’s about a social scheme.

As we all know, the government’s plan is to subsidize health insurance for everyone, especially those who are uninsured and sick (approximately 20% of all uninsured). The plan forces insurance companies to cover the sick. But it doesn’t want to use the typical means to pay for this – such as tax subsidies.  Instead, the government wants to reach OUTSIDE the market and COMPEL a whole bunch of healthy people into that market so they can be used to subsidize the program and help bring healthcare premiums down.  In fact, this was the finding by Congress: that bringing young healthy people into the market will bring down the health insurance premium by about 15% for everyone.  Unfortunately, though, it will force them to buy something they don’t need or want.

The healthcare challenge, on its face, is about the Individual Mandate – the government’s belief that it has the power under the Commerce Clause to force Americans to purchase the specific health insurance it dictates, even those who don’t need it.  It is also about the fundamental scheme in place, established by our Founders and memorialized with the Tenth Amendment, that the federal government is a government of limited powers with the bulk of powers being reserved to the States where they can most effectively regulate for the health, safety, welfare, and morality of their people. It is about the section of the bill which enlarges the Medicaid program and coerces the States to participate in its healthcare scheme by threatening to withhold all Medicaid funding should they decide not to.  According to the states, the sheer volume of the federal funding at stake leaves them with no practical capacity to withdraw from Medicaid.  By placing all of a state’s federal Medicaid dollars at risk for the failure to adhere to the healthcare bill’s conditions, they claim the Act also amounts to compulsion.  And furthermore, they claim that conditions imposed on state governments to implement the scheme constitutes impermissible commandeering of the states and their resources.

But the underlying issue is individual liberty.  It is about the right of an individual to be free from government compulsion – not being forced to do something against one’s will or spending one’s money (that is, what remains after the government takes its cut in the form of income taxes) on things one don’t want or need.  It’s the fundamental right to conduct one’s life the way he or she feels fit and to make his or her own personal decisions.  It’s the basic right “to be left alone” by government.

And the decision, therefore, will speak volumes about how strongly our nation’s highest court is committed to this grand notion of individual liberty. We already know that there are several justices who believe in an expansive view of government and use the court to evolve its responsibilities. And there are those justices who believe in the strict interpretation of the Constitution and in limits to federal power.  And then there is Justice Kennedy, who can be defined by neither classification. His opinion may turn out to be the deciding factor in this case.

All eyes are usually on Justice Kennedy, the genial justice who sits on the fence, often keeping interested parties nervous as to which side he will side with – the liberal bloc (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan)  or the conservative bloc (Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and the Chief Justice John Roberts). Kennedy was appointed to the bench in 1988 by President Reagan, after the Senate failed to confirm his first choice, committed originalist Robert Bork. Reagan also appointed Justice Scalia.  At the time of his appointment, he was a judge on the US Court of Appeals for the Ninth Circuit, appointed by President Gerald R. Ford. The Ninth Circuit is known as the most liberal of the circuit courts, and in fact, tried to remove the words “Under God” from the Pledge of Allegiance. Justice Kennedy’s crucial swing vote has often been the decisive factor in many of our most important and controversial cases of recent years.

  • Boy Scouts of America v. Dale (2000; upholding the Boy Scouts of America’s organizational right to ban homosexuals from being scoutmasters.  He joined the conservative justices in this decision)
  • Lawrence v. Texas (2003; finding the right of homosexual men to engage in sodomy in the privacy of their home thereby overturning an earlier Supreme Court decision which banned the practice. He joined the liberal justices on this decision)
  • Kelo v. City of New London (2005; holding that local government has the power to take private property for economic development through the use of eminent domain. He joined the liberal justices in this decision)
  • United States v. Lopez (2005: holding that possession of a gun in a local school zone is not an economic activity that might, in the aggregate, have a substantial effect on interstate commerce because the conduct at issue has nothing to do with “commerce.” He joined the conservative justices in this decision)
  • Kennedy v. Louisiana (2008; holding that the 8th Amendment bars Louisiana from imposing the death penalty for the heinous rape of a child where the crime did not result, and was not intended to result, in the victim’s death, although the injuries were so extensive, doctors don’t know how she survived. Kennedy joined the liberal justices on this decision)
  • Boumediene v. Bush (2008; a case challenging the legality of Boumediene’s detention at Guantanamo Bay. Kennedy sided with the four liberal justices in finding that the constitutionally guaranteed right of habeas corpus applies to persons held in Guantanamo Bay and to persons designated as enemy combatants on that territory)
  • District of Columbia v. Heller (2008; holding that the 2nd Amendment confers an individual right to keep and bear arms; All four of the liberal justices believe it only applies to state militias and therefore prevents individuals from having the right to possess guns in their homes)
  • McDonald v. City of Chicago (2010; holding that Heller applies to the States through the 14th Amendment. holding that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. Kennedy sided with the conservative justices in asserting that these rights are “fundamental to the nation’s scheme of ordered liberty” and are “deeply rooted in this Nation’s history and tradition” and hence are appropriately applied to the states through the 14th Amendment)
  • Brown v. Plata (2011; holding that releasing violent criminals from an over-crowded prison is a proper remedy to address the violation of prisoners’ 8th Amendment guarantee against ‘cruel and unusual punishment’ caused by long wait times to see prison doctors and less-than-ideal medical accommodations)

