Philip Hamburger’s essay is a simple, elegant, truthful, and noble statement of the judicial role by one of this country’s leading legal historians.  Over the years, Professor Hamburger has been distinguished for the fearless and wise way he has approached our legal and constitutional traditions, and his ability to cut through currently popular academic cant.  It sometimes seems that for most American legal academics legal and constitutional history begins in 1954, with the United States Supreme Court’s unanimous decision in Brown v. Board of Education, when the Court declared, with alarmingly little basis in Constitutional law, that it had the power to reformulate the nation’s educational system, and, in that decision, and in many that followed,  the Court began to remake the American polity on lines more in accordance with advanced academic and political legal opinion.  Thus the Warren Court proceeded to place new restrictions on state police practices, on the ability of state governments to redistrict their legislatures, on the ability of states to regulate contraceptives, and, eventually, on the ability of states to outlaw abortion or consensual homosexual conduct.   While for a time, at least, the United States Supreme Court has somewhat receded from this kind of national policy making, some of the state courts have carried the torch forward, most notably finding in state Constitutions a heretofore undiscovered right for gay people to marry.  Now one might argue that all of these things are eminently sensible and liberty-favoring developments, but the point is that they are examples of judicial law-making, not judging.

Hamburger  takes his inspiration from the Federalist, and, in particular, Hamilton’s famous Federalist 78, and he repeatedly quotes the idea expressed there that it is the job of a judge to exercise judgment, not will.  Implicit in Hamburger’s  analysis is also Hamilton’s famous quotation from the Baron de Montesquieu’s Spirit of the Laws (1748) in Federalist 78 that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”  Law-making is supposed to be for the popular branches of our governments, and not the judges.   As Hamburger clearly implies, judicial review —  the ability of judges to declare that legislative acts infringe the Constitution, and ought therefore to be disallowed — is nothing that hasn’t existed for hundreds of years in our Anglo-American Constitutional tradition (Hamburger is one of our most distinguished historians of judicial review). Still,  in this country, as Hamilton argued in Federalist 78, judicial review can only be justified if the judges, in interpreting the Constitution, are expressing the popular will, as expressed in that document.  To read into the Constitution currently trendy social, psychological, ethical, or moral notions, as the Warren and Burger courts routinely did, is, simply stated, a betrayal of our tradition.

Hamburger’s piece, and the reminder of our traditions, and, in particular, the legitimacy of judicial review, could not come at a more important time, because this country is about to face its greatest Constitutional crisis in the early Twenty-First Century.  This will happen in a few months when the Supreme Court rules on the Constitutionality of the recently-passed Patient Protection and Affordable Care Act (the “PPACA,” known as “Obamacare” to its critics).   The PPACA, thousands of pages long, amounts to the assertion that the federal government can dictate the governing policies for the 1/6 of the national economy devoted to health care, and, in particular, for the first time in American history, invokes congress’s Constitutional power to regulate interstate commerce in order to compel virtually all Americans to buy a product – health insurance – whether they believe they need it or not.   There certainly is no doubt that the commerce power has broadly been construed by the Supreme Court in the past — in order, for example, to allow the federal government to regulate the growing of wheat or cannibis  for home consumption — but the PPACA is, as far as I know, the very first time the federal government has mandated the purchase of a particular product from private parties, and the first time, really, that the commerce power has been asserted to regulate not commerce, but a decision not to engage in commerce.

There are some arguments that do support this assertion of Congressional power, chiefly based on the claim that if Congress can regulate the growing of products for home consumption there really are no limits to Congress’s powers, but this argument flies in the face of the Tenth Amendment, which Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  Traditionally this Amendment has been construed to mean that the United States government is one of limited and enumerated powers, and that the general power to legislate for the public welfare, usually referred to as “the police power,” rests with the states.  This principle is also often referred to as “dual sovereignty,” or “federalism,” expressing the national ideal that the federal government is not supposed to usurp the powers traditionally assigned to the states, because it has been our tradition that those governments closest to the people — the state and local governments — ought to be those entrusted with the most control over our lives.

Liberty, it has been believed by most Americans, is best secured when the federal government, an overweening central government, is kept in bounds.  This is the philosophy expressed in the Tenth Amendment, and that philosophy seems quite inconsistent with the PPACA, because if the mandates of the PPACA are Constitutional, there does not seem to be much that the federal government is any longer prohibited from doing.  If we can be compelled to buy health insurance, there would seem to be nothing stopping Congress from mandating the purchase of other goods, from electric cars to green vegetables, as all of these might be construed as having an effect on health care or interstate commerce.

What is at stake in the Supreme Court’s upcoming decision on the PPACA, then, is nothing less than the continuance of our traditional policy of limited government, of the preservation of liberty, and, in short, of the rule of law itself.  It is this, the rule of law, that judges must protect, and it is their task — exercising judgment not will, as he and Hamilton remind us – to preserve liberty and Constitutional government by doing so.    Hamburger, perhaps a less alarmist scholar than am I, doesn’t say so, but judicial behavior in the second half of the Twentieth Century had all but cashiered the rule of law, in order to implement the policies favored by much of the legal academy and a powerful segment of American political opinion.  A school of Constitutional interpretation, not named by Hamburger, but known generally as that faithful to the notion of “a living Constitution,” one that can be altered by judges to meet what they perceive as the changing needs for justice or redistribution has established itself as the currently dominant view in the academy, and virtually all legal academic opinion seems to be in accord with the view that the old Tenth Amendment restrictions are no longer fit for American life in the Twenty-First century.  Thus, when the Speaker of the House, Nancy Pelosi, was challenged on the Constitutionality of the PPACA, she simply asked her interlocutor, “Are you serious?”

The pressure from the academy, and from certain political interests, will thus be strong on the Court to uphold the PPACA, but if the Court does so, it will amount to an end of the judicial role that Hamburger so simply, brilliantly, and lucidly limns.  If the Tenth Amendment still means anything, then the PPACA goes too far, and the Court must strike it down.   For some years now we have been in the very strange position where one of our major political parties, the Republicans, have made it a part of their platform to rail against “judicial activism,” by which they argued that the Supreme Court’s decisions interfering with state and local governments were illegitimate, and the other party, the Democrats, demanded that judicial nominees demonstrate “empathy” for the poor and downtrodden in society, and thus promise to carry out the purportedly justice-promoting efforts of the Warren Court and its federal and state successors.  Hamburger’s essay reminds us that this political battle obscures the judicial task as one which ought to be devoted to preserving the rule of law and the liberty it guarantees.  The friends of American liberty and the rule of law will be watching the Supreme Court this June to see if it heeds Hamburger’s wise words.