Why Justice Kennedy should rule ‘no’
Court’s key swing vote should kill ‘Obamacare’, which gives government too much power over our lives.
Justice Anthony Kennedy is, in a sense, the king of the United States of America. As the deciding vote on the U.S. Supreme Court in dozens of important cases where the liberals and conservatives are evenly divided, he has become, in effect, a jurisprudential monarch (hence columnist Mark Steyn’s nickname for him, “the Sultan of Swing”). He has been the final word on everything from the 2000 Bush-Gore presidential election to partialbirth abortion and terrorist detention. And now he will, in all likelihood, decide the constitutionality of the Patient Protection and Affordable Care Act — aka Obama care.
Whether it is good news for America that one man has so much power is a conversation for another day. The pressing question is whether Kennedy’s role as judicial Solomon is good news for supporters of Obama care or its critics. And the short answer is: Nobody knows.
Justice Kennedy is famous — infamous? — for dramatically changing his mind at the last moment. He’s also renowned for basing his decisions in grandiose moral theories in the hope of imposing a national consensus where it doesn’t exist. As legal scholar Jeffrey Rosen put it in a lengthy 2007 profile for The New Republic, “In Kennedy’s
Evidence of his method
mind, the messy realities behind real laws must yield to his idealizing moral abstractions.” The most notorious example of the Kennedy method came in the 1992
Planned Parenthood v. Casey decision in which he ruled to uphold Roe v. Wade. In a section famously derided by his fellow Justice Antonin Scalia as the “sweet-mystery-of-life passage,” Kennedy wrote:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.”
Kennedy’s detractors on the right think this is so much gobbledygook. But let’s assume it does mean something to at least one very important person: Kennedy. And if that’s the case, then opponents of the health reform law — like me — have good reason to hope he will overturn it. During last week’s marathon hearings, Justice Kennedy asked Solicitor General Donald Verrilli, “When you are changing the relation of the individual to the government in this . . . unique way, do you not have a heavy burden of justification to show authorization under the Constitution?” By using the commerce clause to, in effect, force citizens into a contract, Obamacare is setting a precedent whereby the federal government can compel citizens to do almost anything. For all the talk about making citizens eat broccoli, the fact is that the government couldn’t offer any valid “limiting principle” to what the state can do through the commerce clause.
Federal vs. state
Moreover, as Kennedy himself has written, our federal system whereby people live under two distinct governments — state and federal — is a bulwark of liberty. “The Framers concluded,” Kennedy observed last year in Bond
v. United States, “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 world Obamacare ushers in bulldozes distinctions between federal and state government.
But that’s a prosaic concern com- pared with the larger metaphysical issues at stake.
The recent brouhaha over religious liberty and birth control is just a foretaste of the bitter pills to come once the government is granted unprecedented influence over the most personal transactions in life, and when the chief concerns of bureaucrats will be to preserve the health and solvency of “the system” rather than the health or sovereignty of the individual.
Simply put, a country fully under the heel of Obamacare is a country where the state has too much say in how people define personhood and the meaning of life. By forcing people to buy health insurance, by giving unelected boards and bureaucrats unaccountable power over our lives, and not inconceivably our deaths, Obamacare violates the ideal of self-government at the core of the Constitution. And it seems hard to imagine that you can fundamentally alter the concept of selfgovernment without infringing upon the liberties recounted in Justice Kennedy’s soliloquy on the sweet mystery of life.
One can only hope the king of America stays true to his own edicts.
Jonah Goldberg, author of the forthcoming book The Tyranny of Clichés, is a member of USA TODAY'S Board of Contributors.