In the 2008–2009 term, there were 16 decisions in which the justices split strictly along ideological lines. Kennedy joined the conservative members of the Court eleven times and the liberals only five.

And so, all eyes were on Justice Kennedy in the case against the Patient Protection & Affordable Care Act (PPACA) and all ears were open to his questions and comments, in the hopes of providing a glimpse into his mindset regarding the administration’s huge power grab under the Act.

On the first day of hearings, the justices had to entertain whether the healthcare challenge is even allowable under the Anti Injunction Act (AIA), a federal tax law that says, in essence, that a taxpayer cannot challenge a tax until it comes into effect.  The provision at issue is the penalty portion of the Act, which requires that almost every individual purchase health insurance by 2014 or pay a penalty. The questions before the Court were twofold: (1)  Can the penalty be classified as a “tax” and therefore implicate the AIA?  And (2)  If so, is it then premature for the court to consider the present challenge to the individual mandate?

Justice Breyer asked point blank: “Where I see the problem is in the part of the AIA which refers to the ‘assessment or collection of any tax.’  Now, Congress has nowhere used the word ‘tax.’  What it says is ‘penalty.’ Moreover, this is not in the Internal Revenue Code ‘but for purposes of collection.’  And so why is this a tax?”  He further emphasized that lawmakers intentionally did not use the term when they crafted the legislation nor did they intend the penalty as a tax.

Justice Ruth Bader Ginsburg, another liberal member of the Court,  also expressed skepticism. “This is not a revenue-raising measure because, if it’s successful, nobody will pay the penalty and therefore there will be no revenue to raise.”

Judging on the arguments and discussion made the first day, it seems likely the case will be decided and not postponed.  Even the administration’s lawyer, Solicitor General Donald B. Verrilli urged the justices to decide the merits of the dispute. “This case presents issues of great moment,” he said.

On the second day of hearings Verrilli faced a barrage of skeptical questions from four of the court’s more conservative justices, including Justice Kennedy.  The questions posed to him went straight to the central issue in the case and that is whether the federal government can compel individuals not engaged in commerce to buy a product – health insurance – and hence become part of that commerce in order to be regulated. “Can you create commerce in order to regulate it?” Justice Kennedy asked.  That was his very first question of the day.  He later told Mr. Verrilli that the federal government faced “a heavy burden of justification” for the Individual Mandate and pressed him to articulate “some limits on the Commerce Clause.”

The court focused on whether the mandate for Americans to have insurance “amounts to an affirmative duty to engage in commerce” and is therefore “an unprecedented step beyond what our cases allow,” which is how Justice Kennedy phrased the issue. He then told Verrilli: “With this law, you are changing the relationship of the individual to the government.”

Chief Justice Roberts asked: “So, can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? That way, you can just dial 911 no matter where you are?”  Verrilli tried to argue that Roberts’ scenario was distinguishable from the health care market.  But Roberts fired back: “It seems to me that’s the same as in my hypothetical. You don’t know when you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do, and the government provides it. I thought that was an important part of your argument, that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best of its ability that you get it.”

Justice Alito asked Solicitor General Verrilli: “Do you think there is a, a market for burial services?”  He answered in the affirmative. Alito then continued: “All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re going to shift the cost to somebody else. Isn’t that a very artificial way of talking about what somebody is doing?”  Verrilli didn’t agree.  But Alito pushed further: “And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services?  See, I don’t see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?  If you don’t have money then someone has to pay… Whether the State or a family member.  And isn’t that what the mandate is doing?  You can correct me if these figures are wrong, but it appears to me that the CBO (Congressional Budget Office) has estimated that the average premium for a single insurance policy in the non-group market would be roughly $5,800 in — in 2016.  The administration estimates that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but if those figures are right, isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume?  It is requiring them to subsidize services that will be received by somebody else.”  Verrilli acknowledged that this was in fact the case.

Chief Justice Roberts commented: “It’s critical how you define the market. If I understand the law, the policies that you’re requiring people to purchase involve – must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase.  Your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you’re requiring people who are never going to need pediatric or maternity services to participate in that market.”

He then asked: “If the government can force people to buy health insurance can it require people to buy certain types of cars?  Broccoli?”  Justice Scalia hinted that if everyone were forced to buy a new car, it might help lower the costs of new cars for everyone.

Scalia offered his interpretation of the government’s case: “I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it. That approach is different from the regulation of any type of commerce that already exists out there.”

Solicitor General Verrilli tried to paraphrase the government’s position: “Our position is that it’s not an illegitimate exercise of the commerce power for some people to subsidize others. You’re young and healthy one day, but you don’t stay that way. And the system works over time.”

Justice Scalia spoke up: “We’re not stupid. They’re going to buy insurance later. They’re young and need the money now.  When they think they have a substantial risk of incurring high medical bills, they’ll buy insurance, like the rest of us. You seem to suggest that they are never going to buy it.  You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a condition that is going to require medical treatment, or at least not require them to sell it to him at a rate that he sells it to healthy people.  But you don’t want to do that.  And to me, that seems like a problem created by the government – a self-created problem.”

Chief Justice Roberts added: “You say your argument is limited to health insurance  But once you establish that you have a market for health care, would you suppose Congress’s power under the Commerce Clause is broad in scope with regard to how they  they regulate that market. I don’t see how we can accept your argument that ‘it’s just insurance.’  Once we say that there is a market and Congress can require people to participate in it, as some would say – or as you would say, that people are already participating in it – it seems to me that we can’t say there are limitations on what Congress can do under its commerce power.  It could regulate the market in any rational way.  Congress has chosen to regulate the health care market. Everybody’s in it, they said, so it can be regulated. This year, they looked at a particular serious problem, which is how people pay for it.  And they decided to compel people to purchase insurance. But next year, they can decide to look at something else – a different problem – and decide how they are going to regulate it. And they’ll be able to do it because they’ve already accepted the argument that this is a market in which everybody participates.”

Scalia jumped in: “I tell you what the something else is. The something else is everybody has to exercise, because there’s no doubt that lack of exercise cause — causes illness, and that causes health care costs to go up. So the Federal government says everybody has to join an exercise club. That’s the something else.”

Mr. Verrilli tried to explain: “What matters here is whether Congress is choosing a tool that’s reasonably adapted to the problem that Congress is confronting. And that may mean that the tool is different from a tool that Congress has chosen to use in the past.”

Justice Scalia responded: “Well, that’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure. The argument here is that this also may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What is left?  If the government can do this, what, what else can it not do?  But that’s not the only constitutional principle at stake in this case. An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that’s a principle?”  Verrilli so acknowledged.

Scalia continued: “I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.”

Justice Kennedy added:  “The reason this Mandate is concerning is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.  And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.”

Chief Justice inserted: “The States are not limited to enumerated powers, but the Federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States.”

Another issue that came up was whether the penalty could be classified as a tax (returning to some degree to the topic touched on the day before).  If the penalty could be classified as a tax, then the thought is that the Individual Mandate could be supported, in the alternative, under Congress’ “Tax and Spend” powers.  Justice Scalia quickly noted that “the President has said it isn’t a tax.”  Then Justice Ginsberg added: ” A tax is to raise revenue, tax is a revenue-raising device, and the purpose of this exaction is to get people into the health care risk pool before they need medical care, and so it will be successful. If it doesn’t raise any revenue, if it gets people to buy the insurance, that’s what this penalty is designed to do – to affect conduct. The conduct is buy health protection, buy health insurance before you have a need for medical care. That’s what the penalty is designed to do, not to raise revenue.”

At that point, the Solicitor General stepped down and the respondents’ attorney (that is, for the states), Mr. Clement was given time before the Court.  He immediately struck down the administration’s position that the Individual Mandate (the penalty, in particular) could be legally supported under the Taxing power.  As he told the Court: “I think it might raise some issues about whether or not that would be a valid exercise of the taxing power. My constitutional concern is that it would be a disguised impermissible direct tax. And we all know that Congress is limited in its ability to impose direct taxes. The one thing I think the framers would have clearly identified as a direct tax is a tax on not having something. I mean, the framing generation was divided over whether a tax on carriages was a direct tax or not. Hamilton thought that was a indirect tax; Madison thought it was a direct tax. I have little doubt that both of them would have agreed that a tax on not having a carriage would have clearly been a direct tax. I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages.”

Attorney Clement then moved on to the market that the government is trying to dominate: “What health insurance does and what all insurance does is it allows you to diversify risk. And so it’s not just a matter of I’m paying now instead I’m paying later. That’s credit. Insurance is different than credit. Insurance guarantees you an upfront, locked-in payment, and you won’t have to pay any more than that even if you incur much great expenses. And in every other market that I know of for insurance, we let people basically make the decision whether they are relatively risk averse, whether they are relatively non-risk averse, and they can make the judgment based on…”

Justice Sotomayor interrupted: “But we don’t in car insurance, I mean the states don’t.  Let me ask you a question:  Do you think that if some states decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?”

Clement answered: “Let me say this, you’re right in the first point to say that it’s the states that do it, which makes it different right there.”

Justice Kennedy asked:  “Isn’t everyone in the market in the sense that they are creating a risk that the market must account for?”  Similarly, Justice Kagan asked:  “If the effect of all the uninsured people is to raise everybody’s premiums, not just when they get sick, if they get sick, but right now in the aggregate, and Wickard and Raich  tell us we should look at the aggregate, and the aggregate of all these uninsured people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.” [Wickard v. Filburn (wheat case; 1924, holding that Farmer Filburn couldn’t grow wheat for his own use because, if other were to do the same, then in the aggregate, all these farmers would have no need to buy wheat on the open market and would therefore affect commerce) and Gonzalez v. Raich (medical marijuana case; 2005; holding that California’s Compassionate Use Act, which legalized marijuana for medical use, conflicted with the federal government’s Controlled Substances Act, which is a valid exercise of Congress’ commerce powers)].

Mr. Clement disagreed.  He answered: “Let’s be careful about what they were regulating in Wickard. What they were regulating was the supply of wheat. It didn’t in any way imply that they could require every American to go out and buy wheat. And yes, one of the consequences of regulating local market participants is it’ll affect the supply and the demand for the product. That’s why you can regulate them, because those local market participants have the same effect on the interstate market that a black market has on a legal market……

That aside, I don’t think the point you make distinguishes the healthcare market from other markets. When I’m sitting in my house deciding I’m not to buy a car, I am causing the labor market in Detroit to go south. I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare. So the cost shifting that the government tries to uniquely to associate with this market, it is everywhere. And even more to the point, the rationale that they think ultimately supports this legislation, that look, it’s an economic decision, once you make the economic decision, we aggregate the decision, there is a substantial effect on commerce. That argument works here. It works in every single industry.  There are other markets that affect every one: transportation, food, burial services, though we don’t like to talk about that either. There also are situations where there are many economic effects from somebody’s failure to purchase a product. My unwillingness to buy an electric car is forcing up the price of an electric car. If only more people demanded an electric car there would be economies of scale, and the price would go down………

If I could talk about the difference between the health insurance market and the health care market…… If some private company comes up with a great new wonder drug that would have huge benefits for everybody’s health and if everybody had to buy it, it would facilitate economies of scale, and the production would be efficient, and the price would be cheaper and force everybody in the health care market, the actual health care market to buy the wonder drug, and if the government wanted to compel people to take this drug, I’d be up here making the same argument. I would be saying that there is no such authority within the commerce power of the federal government. In Federalist 45, Madison says the commerce power is a new power, but it’s not one anyone has any apprehension about. And the reason they didn’t have any apprehension about it is because it’s a power that only operated once people were already in commerce. You see that from the text of the clause. The first kind of commerce Congress gets to regulate is commerce with foreign nations. Did anybody think the fledgling Republic had the power to compel some other nation into commerce with us?  Of course not.  And in the same way, I certainly don’t think the framers had understood the commerce power to include the power to compel people to engage in commerce.”

At that point, Attorney Clement stepped down and Michael Carvin, the attorney representing several small businesses (National Federation of Independent Businesses, NFIB), addressed the Court to argue the unconstitutionality of the PPACA.  ”I’d like to begin with the Solicitor General’s main premise, which is that they can compel the purchase of health insurance in order to promote commerce in the health market because it will reduce uncompensated care. If you accept that argument, you have to fundamentally alter the text of the Constitution and give Congress plenary power. It simply doesn’t matter whether or not this regulation will promote health care commerce by reducing uncompensated care; all that matters is whether the activity actually being regulated by the act negatively affects Congress or negatively affects commerce regulation, so that it’s within the commerce power. If you agree with us that this is — exceeds commerce power, the law doesn’t somehow become redeemed because it has beneficial policy effects in the health care market. In other words, Congress does not have the power to promote commerce. Congress has — Congress has the power to regulate commerce. And if the power exceeds their permissible regulatory authority, then the law is invalid…  Think about it this way…  when you’ve entered the marketplace they can impose all sorts of restrictions on you. But what can’t they do?  I think everyone intuitively understands that regulating participants after A and B have entered into a contract is fundamentally less intrusive than requiring the contract in the first place.”

Justice Ginsberg asked: “Isn’t the only way to prevent people from paying for the cost-free healthcare of those who are sick and uninsured to have people pay sooner rather than later?”

Carvin answered: “The real problem are those who default on their health care payments. That is an entirely different group of people, an entirely different activity than being uninsured. The people who impose the costs on the rest of us are people who engage in a different activity at a different time, which is defaulting on their health care payments. It’s not the uninsured. Under Justice Kagan’s theory, you could regulate anybody if they have got a statistical connection to a problem. You could say, since we could regulate people who enter into the mortgage market and impose mortgage insurance on them, we can simply impose the requirement to buy private mortgage insurance on everybody before they have entered the market because we are doing it in this prophylactic way before it develops.”  [Chief Justice Roberts interrupted to note that not everyone enters the housing market while everyone eventually enters the healthcare market]  Carvin continued: “And my basic point to you is this: the Constitution only gives Congress the power to regulate things that negatively affect commerce or commerce regulation. It doesn’t give them the power to regulate things that are statistically connected to things that negatively affect the commerce. If they have that power, then they obviously have the power to regulate everything because everything in the aggregate is statistically connected to something that negatively affects commerce, and every compelled purchase promotes commerce.”  (I admit, I initially had a hard time following that).

Finally, Mr. Carvin ended with these words: “We turn you to the Commerce Clause jurisprudence that bedeviled the Court before the 1930s, where they were drawing all these kinds of distinctions among industries; whereas our test is really very simple. Are you buying the product or is Congress compelling you to buy the product?  I can’t think of a brighter line.  And again, if Congress has the power to compel you to buy this product, then obviously, they have got the power to provide you – to compel you to buy any product, because any purchase is going to benefit commerce, and this Court is never going to second-guess Congress’s policy judgments on how important it is this product versus that product.  The words “inactivity” and “activity” are not in the Constitution.  But the words “commerce” and “noncommerce” are.  It’s a distinction that comes directly from the text of the Constitution…..     The Framers consciously gave Congress the ability to regulate commerce, because that’s not a particularly threatening activity that deprives you of individual freedom. If you were required, if you were authorized to require A to transfer property to B, you have, as the early cases put it, a monster in legislation which is against all reason in justice, because everyone intuitively understands that regulating people who voluntarily enter into contracts in setting changing conditions does not create the possibility of Congress compelling wealth transfers among the citizenry. And that is precisely why the Framers denied them the power to compel commerce, and precisely why they didn’t give them plenary power.”

On the third day of oral arguments, the Court engaged in a discussion of severability – whether the healthcare bill could survive if the Individual Mandate was struck down and whether other provisions could still survive.  It was a tortuous line of questioning. Justice Scalia suggested many members of Congress might not have voted for the bill without the central provisions, and so perhaps it wouldn’t be fair to allow remaining portions of the bill to survive.  He also was emphatic that it was not the province of the Court to go through each and every page to sort out which provision should remain and which should go.  He even joked that being required to read the 2,700-page bill should fall under the 8th Amendment’s concept of “Cruel and Unusual Punishment.”  Justice Sotomayor argued that it was Congress’ job to fix or scrap the bill, should the mandate be found unconstitutional.  Opponents of the bill argued against severability, suggesting that simply striking the mandate while leaving in place corresponding new insurance regulations could result in a spike in premiums that Congress did not intend.

In the afternoon session, the justices considered a challenge by the 26 states to the expansion of the Medicaid program for low-income Americans, an important feature in the effort extending health insurance to an additional 30 million people. The court’s liberal justices made it fairly clear they will vote to uphold the Medicaid expansion, which would take in 15 million people with the federal government paying almost all the costs. They did not seem to agree with the challengers that expansion of the program is unconstitutionally coercive.  Justice Kagan asked: “Why is a big gift from the federal government a matter of coercion?”

Attorney Clement defended the states’ position: “Let me focus on what I think are the three hallmarks of this statute that make it uniquely coercive. One of them is the fact that this statute is tied to the nonvoluntary individual mandate. The second factor, of course, is the fact that Congress here made a distinct and conscious decision to tie the state’s willingness to accept these new funds, not just to the new funds but to their entire participation in the statute, even though the coverage for these newly eligible individuals is segregated from the rest of the program. In other words, if a state doesn’t want to cover the newly eligible individuals, it not only doesn’t get the new money, it also doesn’t get any of the money under the original contact, agreement (old money).  What’s coercive is not the absolute guarantee that the secretary could cut off every penny, but the fact that she could. And the third factor is the sheer size and scope of Medicaid. The expansion of Medicaid since 1984 is really breathtaking. In 1984 the Federal spending to the States was a shade over $21 billion for Medicaid. Right now it’s $250 billion, and that’s before the expansion under this statute. If the Secretary should withhold all funding for a state’s poor population, that state would have an impossible time coming up with the funds on its own to cover those people.”

Hopefully, we know where Justice Kennedy stands on matters that threaten to upset the balance of power created under our federalist system. In short, he has never been one to want to enlarge the government’s status with regard to its relationship to the States.

The arguments and answers given on day two of course represent the meat of the case. I believe it is the closing remark by Attorney Carvin which holds the key to how Justice Kennedy will ultimately view the Individual Mandate.  He emphasized that the ability to regulate commerce was not the same as compelling commerce for the latter would deprive individuals of individual liberty. I believe in his final analysis, Justice Kennedy will look at the implications the Individual Mandate has on individual liberty – the very precious intangible that our Founders so judiciously and ambitiously sought to protect and promote.

I point to two fairly recent cases to highlight Justice Kennedy’s views on Liberty and Federalism – United States v. Lopez (1995) and Bond v. United States (2011).  His words make his intentions clear. I believe his firm belief in the concept of federalism and the liberty interests it serves is an important insight as to how he may come down on the healthcare question, and especially the Individual Mandate.

In Lopez, the Court was asked to decide the constitutionality of a federal statute – the Gun-Free School Zones Act of 1990, which made it a crime for any individual to “knowingly possess a firearm at a place that [he] knows…is a school zone.”  Alfonzo Lopez, a high school senior, carried a concealed weapon into his San Antonio, Texas high school and was arrested and charged under Texas law with firearm possession on school premises. The next day, the state charges were dismissed after federal agents charged Lopez with violating a federal criminal statute, the Gun-Free School Zones Act.  Lopez challenged the federal statute on the grounds that it exceeded the power of Congress to legislate conduct in the states under the Commerce Clause.  Justice Kennedy agreed with the majority that the conduct the federal statue sought to regulate was not in fact “commerce” and therefore was an unconstitutional exercise of authority.  He wrote a concurring opinion:

The history of our Commerce Clause decisions contains at least two lessons of relevance to this case. The first, as stated at the outset, is the imprecision of content-based boundaries used without more to define the limits of the Commerce Clause. The second, related to the first but of even greater consequence, is that the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. Congress can regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy.

In referring to the whole subject of the federal and state balance, we said this just three Terms ago: ‘This framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses: first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government’s role.’  It does not follow, however, that in every instance the Court lacks the authority and responsibility to review congressional attempts to alter the federal balance. This case requires us to consider our place in the design of the Government and to appreciate the significance of federalism in the whole structure of the Constitution.

Of the various structural elements in the Constitution, separation of powers, checks and balances, judicial review, and federalism, only concerning the last does there seem to be much uncertainty respecting the existence, and the content, of standards that allow the judiciary to play a significant role in maintaining the design contemplated by the Framers. Although the resolution of specific cases has proved difficult, we have derived from the Constitution workable standards to assist in preserving separation of powers and checks and balances. These standards are by now well accepted and judicial review is also established beyond question, Our role in preserving the federal balance seems more tenuous.

There is irony in this, because of the four structural elements in the Constitution just mentioned, federalism was the unique contribution of the Framers to political science and political theory. Though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.”  James Madison, Federalist No. 51

Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. . . . In the tension between federal and state power lies the promise of liberty.  The Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself. Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.

The theory that two governments accord more liberty than one requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States. If, as Madison expected, the federal and state governments are to control each other, see Federalist No. 51, and hold each other in check by competing for the affections of the people, see Federalist No. 46, those citizens must have some means of knowing which of the two governments to hold accountable for the failure to perform a given function. Federalism serves to assign political responsibility, not to obscure it. Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory. The resultant inability to hold either branch of the government answerable to the citizens is more dangerous even than devolving too much authority to the remote central power.

To be sure, one conclusion that could be drawn from The Federalist Papers is that the balance between national and state power is entrusted in its entirety to the political process. Madison’s observation that “the people ought not surely to be precluded from giving most of their confidence where they may discover it to be most due,” (Federalist No. 46) can be interpreted to say that the essence of responsibility for a shift in power from the State to the Federal Government rests upon a political judgment, though he added assurance that “the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered, Whatever the judicial role, it is axiomatic that Congress does have substantial discretion and control over the federal balance.

For these reasons, it would be mistaken and mischievous for the political branches to forget that the sworn obligation to preserve and protect the Constitution in maintaining the federal balance is their own in the first and primary instance. In the Webster-Hayne Debates and the debates over the Civil Rights Acts before the Senate Committee on Commerce (88th Congress; 1963), some Congresses have accepted responsibility to confront the great questions of the proper federal balance in terms of lasting consequences for the constitutional design. The political branches of the Government must fulfill this grave constitutional obligation if democratic liberty and the federalism that secures it are to endure.

Although it is the obligation of all officers of the Government to respect the constitutional design, the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.

Our ability to preserve this principle under the Commerce Clause has presented a much greater challenge. This clause has throughout the Court’s history been the chief source of its adjudications regarding federalism no other body of opinions affords a fairer or more revealing test of judicial qualities.  But as the branch whose distinctive duty it is to declare what the law is, are often called upon to resolve questions of constitutional law not susceptible to the mechanical application of bright and clear lines. The substantial element of political judgment in Commerce Clause matters leaves our institutional capacity to intervene more in doubt than when we decide cases, for instance, under the Bill of Rights even though clear and bright lines are often absent in the latter class of disputes. But our cases do not teach that we have no role at all in determining the meaning of the Commerce Clause.

The statute before us upsets the federal balance to a degree that renders it an unconstitutional assertion of the commerce power, and our intervention is required. As the Chief Justice explains, unlike the earlier cases to come before the Court here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus. The statute makes the simple possession of a gun within 1,000 feet of the grounds of the school a criminal offense. In a sense, any conduct in this interdependent world of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce power may reach so far. If Congress attempts that extension, then at the least we must inquire whether the exercise of national power seeks to intrude upon an area of traditional state concern.

If a State or municipality determines that harsh criminal sanctions are necessary and wise to deter students from carrying guns on school premises, the reserved powers of the States are sufficient to enact those measures. Indeed, over 40 States already have criminal laws outlawing the possession of firearms on or near school grounds.”


In the case of Bond v. United States, a woman was convicted of trying to poison her husband’s mistress. (24 times over several months). He had had a child with the mistress while still married to Bond. The government tried to convict her under a federal statute designed to go after terrorists and so she sued, claiming that she should have been convicted under an applicable state criminal statute.  The Court of Appeals for the Third Circuit held that Bond lacked standing to challenge the statute. The Supreme Court, in a unanimous decision, held that a criminal defendant who has been convicted under a federal statute can challenge that conviction on grounds that the statute is unconstitutional. In this particular case, the Court held that the statute exceeded the federal government’s powers with respect to the Tenth Amendment.  Justice Kennedy wrote the majority opinion:

“The federal system rests on what might at first seem a counter-intuitive insight, that “freedom is enhanced by the creation of two governments, not one.” Alden v. Maine, 527 U. S. 706, 758 (1999). The Framers concluded that allocation of powers between the National Government and the States enhances freedom, first by protecting the integrity of the governments themselves, and second by protecting the people, from whom all governmental powers are derived.

The principles of limited national powers and state sovereignty are intertwined.  While neither originates in the Tenth Amendment, both are expressed by it. Impermissible interference with state sovereignty is not within the enumerated powers of the National Government, see New York v. United States, 505 U. S. 144 (1992), at 155–159, and action that exceeds the National Government’s enumerated powers undermines the sovereign interests of States.  See United States v. Lopez, 514 U. S. 549, 564 (1995). The unconstitutional action can cause concomitant injury to persons in individual cases.

Federalism has more than one dynamic. It is true that the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another. The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States.  The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.

But that is not its exclusive sphere of operation. Federalism is more than an exercise in setting the boundary between different institutions of government for their own integrity. “State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.

Some of these liberties are of a political character. The federal structure allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’  [All of these would protect and enlarge individual liberty and protect against an oppressive “one-size-fits-all” approach].

Federalism secures the freedom of the individual. It allows States to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power. True, of course, these objects cannot be vindicated by the Judiciary in the absence of a proper case or controversy; but the individual liberty secured by federalism is not simply derivative of the rights of the States.

Federalism also protects the liberty of all persons within a State by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. [See ibid]. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.

The limitations that federalism entails are not therefore a matter of rights belonging only to the States. States are not the sole intended beneficiaries of federalism. An individual has a direct interest in objecting to laws that upset the constitutional balance between the National Government and the States when the enforcement of those laws causes injury that is concrete, particular, and redressable. Fidelity to principles of federalism is not for the States alone to vindicate.”


The outcome of this historic case against the massively oppressive healthcare reform bill will no doubt shape the legacy of the Roberts’ Court, influence President Obama’s re-election prospects, and potentially deepen the ideological rift that is already dividing the country.  But most importantly, the outcome will determine what impact the US Constitution still has on protecting the individual from the pernicious reaches of government.



United States v. Lopez, 514 U.S. 549 (1995).  Referenced at:  http://www.law.cornell.edu/supct/html/93-1260.ZO.html

Bond v. United States, 564 U.S. ___ (2010).

“Anthony A. Kennedy,” NY Times, March 29, 2012.  Referenced at:  http://topics.nytimes.com/top/reference/timestopics/people/k/anthony_m_kennedy/index.html

Transcript and Audio for Monday’s Arguments:  http://www.politico.com/news/stories/0312/74477.html

Transcript and Audio for Tuesday’s Arguments:  http://www.npr.org/2012/03/27/149465820/transcript-supreme-court-the-health-care-law-and-the-individual-mandate

Transcript and Audio for Wednesday’s Arguments:  http://www.npr.org/2012/03/28/149548299/transcript-audio-supreme-court-the-health-care-law-and-medicaid-expansion

Audio for Tuesday’s arguments:  http://apne.ws/Hft6z3

Audio for Wednesday’s arguments:  http://apne.ws/GX1p23  (morning) and  http://apne.ws/GXdZOP  (afternoon).

“The Supreme Court Arguments Are Over – What Happens Now?,” Kaiser Health News, March 29, 2012.  Referenced at:  http://www.kaiserhealthnews.org/Daily-Reports/2012/March/29/supreme-court-big-picture-wrap-up.aspx